The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Religion and the Law

Fraud Prosecution for Specific False Statements About Meat Claimed to Be Halal Allowed,

though laws generally banning mislabeling food as “halal” (or “kosher”) violate the Establishment Clause.


I just came across this interesting (and, I think, correct) 2015 decision by Chief Judge Linda Reade (N.D. Iowa) in U.S. v. Aossey:

On December 5, 2014, a grand jury returned a 92 count Indictment (docket no. 6) charging Defendants with [among other things] … making false statements on export certificates … [and] wire fraud ….

Defendants argue that "the government's attempt to mandate truthful statements in foreign export documents regarding Halal slaughter is prohibited by the Establishment Clause." …

In Commack Self–Service Kosher Meats, Inc. v. Weiss (2d Cir. 2002), the Second Circuit found that the kosher fraud statutes violated the Establishment Clause because they had a primary effect of advancing and inhibiting religion and created an excessive government entanglement with religion. The New York statutes "define[d] 'kosher' as 'prepared in accordance with orthodox Hebrew religious requirements,' mandate[d] adherence to those requirements, or [were] integral to the State's enforcement of such requirements." The Second Circuit held that the statutes required the government to "interpret 'kosher' as synonymous with the views of one branch, those of Orthodox Judaism" and, as a result, "the State has effectively aligned itself with one side of an internal debate within Judaism." The Second Circuit concluded that such statutes "excessively entangle the State of New York and religion, and therefore run afoul of the Establishment Clause." …

[T]he court finds that the statutes under which Defendants are prosecuted clearly have a secular purpose. Defendants concede that the crimes charged have "a facially valid secular purpose" but argue that there is a "less restrictive means" available to achieve the same ends. Defendants argue that "criminalizing false statements concerning the underlying slaughter[ ] is purely enforcement of religious beliefs that serves no valid secular purpose."

First, whether there is a less restrictive means is not relevant to the question of whether the government action has a secular purpose. In addition, the court disagrees with Defendants that criminalizing false statements is enforcement of religious beliefs that serves no secular purpose. Rather, the government's prosecution ensures that purchasers and consumers of meat products are protected, and it also protects the United States' reputation in the meat markets. These are purely secular purposes.

Next, the court finds that the instant prosecution neither advances nor inhibits religion in its principal or primary effect…. The government is not upholding or advocating for a particular religious interpretation. Rather, the government in this case merely seeks to enforce factually verifiable false representations….

[T]he court [also] finds that the instant prosecution does not foster excessive government entanglement with religion. Defendants argue that the court would be required to determine and apply foreign Halal slaughter requirements if the prosecution is allowed to move forward because the government is seeking to enforce the religious requirements of foreign countries.

However, neither the court nor the jury will be required to decide what Halal means. The government is not claiming merely that Defendants represented that they were selling Halal products that were not in fact Halal. Contrary to Defendants' assertion, neither the court nor the jury will be required to "determin[e] … whether religious slaughter requirements have been complied with."

Rather, the government is alleging that Defendants made specific, false representations, including: (1) Defendants did not use penetrative captive bolt stunning; (2) all of Defendants' beef products were hand-slaughtered; (3) a practicing Muslim recited a specific prayer while slaughtering; (4) Defendants did not sell leftover hindquarters from Kosher slaughters as Halal; (5) Defendants' meat products complied with the laws and requirements of Malaysia, Indonesia, Kuwait and the United Arab Emirates; and (6) the animals slaughtered were vegetarian fed. The government believes that Defendants made these allegedly false representations to convince their customers that their meat products were Halal.

The jury will not be required to determine whether the meat products were in fact Halal, but only to determine whether Defendants made the specific, false representations. The characteristics of Halal meat are irrelevant. This case would be different if the government merely alleged that Defendants represented their meat products as Halal, and the government believed the meat products were not Halal. However, the government alleges that Defendants did more than represent that their meat was Halal—the government alleges that they made express, false representations about the way Defendants' meat products were raised and slaughtered. "[T]he government, in its role as … enforcer, may interact with religious organizations." … [T]he government is not seeking to enforce a particular religious view. The mere fact that the government interacts with religion does not thereby cause the government action to violate the Establishment Clause.

Defendants also claim "that the Establishment Clause precludes jurisdiction over Halal slaughter due to the potential political divisiveness of enforcing the religious slaughter rules of foreign countries." The court takes no position as to whether this case may be politically divisive. However, even if the case were politically divisive, political divisiveness is not relevant to the Establishment Clause analysis. It is the court's role to adjudicate cases before it, politically divisive or not.

Because the Indictment has a secular purpose, neither advances nor inhibits religion in its principal or primary effect and does not foster an excessive government entanglement with religion, the court shall deny the Motions to the extent they argue that the instant prosecution violates the Establishment Clause….