Should the government enforce dietary laws?

Jacob Sullum
Posted: Feb 28, 2003 12:00 AM
According to New York Gov. George Pataki, observant Jews in his state are caught in "suspended animation," unsure about which foods comport with their dietary rules. He says this uncertainty was created by the U.S. Supreme Court's recent decision to let stand a ruling that overturned New York's kosher food laws. Before you start shipping relief packages to the hungry, bewildered Jews of New York, consider a couple of facts. The laws Pataki portrays as essential to Jewish religious practice were adopted in 1915. That's a long time ago, but not nearly as long as Jews have been keeping kosher. How did they manage for the first few thousand years? In a nutshell, they relied on the judgment of reputable religious authorities, which is what they still do. Hundreds of organizations supervise food manufacturers, retailers, restaurants, and caterers, certifying their products as kosher. All consumers have to do is look for a symbol or name they trust. On national brands, there are several widely accepted stamps of approval, including the "OU" (Orthodox Union), "OK" (Organized Kashrut), and "star-K" (Star-K Kosher Certification). Kosher stores and restaurants typically are supervised by rabbis familiar to local residents. To protect consumers from fraud, all the government needs to do is make sure that no business claims a certification it has not earned. New York went further than that, which is why it ran into trouble with the courts. Last year, the U.S. Court of Appeals for the 2nd Circuit concluded that New York's kosher laws -- which required that food labeled as kosher be "prepared in accordance with the orthodox Hebrew religious requirements" -- violated the Establishment Clause. "The challenged laws excessively entangle government and religion," the court ruled, because they "require the State to take an official position on religious doctrine" and "take sides in a religious matter, effectively discriminating in favor of the Orthodox Hebrew view of dietary requirements." The state had to take sides because Jewish authorities don't always agree on the details of dietary rules. Some Orthodox Jews, for instance, insist on food that is not only kosher but glatt (END ITAL) kosher, a distinction based on the condition of an animal's lungs. The Conservative movement accepts as kosher some foods, including swordfish and wine made by non-Jews, that the Orthodox movement does not. In the case that led to the 2nd Circuit's ruling, a Long Island butcher supervised by a Conservative rabbi was cited and fined repeatedly by the state's Division of Kosher Law Enforcement, which was run by an Orthodox rabbi. The owners insisted their rabbi had approved the preparation methods the state deemed faulty. I'm not sure the Framers would have considered it an unconstitutional "establishment of religion" for the government to participate in this sort of squabble, but it is certainly divisive and unnecessary. Consumers who insist on Orthodox supervision can always shop elsewhere. While the states, under prodding from the courts, are gradually getting out of the business of determining what is kosher, the federal government is taking on a question even more challenging: What is "organic"? That is the puzzle addressed by 554 pages of standards that took effect last year after more than a decade of work. The preference for organic food, like the preference for kosher food, is essentially religious, based on faith rather than science. There is no good evidence, for example, that the pesticide residues organic produce buyers are so keen to avoid pose a significant health risk. Rational or not, the demand for organic food is undeniable, and businesses should be free to fill it. But it's not clear why the government needs to weigh in on questions such as whether a chicken can be "organic" even if its food is not -- the subject of a recent controversy triggered by a provision that a Georgia congressman snuck into a spending bill at the behest of a local chicken processor. What about a chicken that does not get out much? The national standards require access to outdoor recreation, although the connection to organicalness is hazy. Likewise, it's not obvious why genetically modified ingredients or irradiation to kill parasites should render food nonorganic. Advocates of a national standard, including many food producers, felt such issues would never be resolved unless the government stepped in. But why not allow a variety of standards, each catering to a different set of preferences, enforced by private organizations that consumers trust? Naah. That would never work.