The Volokh Conspiracy

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Court Can't Resolve Dispute Stemming from Rabbis' Condemning Use of Competing Kosher Certifier


From Nassau County (N.Y.) Justice Randy Sue Marber's decision last week in Chimichurri Chicken Corp. v. Vaad Hakashrus of the Five Towns Far Rockaway (see also this New York Post [Lisa Fickenscher] article about the filing of the lawsuit [UPDATE: link fixed]):

The Plaintiff operates a restaurant in Cedarhurst, Nassau County, called "Chimichurri Charcoal Chicken." The Defendant is a New York State Religious Corporation also located in Cedarhurst. The Defendant was founded to certify, according to its standards, retail companies and commercial companies that cater to the Jewish consumer within the area of Long Island colloquially known as the "Five Towns," which includes Cedarhurst, as Kosher.

According to the Complaint, Plaintiff, beginning in or about November 2015, was awarded and thereafter maintained a Kosher Certification from the Defendant, reflecting Plaintiff's compliance with Kosher standards developed by Defendant. Defendant provided Plaintiff with this Kosher Certification in exchange for a fee. On or about July 5, 2020, Plaintiff sent a letter to Defendant stating that it would no longer be using it for Kosher Certification, electing instead to use a newly formed entity, non-party Mehadrin of the Five Towns ….

Plaintiff's rationale in switching Kosher certifiers was that Defendant only provided Kosher certifications for Ashkenazi Orthodox Jews. Plaintiff had noticed that there was an influx, into the Five Towns area, of Spanish/Portuguese Sephardic Orthodox Jews. Plaintiff wished its Kosher certification to be accepted by as many potential customers as possible, so it switched to Mehadrin, which provided Kosher certifications for Ashkenazi and Sephardic Jews.

Following the Plaintiff's termination of its relationship with the Defendant, Defendant published … a letter dated July 9, 2020 … from 53 Rabbonim (Rabbis) addressed to the Five Towns and Far Rockaway community, which reads as follows:

To our Beloved Five Towns and Far Rockaway Community:

Our community is very unique in that we have a hashgocha {a kosher supervising agency} where the kashrus [kosher law] professionals work under the auspices of the community Rabbonim. In the day to day running of our Vaad, the kashrus professionals answer to a rotating board of community Rabbonim and lay leaders reflecting a broad cross-section of the community.

There is a great advantage in having a single universally recognized hashgocha in a community. In communities with competing hashgochas, the consumer is often ill informed of the specific reliability of each kashrus organization, which leads to confusion, and inevitably lower standards of kashrus. Our community is unique in that any community resident or visitor, who sees the certificate of the Vaad Hakashrus of the Five Towns and Far Rockaway, can eat without any hesitation as to the quality of the kashrus. Due to the transparency through which the Vaad operates, even a consumer who accepts stricter standards, can know with certainty whether a given establishment is appropriate for him.

Two Rabbonim in the community have recently formed a new hashgocha, the "Mehadrin of the Five Towns" which certifies Five Fifty Restaurant and Shoppe, Chimichurri Charcoal Chicken, and Keneret Fish Market. We have no personal ill feeling toward the Rabbonim who provide the hashgocha, and are always open to consider and incorporate opposing views to enhance the kashrus standards of our community. However, after careful consideration, we cannot in good conscience, recommend that one rely on this hashgocha.

We are aware that kashrus issues are often contentious, and can easily lead to discord within a community. However, we feel strongly that maintaining high standards of kashrus is best accomplished when the vast majority of the community Rabbonim volunteer their time to direct our kashrus professionals, with no motive other than ensuring the best interest of our community. This is done by Rabbonim who have nothing to gain other than enhancing the religious life in our community. When the field of kashrus is opened up to those who do not collaborate with the vast majority of community Rabbonim, there will be an inevitable decline in both standards and unity. We therefore discourage the members of our community in the strongest terms, from patronizing local food establishments that are not under the hashgocha of the Vaad of the Five Towns and Far Rockaway.

As a rule, it is worthwhile to remember that if one sees an unfamiliar hashgocha it is wisest to consult with your trusted local Rabbonim for guidance, just as you do for all religious matters. The established Rabbonim of the Five Towns and Far Rockaway have earned the trust of its residents over many decades of selfless service and dedication. It would be tragic to throw this valuable relationship away in one of the most important amas of Judaism. With heartfelt prayers that our sincere efforts to enhance kashrus and religious life in our community are successful.

The Plaintiff states that as a result of the publication of this letter, its business declined precipitously, with a loss in revenue total in excess of $156,000 per year, based on various Jewish Community Centers cancelling their orders and other consumers refusing to patronize their business.

The Plaintiff then brought this action against defendant alleging four causes of action. The first cause of action is for "injurious falsehood." The second and third causes of action are for "tortious interference with prospective economic advantage." The fourth cause of action is for antitrust violations under the Donnelly Act. Plaintiff asserts, for its complaint, that the July 9 letter was defamatory, containing deliberate falsifications about Plaintiff's and Mehdarin's adherence to Jewish dietary laws….

"The First Amendment forbids civil courts from interfering or determining religious disputes because there is a substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs." Judicial involvement is permitted "only when a case can be decided solely upon the application of neutral principles of law without reference to any religious principle."

Here, the dispute is essentially one that involves the religious principles concerning the Kashrut, or Jewish dietary laws. Cases have long recognized that such disputes are ecclesiastical in nature…. "There is considerable disagreement over what precepts or tenets truly represent the laws of kashrut. There are differences in opinion concerning the application and interpretation of the laws of kashrut both within Orthodox Judaism and between Orthodox Judaism and other branches of Judaism."

Underscoring the fact that this dispute is ecclesiastical in nature is the language of the Complaint itself. The Plaintiff terminated its relationship with the Defendant providing Plaintiff with a Kosher Certification because it wished to abide by a different standard. The Defendant, in sending the July 9 letter, advised the Five Towns Community of this change and noted its disagreement therewith. In fact, one of the emails the Plaintiff received from a former consumer highlights this exact point, stating:

I can't believe you have [Kosher Certification] from anything other than the Five Towns and Far Rockaway the Vaad [sic]. I love your food and was planning on making a big order on [M]onday for a birthday party. It has taken 30+ years to get all the rabbi's [sic] in the community on [sic] same page and you disregard the importance of a common [Kosher Certification] all will accept.

It is apparent that the Defendant represents the efforts of the Five Towns and Rockaway community to break away from the historical disagreement over the laws of Kashrut and to develop generally agreed upon standards for that particular community. The Plaintiff chose to deviate from that. This Court is precluded, by the First Amendment, from considering the merits of the Plaintiff's contentions arising from these facts….

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.