European Court Says Ban on Halal and Kosher Slaughter Does Not Violate Human Rights Convention

 In Affaire Executife van de Moslims van Belgie et Autres c. Belgique, (ECHR, Feb. 13, 2024) [full opinion available only in French], the European Court of Human Rights, in a Chamber Judgment, held that Belgium had not violated Article 9 (freedom of religion) or Article 14 (prohibition of discrimination) of the European Convention on Human Rights when two regions in the country eliminated the exemption permitting ritual slaughter of animals without stunning. The decrees had the effect of prohibiting Halal and kosher slaughter of animals in the two regions. An English language press release from the Court describes the Court's opinion, in part, as follows:

The Court found that there had been an interference with the applicants’ freedom of religion and that this was prescribed by legislation, namely the Flemish and Walloon decrees. 

As to whether the interference pursued a legitimate aim, the Court observed that this was the first time that it had had to rule on the question whether the protection of animal welfare could be linked to one of the aims referred to in Article 9 of the Convention.

Article 9 of the Convention did not contain an explicit reference to the protection of animal welfare in the exhaustive list of legitimate aims that might justify an interference with the freedom to manifest one’s religion.

However, the Court considered that the protection of public morals, to which Article 9 of the Convention referred, could not be understood as being intended solely to protect human dignity in the sphere of inter-personal relations. The Convention was not indifferent to the living environment of individuals covered by its protection and in particular to animals, whose protection had already been considered by the Court. Accordingly, the Convention could not be interpreted as promoting the absolute upholding of the rights and freedoms it enshrined without regard to animal suffering. 

Emphasising that the concept of “morals” was inherently evolutive, the Court did not see any reason to contradict the CJEU and the Constitutional Court, which had both found that the protection of animal welfare was an ethical value to which contemporary democratic societies attached growing importance....

The Court noted that both decrees were based on a scientific consensus that prior stunning was the optimum means of reducing the animal’s suffering at the time of slaughter. It saw no serious reason to call this finding into question.

The Court further observed that the Flemish and Walloon legislatures had sought a proportionate alternative to the obligation of prior stunning, as the decrees provided that, if the animals were slaughtered according to special methods required by religious rites, the stunning process used would be reversible, without causing the animal’s death....

Michigan Prisons Implement Settlement Agreement on Religious Practices

In a press release yesterday, the Department of Justice announced that Michigan correctional authorities have now fully implemented prison reforms required by a 2021 settlement agreement. DOJ had alleged that various prison policies violated the Religious Land Use and Institutionalized Persons Act. The challenged policies required at least 5 people for group worship, barred group religious practices for Hindu, Yoruba, Hebrew Israelite and Thelema inmates and allowed access to the kosher Passover diet only to those who were on the year-round kosher diet.  According to DOJ's press release:

MDOC changed each of these policies to expand access to religious practice in compliance with the settlement. Under the revised policies, MDOC allows group religious practice for groups of two or more, permits previously banned religious groups to hold group services and allows people to participate in the Passover diet even if they do not participate in the kosher diet year-round. Department monitoring revealed that a significant number of people whose religious exercise was previously limited by policy can now worship together and can celebrate Passover consistent with their beliefs.

11th Circuit: Plaintiff Can Move Ahead with Claims Stemming from Denial of Kosher Meals in Jail

In Ravan v. Talton, (11th Cir., Feb. 27, 2023), the U.S. 11th Circuit Court of Appeals held that plaintiff who is Jewish should have been able to move ahead with RLUIPA claims against a food service and 1st Amendment free exercise claims against two food service workers for denial of kosher meals on seven different occasions while he was in a county detention center. The court said in part:

[I]ndividual defendants argue that depriving Ravan of a handful of meals over a period of months doesn’t constitute an impermissible burden on his religion. But the number of missed meals is not necessarily determinative because being denied three Kosher meals in a row might be more substantial of a burden on religion being denied three meals in three months, and for a diabetic, the denial of one meal may be a substantial burden. And the record is (at best) muddled about the number and timing of Kosher meals that Ravan was denied....

But we reach a different conclusion as to Summit Food Service. To state a claim against Summit Food Service, Ravan had to plead that the company had a custom or policy of not providing Kosher meals, or acquiesced in or ratified its employees’ doing so..... Ravan has not done so...

[I]nstitutions that receive federal funding are liable for monetary damages for violating RLUIPA.... But individual defendants aren’t.... We therefore reverse the dismissal of Ravan’s claim against Summit Food Service and affirm the dismissal of Ravan’s claims against the individual defendants.

"Ministerial Exception" Doctrine Applies to Claims by Kosher Wine Supervisor

In Markel v. Union of Orthodox Jewish Congregations of America, (CD CA, Jan. 3, 2023), a California federal district court held that the "ministerial exception" doctrine bars claims rooted in the California Labor Code brought against a synagogue organization by a mashgiach (kosher food supervisor) formerly employed by it. The court found that the Orthodox Union meets the requirements for a religious organization and that Markel should be categorized as a "minister", saying in part:

[T]he OU designated Markel as a head mashgiach at the Delano winery, and he was tasked with overseeing the kosher production of wine. Although a mashgiach may not be a "minister in the usual sense of the term—[he] was not a pastor or deacon, did not lead a congregation, and did not regularly conduct religious services"—Markel's title and assigned duties as mashgiach satisfy the first Hosanna-Tabor factor.... As mashgiach, Markel was integral to the koshering of wine for use by Orthodox Jews and the greater Jewish community, and his efforts were necessary in fulfilling an important function of the Jewish faith.

Second, Markel's position "reflected a significant degree of religious training followed by a formal process of commissioning." ...

Third, Markel's duties as a head mashgiach reflected the religious mission of the OU and the importance of supervising the kosher production of wine for the Orthodox Jewish faith.

Kosher Certification Agency Sues Airline For Unauthorized Use Of Trademarked Symbol

Suit was filed last week in a New Jersey federal district court by Kof-K, a kosher certification agency, against JetBlue Airways claiming that the airline used the agency's certification symbol without authorization on a pre-packaged in-flight artichoke snack.  The complaint (full text) in Kosher Supervision Service, Inc. v. JetBlue Airways Corp., (D NJ, filed 6/23/2022), alleges trademark infringement and other trademark violations,  unfair competition and consumer fraud. As reported by The Observer, Kof-K does not contend that the snack was not kosher. It merely contends that it had not certified it as such.

Dispute Over Kosher Certification Agencies Dismissed On Ecclesiastical Abstention Grounds

In Chimichurri v. Vaad Hakashrusof the Five Towns Far Rockaway, (Sup Ct Nassau Cnty NY, May 17, 2022), a New York state trial court dismissed on ecclesiastical abstention grounds a suit by a restaurant owner against a kosher certification agency.  The monopoly of a community-wide certification agency was broken when two rabbis formed a competing agency.  53 rabbis issued a letter urging members of the community not to patronized establishments certified by the new agency.  A restaurant making use of the new agency sued, claiming the letter cost it $156,000 per year in revenue. In dismissing the suit, the court said in part:

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....

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.

The Forward reports on the decision.

Hebrew Israelite Student Seeks $4M In Damages For Coach's Punishment That Violated His Religious Dietary Requirements

Suit was filed yesterday in an Ohio federal district court by a Hebrew-Israelite high school football team member who was told to eat a pepperoni pizza as discipline for missing a mandatory weight class. When the student objected that eating pork was a violation of his religious beliefs, he was allowed to remove the pepperoni, but still was forced to eat the pizza with pork residue on it. The complaint (full text) in K.W. (Junior) v. Canton City School District, (ND OH, filed 12/29/2021) alleges 1st and 14th Amendment, as well as other, claims saying in part:

All Defendants were fully aware of Junior’s religious beliefs; however, Defendants established practices and implemented actions that were antisemitic and/or in direct violation of Plaintiffs’sincere religious beliefs. therefore violating 42 U.S.C. § 1983.

WHEREFORE, Plaintiffs demand compensatory damages of $3,000,000.00 and punitive damages of $1,000,000.00.... [as well as] injunctive relief....

Other dollar amounts are sought for other causes of action set out in the complaint.  WKYC News reports on the lawsuit.

Kosher Restaurant Sues Certifying Agency For Defamation

New York Post reported this week on a lawsuit filed last month in a state trial court in Nassau County, New York by a kosher restaurant against the local kosher certifying agency that the restaurant used to hire. Last July, the restaurant, Chimichurri Charcoal Chicken, as well as two other establishments, switched from Vaad Hakashrus of the Five Towns and Far Rockaway to a rival, less expensive, certifying agency called Mehadrin of the Five Towns. This led the Vaad to issue a statement, alleged to be defamatory, criticizing Chimichurri's kosher food standards and urging residents not to eat there. The restaurant's lawsuit alleges:

The existing Vaad does not want competition, is afraid of the competition, and is trying to use its power to drive them — or attempt to drive them — out of business.

Chimichurri initially attempted to resolve the dispute in a rabbinical court, but the rabbis who head the Vaad did not show up for the hearing. This led the rabbinical court to grant unusual permission for Chimichurri to sue in secular court. The Vaad's lawyer told the New York Post:

Rabbis have an obligation and a right under the First Amendment to guide their communities with respect to religious issues and this does constitute a religious issue.

The Vaad has said that it has legitimate concerns about conflicts of interest.

Injunction and $1M Damages For False Use Of Kosher Certification Symbol

In Chicago Rabbinical Council v. Abdul Rehman Group, Inc., (ND IL, June 9, 2020), an Illinois federal district court awarded statutory damages of $1 million under the Lanham Trademark Act to the Chicago Rabbinical Council ("cRc") in its suit against a company that was without authority applying a cRc logo to its food products, falsely indicating that they had been approved as kosher.  The court also issued a broad injunction barring defendant from using the cRc logo in any way to mislead others into believing that its products were certified by cRc. Kosher Today reports on the decision.

Imam's Interpretation of Halal Held Relevant To Sincerity of Inmate's Beliefs

In Russell v. Pallito, (D VT, Nov. 25, 2019), a Vermont federal district court refused to exclude the testimony of Taysir Al-khatib, the main imam of the Islamic Society of Vermont, who was to be presented as an expert on Islamic dietary laws.  The issue arose in a suit by Justin Russell, a Muslim pre-trial detainee who claimed that Department of Corrections policies fail to provide him and similarly situated inmates a diet that meets their religious requirements. According to the court:

Russell contends that Al-khatib’s expert testimony regarding Islamic dietary law is irrelevant because the proper inquiry for purposes of his claim is whether his beliefs regarding Islamic dietary law are sincerely held, not whether they are correct as a matter of religious doctrine....

More specifically, according to Russell, “[t]he question of whether Muslims may properly subsist on a kosher diet is essentially a question of religious interpretation,” and “the validity of such interpretation is not a fact of any consequence in determining the action, and is therefore irrelevant.”

The court went on to hold:

The Court recognizes Russell’s concern regarding conflation of the sincerity and verity of his religious beliefs, and remains cognizant of its duty to refrain from adjudicating intra-faith disputes.....

But that fact alone does not render Al-khatib’s testimony about Islamic dietary requirements irrelevant as a matter of law.... Rather, evidence that some members of Russell’s religious community hold a contrary interpretation of Islamic dietary requirements may be valuable to a jury in assessing the sincerity or religious nature of Russell’s beliefs as well as whether Defendants’ actions substantially burdened those beliefs.

Popularity of Kosher Food Requests In Prisons

Tablet Magazine yesterday reports on the surprising popularity of kosher food requests in prisons, saying in part:

According to the 2013 numbers, Jews are seven percent of the state prison population of New York; the fourth largest religious denomination after Protestant, Catholic and Muslim (in that order). If the numbers were accurate it would mean that nearly twice as many Jews were locked up that year as members of the Nation of Islam. But the truth is that many inmates lie and claim to be Jewish once they enter the prison system. And why do they do it? Not as a hedge against the impending arrival of the Moshiach. They do it for the kosher food.

Israel's High Court Erodes Rabbinate's Monopoly On Kosher Certification

By a vote of 5-2, last week an expanded panel of Israel's High court of Justice handed down a ruling which moves toward breaking the Chief Rabbinate's monopoly on designation of which restaurants in the country are kosher.  As reported by Haaretz and Arutz Sheva, the ruling stops short of allowing alternative private kashrut certification. It upholds the Rabbinate's position that Israel's Kosher Fraud Law prohibits a business from representing itself as "kosher" without a certification approved by the Chief Rabbinate. However the decision does allow businesses "to display a true representation about the standards they follow and the way they are supervised in keeping them, which also includes an explicit clarification that they do not have a kashrut certificate."  The court added:

Assuming it is telling the truth, nothing prevents a food establishment from clarifying that the meat it serves was purchased from a slaughterhouse that carries kosher certification; and that the fish it serves are only those with fins and scales.

Jewish Woman Sues Restaurant Over Bacon In Veggie Omelet

Detroit Free Press reports that a lawsuit was filed last week in a Michigan state trial court against a Detroit area Denny's restaurant for including bacon in a vegetarian omelet.  Plaintiff Angela Montgomery is a practicing Jew who for religious reasons does not eat pork products.  Restaurant personnel had apologized to Montgomery, telling her that this was a mistake because the bacon container was next to the containers of vegetables.  A similar lawsuit was filed Aug. 22 by a Yemeni-American Muslim couple  against a Detroit area KFC that had mistakenly included bacon on their chicken sandwiches.

Novel Facts Do Not Assure Qualified Immunity In Prisoner Suit

In Parkell v. Senato, (3rd Cir.,  July 11, 2017), the U.S. 3rd Circuit court of Appeals vacated a Delaware federal district court's grant of qualified immunity to prison officials who refused an inmate's request for a kosher diet.  The court said in part:

We do not doubt that Parkell’s belief system—which he characterizes as “Jewish/Wicca”—is novel. But “officials can still be on notice that their conduct violates established law even in novel factual circumstances.”...

AP reports on the decision.

First Canadian Prosecution For Selling Mislabeled Kosher Food

The Canadian Food Inspection Agency last week announced that it has successfully prosecuted the first case brought before a provincial court involving misrepresentation of a kosher food product. Section B.01.049 of the Food and Drug Regulations prohibits selling food that does not meet the kashruth requirements applicable to it.  On June 22, Creation Foods Company plead guilty to two counts of violating the Food and Drugs Act, and was fined $25,000. Using a forged kosher certificate, the company sold cheese that did not meet requirements of kashrut to two Jewish summer overnight camps for young people.  The Forward has more details on the case.

Scotland Investigates Upsurge In Prisoner Requests For Kosher Meals

The Forward reported yesterday that in Scotland, the Inspectorate of Prisons has begun an investigation into why there has been a huge upsurge in inmates requesting kosher meals.  The increase has added $313,000 per year to the cost of operating Scottish prisons.  According to the news report:

Inmates are believed to have started asking for kosher food after watching “Orange is the New Black,” the American television show in which a character named Cindy Hayes, played by Adrienne Moore, converts to Judaism to get “better quality food,” as she explains it in the series.

At one Edinburgh prison, 111 prisoners are being served kosher meals, and it is thought that hundreds of prisoners across the United Kingdom have applied to change their religion to Judaism since the episode aired in 2015.

6th Circuit Rules On Qualified Immunity In Prisoner Case

Last month in White v. Pauly, (S.Ct., Jan. 9, 2017), the U.S. Supreme Court in a police shooting case emphasized that when officials claim qualified immunity from damages, determining whether the official violated "clearly established" law requires examination of particularized facts rather than a determination at a "high level of generality." Yesterday the U.S. 6th Circuit Court of Appeals applied that principle in a suit by a prisoner claiming he was denied his 1st Amendment right to kosher meals.  In Hermansen v. Thompson, (6th Cir., Feb. 1, 2017), the court (citing White) upheld a finding of qualified immunity, saying:

... [W]e find the instant record devoid of support, in fact or law, for the notion that it should have been obvious to defendants that their provision of kosher food products to Hermansen, prepared in a separate kitchen facility, was nonetheless violative of his First Amendment free exercise rights because the same utensils used to prepare or serve otherwise approved meat products had also been used to prepare or serve otherwise approved dairy products, at some point, without having first been kashered and certified by a rabbi.

[Thanks to Tom Rutledge for the lead.]

Israel's High Court Upholds Chief Rabbinate's Monopoly On Kosher Certification

In Israel on Monday, a 3-judge panel of the High Court of Justice in a 2-1 ruling upheld the official Chief Rabbinate's monopoly on kosher certification.  As reported by the Times of Israel, at issue was the ability of restaurants to use a alternative private kosher supervision service which issues certificates that do not use the term "kosher" in attesting to compliance with Jewish religious dietary requirements. The restaurants involved only displayed the Private Supervision certificate on their websites.  However, the High Court majority held:

a business is prohibited from presenting its kashrut status in writing, whether by using the word kosher or not, unless it was given a kosher certificate by the body authorized by law to do so.

The majority however said that the Chief Rabbinate would have to make reforms in its certification process within two years to eliminate the requirement that restaurants pay the salaries of inspectors who certify them.  The restaurants say they will seek review of the ruling by an expanded bench of the High Court.

Class Action Claims Valentine's Day Candies Misrepresented As Kosher

A class action lawsuit was filed this week in a California federal district court against See's Candy alleging that signage in the company's Los Angeles store misled plaintiff into believing that the Valentine's Day Heart Box of assorted chocolates was certified Kosher when in fact it was not.  The complaint (full text) in Weiss v. See's Candy Shops, Inc., (ND CA, filed 2/9/2016), asserts that plaintiff relied on a sign containing a kosher certified symbol which the store placed directly above the heart boxes of candy. The suit alleges breach of express warranty, unlawful business practices, violation of the Consumers Legal Remedy Act, false advertising, and fraudulent inducement. Law.com reports on the lawsuit.

Illinois Milk Law Change Was Pushed By Orthodox Jewish Group

Earlier this month (Aug. 6), Illinois Governor Bruce Rauner signed into law (effective next January) Illinois S.B. 1228 (full text) amending the state's Grade A Pasteurized Milk and Milk Products Act.  The new law requires milk in the state to be labeled in accordance with the federal Model Grade "A" Pasteurized Milk Ordinance.  The major change this makes stems from the provision in the federal model ordinance stating: "The common name of the hooved mammal producing the milk shall precede the name of the milk or milk product when the product is or is made from other than cattle's milk."  It turns out, according to a JTA report this week, that the primary proponent of this change was the Chicago Rabbinical Council, an Orthodox rabbinical and kosher certification organization.  Under Illinois' prior law, products sold as milk could have contained non-kosher milk from pigs or camels without the consumer being aware of that fact.