It's Kosher, but It Stinks: How the Jewish State Has Failed Judaism – Again

The Supreme Court has just given state rabbis carte blanche to keep gorging on their monopoly over Israel’s kosher certification industry, at everyone’s expense.

Jerusalem's Sephardi Chief Rabbi Shlomo Moshe Amar signs a kashrut certificate, December 2014.
Itzik Harari

Long ago, before our lives took place mainly in front of screens, I was studying Talmud with a friend, and he asked me if I'd heard of the new database of rabbinic responses to questions of Jewish law.

"No," I said, "What does it do?"

"You put in your question, and the answer you want to get," he said, "and it tells you which rabbi to ask."

No, that wasn't meant as a real description of the project. But it did describe quite well the relation between observant Jews and their rabbis. A rabbi who is stricter (or more lenient) than the community can tolerate, or disdainful of it, or corrupt, will eventually lose his following. If he's not fired, people will drift away from him. This is the unwritten constitution of Judaism: Rabbis interpret the law, but Jews choose their rabbis.

Or that's the way it's supposed to be. But things are different in Israel, where we have a state rabbinate, a bureaucracy disconnected from the community it's meant to serve. It controls key aspects of religious life from the sublime - like whom you can marry - to the mundane, like whether a restaurant can call itself kosher. And this week the allegedly liberal Israeli Supreme Court stomped on a grass-roots effort to take Judaism back from the bureaucracy.

The ruling dealt with the 1983 Law to Prohibit Fraud in Kashrut. Now fraud is a bad thing, whether someone is selling pesticide-soaked cucumbers as safe or a meat soup with milk in it as kosher. But in contrast to pesticide levels, it's very hard to set an objective standard for what kosher means, beyond basics - no shrimp or bacon, no cheeseburgers, no bugs crawling in the flour from which the bread is baked. After that, there are fine points to dispute, on issues that fill many volumes. There's also no scientific standard way to measure or supervise kashrut. In fact, in some other times and places, suggesting that a kosher butcher needed supervision was considered an offense against his good name.

If the Knesset had wanted to prevent kashrut fraud, it could have added a line to the existing consumer-protection law, requiring anyone who put a sign saying "kosher" in his cafe window to say whether he had supervision, and by whom. It could have required the owner to keep an easily available list of the standards he followed, or that his supervisor used.

But our parliament chose to protect the clerical bureaucracy, not the public. The law says that to label your restaurant, butcher shop or hotel as kosher, you need certification from the Chief Rabbinate or the municipal rabbi. 

So anyone who wants to open a kosher restaurant, in a country where a large part of the population keeps kosher, is a hostage of the rabbinate. You pay for supervision even if the rabbinate's inspector doesn't show up - or does show up and asks for extra payment in cash. Local rabbinates can require restaurateurs to buy their vegetables from a particular supplier. At various times, they have made an issue of whether a hotel rented a hall for a New Year's Party or whether a belly-dancer performed at a family celebration.

Beyond the obvious opportunities for corruption, there's a basic flaw in the arrangement. Chief rabbis and their local counterparts are chosen by obscure bodies dominated by the clerical ("religious") parties. They and the kashrut inspectors they hire are usually either ultra-Orthodox or from the virtually ultra-Orthodox edge of religious Zionism. The community to whose standards they answer is starkly different from the larger kashrut-observing public, made up of Orthodox Jews who live mainstream Israeli lives and traditional Jews who keep kosher even if they drive on Shabbat.

But by order of the state, the natural, necessary connection between the rabbis and the community they serve has been broken. For ultra-Orthodox Jews, the bureaucracy is a source of jobs. For secular Jews, it's an inconvenience - and more than that if you're in the food business. For observant Jews, the arrangement is a constant constraint on religious freedom.

Laws, though, can't completely overcome the nature of Judaism. In recent years, more Orthodox Israelis have been getting married in private ceremonies, bypassing the rabbinate. In response, a line was somehow slipped into 2013 legislation making it a crime to conduct such a ceremony.  Really. To the best of my knowledge, though, no prosecutor has been foolish enough to bring such a case.

There's also been a grass-roots effort to liberate kashrut. Several years ago, a group of people created an alternative kashrut system called Hashgahah Pratit - a pun on the traditional term for personal Providence, here meaning "private supervision." It calls its inspectors "trustees" - responsible for creating trust between themselves, restaurateurs and the public. It makes its standards public. Over 25 businesses have joined so far.

Last year, then-Attorney General Yehudah Weinstein ruled that as long as the word "kosher" doesn't appear on alternative certificates, all is kosher legally as well.Then the Reform Movement's Center for Religion and State and two business owners decided (foolishly, as Yair Ettinger has explained) this wasn't enough. They petitioned the High Court of Justice to allow use of the word "kosher."

In its ruling this week, the court made things worse rather than better:  it rejected displaying alternative kashrut certificates of any sort, even without "kosher" appearing. The lead opinion, by Justice Noam Sohlberg, essentially says the law gave him no choice.

In all due respect, Your Honor, I don't buy it. Law isn't an exercise in linguistics. The choice isn't just about the dry meaning of words, and it has implications not written down in the judgment. I'm guessing the justices thought they were protecting the kashrut-observing public. They weren't. They protected only the rabbis that have been imposed on that public, and denied everyone else's right to choose.

Gershom Gorenberg is the author of "The Unmaking of Israel"and "The Accidental Empire: Israel and the Birth of the Settlements, 1967-1977." Follow him on Twitter: @GershomG