On appeal from the Superior Court, Appellate Division, whose opinion is reported at 243 N.J. Super. 232 (1990).
The opinion of the court was delivered by
In this appeal the Court is confronted with State consumer protection regulations that incorporate a complex body of religious doctrine and contemplate the assistance by clergy or religious experts in the interpretation and enforcement of that doctrine. Those regulations are challenged under the Religion Clauses of the federal and state constitutions that define and govern the relationship between religion and state.
Under regulations administered by the Division of Consumer Affairs, the State regulates the preparation, maintenance, and sale of kosher products. The regulations state that it is "an unlawful consumer practice" to sell or attempt to sell food "which is falsely represented to be Kosher." They define "Kosher" as "prepared and maintained in strict compliance with the laws and customs of the Orthodox Jewish religion." Those regulations were invoked by the Attorney General, who brought an enforcement action charging Ran-Dav's County Kosher, Inc. (County Kosher) and its principal, Arthur Weisman, with violations. The charged parties denied the allegations and claimed that the regulations violated the Religion Clauses of the federal and state constitutions. The constitutional claims were brought before the Appellate Division while the trial court retained jurisdiction of the enforcement action.
A majority of the Appellate Division upheld the constitutionality of the regulations. Ran-Dav's County Kosher, Inc. v. State, 243 N.J. Super. 232 (1990). A Dissenting opinion took the position that the regulations were unconstitutional. Id. at 259. The issue is whether the kosher regulations facially violate the provisions of the federal and state constitutions that prohibit government establishment of religion. The constitutional issue is substantial, and the Dissent brings the appeal to this Court as of right. R. 2:2-1.
We hold that the kosher regulations violate the Establishment Clauses of the federal and state constitutions. Our primary ground for that holding is that the regulations impose substantive religious standards for the kosher-products industry and authorize civil enforcement of those religious standards with the assistance of clergy, directly and substantially entangling government in religious matters.
The difficult and unusual issue presented on this appeal calls first for an explanation of the subject matter of the challenged regulations and an analysis of the regulatory standards and enforcement procedures. That explanation will inform the inquiry into whether the regulatory scheme takes government too far into the religious domain.
Regulations governing the kosher-foods industry were promulgated in 1984 by the Division of Consumer Affairs under the authority of the Consumer Fraud Act, N.J.S.A. 56:8-4. The regulations make it "an unlawful consumer practice" to sell or attempt to sell food "which is falsely represented to be Kosher." N.J.A.C. 13:45A-21.2.
The word "kosher" (from the Hebrew "kasher") means "fit" or "ritually correct." It is used to refer to, among other things, the Jewish dietary laws. The practice of "kashrut" within Judaism serves to attain "kedusha" or holiness and is a fundamental tenet of the religion. The origin of the kosher laws can be traced back to the Torah (the first five books of the Bible), but most of the laws concerning what is kosher have developed through centuries of Talmudic debates (debates regarding the application of the principles contained in the Torah) and rulings by rabbinic scholars. The dietary laws of "kashrut" set forth rules covering "(1) permitted and forbidden animals, (2) forbidden parts of otherwise permitted animals, (3) the methods of slaughtering and preparing permitted animals, (4) forbidden food mixtures, and (5) proportions of food mixtures prohibited ab initio but permitted ex post facto." 243 N.J. Super. at 241 (quoting 8 Encyclopedia of Religion 270-71 (1987)). The laws of kashrut are complex and exacting. For example, animals must be slaughtered in a prescribed manner by a trained person. Meat must be "koshered" according to specifically defined soaking and salting methods to draw out the blood. Ibid. Central to the doctrine of "kashrut" is the requirement of the "mashgiach," the religious authority who must supervise kosher butchers and certify compliance with the laws of kashrut. Without proper religious supervision, certain foods are simply non-kosher, even though constituted and prepared in identical fashion to kosher foods.
The court below suggested that there is universal agreement among the branches of Judaism that the standards governing the preparation and sale of food are those of Orthodox Judaism. Ibid. In fact, however, there is considerable disagreement over what precepts or tenets truly represent the laws of kashrut. There are differences of opinion concerning the application and interpretation of the laws of kashrut both within Orthodox Judaism and between Orthodox Judaism and other branches of Judaism. Herman Wouk, This Is My God (1959), reprinted in The Life of Torah 98-99 (Jacob Neusner ed., 1974). See Rabbi Hayim Halevy Donin, To Be a Jew 102-104, 112-119 (1972); Rabbi J. David Bleich, Contemporary Halkhic Problems 84-92 (1977). Some disputes arise in light of new technologies used in the preparation of foods. Bleich, supra, at 86-92. Other disputes arise because many members of the non-Orthodox branches of Judaism take divergent approaches to the adherence to the laws of kashrut, considering certain foods to be kosher even when not prepared in the strictest compliance with certain commonly accepted principles. Wouk, supra, at 99. See Donin, supra, at 103-04, 118-19.
Controversies over kosher products center not only on the nature of the products themselves but on the persons supervising their preparation. Wouk, supra, at 99; Donin, supra, at 112, 115, 118. Disputes constantly arise within Orthodox Judaism over the legitimacy of the various religious authorities purporting to ensure that food is kosher. See, e.g., Kashrus Magazine, September 1990, 26-32 (publishing a "Seven Page Guide" of over 100 rabbinically-supervised kosher supervision services worldwide, but withholding endorsement of any particular service with the following disclaimer: "Some of the [supervision services] are not relied upon by most of the kosher world. Consult your rabbi for which symbols you should use.").
Because the laws of kashrut are so complex, compliance with them is highly labor intensive. Kosher food therefore costs more than non-kosher food. Because of those higher prices, and because most consumers cannot determine whether foods labeled as "kosher" were prepared under "kosher standards," unscrupulous vendors can reap substantial profits by misleading consumers into believing their products are kosher. 243 N.J. Super. at 251.
The false promotion of non-kosher foods harms a variety of consumers. Observant Jews may be induced, unwittingly, to break the laws of their religion. Kosher foods are important not only to Jews but to many other persons as well. Adherents to certain other faiths, especially those forbidding the consumption of pork, purchase kosher food to comply with their own religious requirements. People with particular health problems, such as shellfish allergies, buy kosher products to avoid troublesome food. Finally, some members of the general public believe that kosher meat is superior to non-kosher meat because it is prepared under especially close scrutiny. Id. at 247-48.
Those concerns are reflected in the social impact statement accompanying the initial adoption of the kosher regulations:
The preparation of Kosher foods involves certain slaughtering and sanitary procedures and often results in a more expensive food product. These rules make it illegal to falsely represent food as Kosher or Kosher for Passover and thus protect the consumer who, for reasons of religion, conscience, quality or health, intends to purchase Kosher foods.
The regulations were substantially amended in 1987. See 19 N.J.R. 1060(a) (statement accompanying 1987 amendments). The regulations address the preparation, maintenance and sale of kosher products. Throughout, the regulations refer explicitly to the "Orthodox Jewish religion" and the "laws and customs" of that religion to specify the standards that apply to the kosher food industry. "Kosher" is defined by the regulations to mean "prepared and maintained in strict compliance with the laws and customs of the Orthodox Jewish religion." N.J.A.C. 13:45a-21.1. The regulations also impose complicated guidelines governing the actual handling of foods. For example, the regulations expressly require that "Kosher meats must be maintained Kosher and must be properly deveined and, with the exception of liver, washed within 72 hours after slaughter, and within each subsequent 72 hours period in accordance with the laws and customs of the Orthodox Jewish religion." N.J.A.C. 13:45A-21.3(a)(2)(i). Establishments that deal in both kosher and non-kosher food must comply with detailed regulations regarding separation of the former from the latter. Ibid. Reflecting the necessity for religious supervision, establishments that sell only kosher food must advise the Director of Consumer Affairs of their rabbinical supervision. N.J.A.C. 13:45A-21.5.
Violations of the regulations are subject to the penalties of the Consumer Fraud Act, namely, injunctions, N.J.S.A. 56:8-8, and fines, N.J.S.A. 56:8-13 (imposing fines up to $2,000 for first offense, up to $5,000 for subsequent offenses). Civil enforcement of the regulations is undertaken by the Bureau of Kosher Enforcement within the Division of Consumer Affairs, in the State Department of Law and Public Safety, which is under the jurisdiction of the Attorney General. The State Kosher Advisory Committee shares responsibility for the enforcement of the regulations. The Attorney General created that Committee, pursuant to the Consumer Fraud Act and the kosher regulations, by Executive Directive No. 1987-2. The Committee consists of ten rabbis appointed by the Attorney General, nine of whom are orthodox rabbis, the tenth being a conservative rabbi. The Chairman of the Committee is the Chief of the Bureau of Kosher Enforcement. The Committee's function is to "advise the Attorney General on Kosher matters and enforcement of the New Jersey Kosher regulations . . . and make recommendations for regulatory changes." 243 N.J. Super. at 240.
The record indicates that on five occasions during 1987-89, investigators employed by the Bureau of Kosher Enforcement inspected County Kosher and noted possible violations. First, an inspector noticed calves' tongues soaking in a full-strength brine solution. Pursuant to N.J.A.C. 13:45A-21.3(a)(2)(i), Kosher meat must be deveined, but those tongues had not been deveined. Next, an inspector found six boxes of Shelat brand chicken breasts in a storage freezer, a brand of chicken that recently had been determined to be non-kosher. The storage of kosher food with non-kosher food is prohibited by N.J.A.C. 13:45A-21.3(a)(1)(ii). Third, inspectors observed blood and a vein in meat that was to be ground for hamburger, contrary to N.J.A.C. 13:45A-21.3(a)(2)(i). Finally, an inspector noted a problem involving the labeling of meat. County Kosher's operations are supervised by an orthodox rabbi who contended that the establishment's activities complied with the kosher laws. Nevertheless, the foregoing incidents formed the basis of the consumer fraud charges against appellants.*fn1
The First Amendment to the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The United States Supreme Court has explained: "The First Amendment's Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State." Lee v. Weisman, U.S. , , 112 S. Ct. 2649, 2656, 120 L. Ed. 2d 467, 482 (1992) (1992 WL 138525 at 8). The Religion Clauses of the First Amendment have been applied to the states since Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed.1213 (1940) (Free Exercise Clause) and Everson v. Board of Education, 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed.711 (1947) (Establishment Clause).
The New Jersey Constitution also contains a Religion Clause. "There shall be no establishment of one religious sect in preference to another." N.J. Const. art. I, para. 4. In Tudor v. Board of Education of Rutherford, 14 N.J. 31, 45 (1953), cert. denied, 348 U.S. 816, 75 S. Ct. 25, 99 L. Ed. 644 (1954), Chief Justice Vanderbilt stated that under both the federal and state constitutions, "the state or any instrumentality thereof cannot under any circumstances show a preference for one religion over another." This Court has observed that New Jersey's Religion Clause, which contains no reference to the "free exercise" of religion, "is less pervasive, literally, than the Federal provision," Clayton v. Kervick, 56 N.J. 523, 528 (1970), vacated on other grounds, 403 U.S. 945, 91 S. Ct. 2274, 29 L. Ed. 2d 854 (1971), and therefore the Court has not been impelled to interpret the state constitution more broadly than the federal constitution in cases implicating the establishment of religion. Right to Choose v. Byrne, 91 N.J. 287, 313 (1982); Marsa v. Wernik, 86 N.J. 232, 239-40 n.2, cert. denied, 454 U.S. 958, 102 S. Ct. 495, 70 L. Ed. 2d 373 (1981); Resnick v. East Brunswick Township Bd. of Education, 77 N.J. 88, 104 (1978); Clayton v. Kervick, supra, 56 N.J. at 528. In any event, interpretation of the state constitutional standard is informed by an understanding of federal constitutional doctrine concerning the establishment of religion.
The constitutional strictures on government action concerning religion seek to avoid certain evils. They include discrimination among religions or between religion and non-religion, symbolic union between government and a given religious faith or religion in general, sponsorship of the religious mission of a group, excessive entanglement between government and religion, and political divisiveness incited by the government's favoritism of a particular religious faith. See Grand Rapids School Dist. v. Ball, 473 U.S. 373, 390, 392-97, 105 S. Ct. 3216, 3227-29, 87 L. Ed. 2d 267, 281-86 (1985); Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 794-98, 93 S. Ct. 2955, 2976-78, 37 L. Ed. 2d 948, 975-77 (1973); Lemon v. Kurtzman, 403 U.S. 602, 611-15, 91 S. Ct. 2105, 2111-12, 29 L. Ed. 2d 745, 756-57 (1971); Walz v. Tax Comm'n, 397 U.S. 664, 674, 90 S. Ct. 1409, 1414, 25 L. Ed. 2d 697, 704 (1970); Torcaso v. Watkins, 367 U.S. 488, 495, 81 S. Ct. 1680, 1683-84, 6 L. Ed. 2d 982, 987 (1961).
The basic standard for determining the proper application of the Establishment Clause is the three-pronged test of Lemon v. Kurtzman, supra, 403 U.S. at 612-13, 91 S. Ct. at 2111, 29 L. Ed. at 756-57. However, in cases of state action that patently create denominational preferences, a different analysis controls. A law that creates "explicit and deliberate distinctions between different religious organizations" must be regarded "as suspect and [subject to] strict scrutiny in adjudging its constitutionality." Larson v. Valente, 456 U.S. 228, 246, 102 S. Ct. 1673, 1684, 72 L. Ed. 2d 33, 48-49 (1982); see Hernandez v. Commissioner, 490 U.S. 680, 109 S. Ct. 2136, 104 L. Ed. 2d 766 (1989).
The Appellate Division concluded that the regulations did not constitute a per se violation of the Establishment Clause under Larson. It determined that the regulations, by expressly adopting the laws of the "Orthodox Jewish religion," did not prefer Judaism over other religions, and that the enforcement of kosher standards does not disfavor or denigrate any other religion. 243 N.J. Super. at 250. It also accepted the State's argument that the regulations do not prefer Orthodox Judaism over other branches because merchants are free to observe dietary laws according to any standard they choose. Id. at 246-47.
The ruling of the Appellate Division that the regulations do not create a preference within the Jewish religion was based mainly on the assumption that the State's enforcement policy under the regulations allows merchants to apply their own sincerely held variant interpretations of kashrut. Id. at 246-47 & n.14, 249, 255, 257-59. However, the State apparently has abandoned its position that the regulations allow different interpretations of the kosher laws. Rather, it now contends that a uniform standard must be applied. See Discussion infra at (slip op. at 22-23). The clear implication of that change of position is that merchants sincerely believing that their products are kosher could nevertheless be prosecuted under the regulations if the State believes that their products do not conform to the standards of Orthodox Judaism as the State defines and applies them.
Despite our doubts surrounding the Appellate Division's ruling that the regulations are valid under the Larson test, we decline to invoke that standard, primarily because the record suggests uncertainty concerning both the precise meaning and the enforcement standards of the regulations. In any event, we are satisfied that because the kosher regulations directly, clearly, and inescapably violate the standards of Lemon, we need not resolve the issue of whether the regulations constitute a per se violation of the First Amendment under the Larson test.
Three elements must be met under Lemon, viz:
First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, . . . finally, the statute must not foster "an excessive government entanglement with religion."
[403 U.S. at 612-13, 91 S. Ct. at 2111, 29 L. Ed. 2d at 755 (quoting Walz, supra, 397 U.S. at 674, 90 $Ct. at 1414, 25 L. Ed. 2d at 704).)
Because the kosher regulations provide both substantive standards prescribing religious practices and procedures for their enforcement, the entanglement prong, which prohibits excessive government involvement in religious matters, is most germane in assessing the constitutional validity of the administrative scheme.
The prohibition against undue government involvement in religion "rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere. People of Illinois ex rel. McCollum v. Board of Educ., 333 U.S. 203, 212, 68 S. Ct. 461, 465, 92 L. Ed. 649, 659 (1948). This prong most closely connects the Lemon test to Jefferson's notion of a "wall of separation" between church and state. See Reynolds v. United States, 98 U.S. 145, 164, 25 L. Ed. 244, 249 (1879) (quoting reply from Thomas Jefferson to the Danbury Baptist Association, Jan. 1, 1802). The Supreme Court has stated, "Some limited and incidental entanglement between church and state authority is inevitable in a complex modern society, . . . but the concept of a "wall' of separation is a useful signpost." Larkin v. Grendel's Den, Inc., 459 U.S. 116, 123, 103 S. Ct. 505, 510, 74 L. Ed. 2d 297, 305 (1982).
In considering whether the kosher regulations foster excessive government entanglement with religion, we initially note that they impose substantive religious standards on establishments purporting to be kosher. Specifically, the regulations contain numerous requirements relating to religious practices essential in the preparation and maintenance of kosher foods. Further, those requirements must be met "in strict compliance with the laws and customs of the Orthodox Jewish religion." Hence, the administrative scheme does more than require that businesses purporting to be under a certain type of rabbinical supervision are in fact under that type of supervision; it requires such establishments to adhere strictly to religious kosher standards in the conduct of their business and authorizes the State to monitor the adherence to those standards. As a result, Jewish law prescribing religious ritual and practice is inextricably intertwined with the secular law of the State. Further, the State itself takes on the traditional religious supervisory role, thereby partially supplanting the Jewish organizations and institutions that historically have stood as final Judges of religious matters.
The State contends that the regulations control only the false promotion and sale of non-kosher products. It acknowledges that the regulations incorporate a substantive religious standard, but argues that doing so is necessary in order to protect consumers of kosher products from misrepresentation. However, the State's adoption and enforcement of the substantive standards of the laws of kashrut is precisely what makes the regulations religious, and is fatal to its scheme. The regulations govern the promotion and sale of kosher products by regulating their antecedent preparation and maintenance. They empower the State to establish fraud or misrepresentation in the promotion of the product by demonstrating that the product was not prepared and maintained in "strict compliance" with what the State itself believes to be "the laws and customs of the Orthodox Jewish religion." In that respect, as pointed out by the appellant, "the regulations do not police the nutritional quality or sanitary purity of kosher food, but only its religious purity." In doing so, they create an unconstitutional entanglement of government and religion analogous to that recognized in Spacco v. Bridgewater School Dep't, 722 F. Supp. 834, 844-47 (D. Mass. 1989), where a municipality leased a Catholic parish center for use as public elementary school, provided that the town's use of the center would "at all times be consistent with the teachings of the Roman Catholic Church enunciated by the Holy Father and the Bishops in communion with him."
The regulations thus squarely put the State's imprimatur behind certain foods that can be lawfully sold as kosher, and plainly punish merchants who, without State approval, insist that other foods are kosher as well. As we explain below, infra at (slip op. at 23-24), we cannot construe the regulations, as the Dissent would, as providing a "good faith" defense to enforcement actions by the State. Cf. post at (slip op. at 5-6). We stress, however, that our analysis is based on the Establishment Clause, not ...