Overdone
Katherine B. Walton January/February 1998
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Though some people's meals might be bad, imagine facing criminal charges because of your cooking. That's exactly what happened to George Barghout.
Mr. Barghout, formerly the owner and operator of a yogurt shop located in Baltimore, sold both kosher and nonkosher foods. On November 15, 1990, he was fined $400 plus $100 in court cost's because he cooked kosher hot dogs on a rotisserie next to nonkosher sausages and hot dogs.
Rabbi Kurefeld, the city kosher inspector who cited Barghout, explained that his method of hot dog preparation, which permits grease from the sausages and nonkosher hot dogs to touch the kosher hot dogs, and thus robs the kosher hot dogs of their kosher status. Thus Barghout was found guilty of violating a Baltimore city ordinance (Section 50 of Article 19) created to "prevent intentional mislabeling of Kosher foods."
With the help of Susan Goering, an attorney for the American Civil Liberties Union, Barghout successfully proved that the city ordinance violated the First Amendment.
The law in question, Section 49 of the city ordinance, established not only a Bureau of Kosher Meat and Food Control (a government body of six inspectors that adhere to Orthodox Jewish regulations to determine violations of kosher standards), but required appointment of three rabbis and three laypersons chosen by Orthodox Jewish associations to enforce the ordinance.
Section 50, more overdone than section 49, sanctions criminal punishment of any person who markets food labeled "kosher" that isn't. Unfortunately, in order to comply with the provisions of this section, merchants dealing with kosher meat must adhere to, and abide by, Orthodox Hebrew religious rules, regulations, and dietary laws. Because Jewish sects differ in their interpretation of kosher standards, the ordinance would require the civil courts to engage in the forbidden process of interpreting and weighing religious doctrine. Furthermore, courts are neither equipped nor permitted to resolve such questions in criminal prosecution.
So Barghout, in fact, was punished for violating a religious law.
Barghout spent years in court fighting this law. Finally the U.S. Court of Appeals concluded that the plaintiff (Barghout) was correct in stating that ". . . the ordinance advances religion by elevating the laws of kosher to legal status and that the ordinance," and the law "expressly adopts the 'Orthodox Hebrew religious rules' as the preferred religious standard."
Officials in Baltimore said they may appeal the ruling in Mayor and City Council of Baltimore v. Barghout. "We think the law is constitutional," senior city solicitor Burton H. Levin told the Baltimore Sun. "We believe this consumer protection law can be enforced without advancing religion and without entangling religion and the government."
Rather than try to save this half-baked law, perhaps the city should follow the advice of the court and seek to accomplish their worthy objectives by other means. In fact, lawmakers could pass an ordinance that requires vendors of kosher foods to identify the organization or persons who have verified the kosher status of the food. The city could then prosecute only those vendors whose food was not in fact certified as kosher by the named organization or person. Thus a prosecution for kosher fraud, said the court, would focus not on whether the challenged food is kosher, "but whether the kosher-certifying organization actually certified the food."
The Barghout case deals with a lot more than hot dogs, food labels, or even the possibility of being fined or imprisoned because of cooking methods. Instead, it's about careless lawmakers, who, in an effort to accommodate free exercise of religion, trampled on the establishment clause.
Oliver Wendell Holmes once said that he knew a statute was unconstitutional if it made him want to "puke." What lawmakers cooked up with Section 49 and 50 would seem to be just that type of dish.
Katherine Walton is a homemaker and mother in Annapolis, Maryland.