Barghout v. Bureau of Kosher Meat & Food Control
66 F.3d 1337, 1995 WL 576682 (1995)
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Rule of Law:
A municipal ordinance violates the Establishment Clause of the First Amendment if it establishes a specific religious standard (e.g., Orthodox Jewish law) for commercial products, delegates enforcement authority to a religiously composed body, or requires civil authorities to interpret religious doctrine, thereby causing excessive government entanglement with religion or having the primary effect of advancing a particular religion.
Facts:
- The Baltimore City ordinance, art. 19, §§ 49-52 (1983), made it a misdemeanor to fraudulently offer for sale any food labeled kosher that did not comply with "orthodox Hebrew religious rules and requirements and/or dietary laws."
- The ordinance mandated that persons dealing with kosher food must "adhere to and abide by the orthodox Hebrew religious rules and regulations and the dietary laws."
- The ordinance created an unpaid Bureau of Kosher Meat and Food Control, composed of six members, including three duly ordained Orthodox Rabbis and three laymen selected from lists submitted by Orthodox Jewish organizations.
- The Bureau's duties included inspecting establishments selling kosher food to ensure compliance with Orthodox Hebrew religious rules and reporting violators to law enforcement authorities.
- George Barghout owned and operated "Yogurt Plus" in Baltimore, which sold both kosher and non-kosher foods.
- On September 1, 1989, the Bureau's paid inspector, Rabbi Mayer Kurefeld, found Barghout placing kosher hot dogs on a rotisserie next to nonkosher hot dogs, which contaminated the kosher hot dogs and rendered them nonkosher.
- Despite receiving several warnings from Rabbi Kurefeld, Barghout continued this practice of co-mingling kosher and nonkosher meat over the following months.
Procedural Posture:
- George Barghout was charged with violating the Baltimore City ordinance.
- On November 15, 1990, Barghout was convicted and fined $400 plus $100 in court costs by a state court.
- Barghout sought a declaratory judgment from the United States District Court for the District of Maryland, arguing that sections 49 and 50 of the ordinance violated the First and Fourteenth Amendments.
- The district court certified two questions to the Court of Appeals of Maryland.
- The Court of Appeals of Maryland answered both certified questions in the negative, finding the ordinance did not violate the Maryland Constitution and did not require subjective belief in kosher requirements for conviction.
- After reviewing the certified answers, the federal district court held that the ordinance violated the Establishment Clause, finding excessive entanglement of civil and religious authority.
- The district court granted summary judgment in favor of Barghout, declared the ordinance unconstitutional, and enjoined its enforcement.
- The City of Baltimore appealed the district court's decision to the United States Court of Appeals for the Fourth Circuit.
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Issue:
Does a municipal ordinance prohibiting the fraudulent sale of kosher food, which defines kosher according to Orthodox Hebrew religious rules and establishes a bureau of Orthodox Rabbis to aid in its enforcement, violate the Establishment Clause of the First Amendment?
Opinions:
Majority - LAY, Senior Circuit Judge
Yes, the Baltimore municipal ordinance prohibiting the fraudulent sale of kosher food violates the Establishment Clause of the First Amendment. Applying the three-prong test from Lemon v. Kurtzman, the court found that while the ordinance had a plausible secular purpose (preventing consumer fraud), it failed the other two prongs. First, Section 49, which created the Bureau of Kosher Meat and Food Control and vested significant investigative, interpretive, and enforcement power in Orthodox Rabbis, fostered excessive entanglement of religious and secular authority. This delegation of governmental functions to individuals based on their membership in a specific religious sect is unconstitutional, as established by Larkin v. Grendel’s Den, Inc. and Board of Education v. Grumet. Even if the Bureau were removed, Section 50's adoption of the Orthodox rules as the standard would still require intimate involvement of Orthodox leaders for interpretation and application, unconstitutionally entangling civil authorities with religious matters. Second, the ordinance had the primary effect of advancing or endorsing religion. The separate, comprehensive treatment of kosher food fraud, with its own enforcement mechanism based on Orthodox standards, created an impermissible symbolic union of church and state, thereby endorsing Orthodox Judaism. The court affirmed the district court's judgment that the ordinance was unconstitutional and enjoined its enforcement.
Concurring - LUTTIG, Circuit Judge
Yes, the Baltimore City ordinance is unconstitutional because it facially favors one sect of a faith over other sects, which is a violation of the most fundamental tenet of the Establishment Clause. Judge Luttig argued that the court should first consider whether the ordinance creates a denominational preference under Larson v. Valente before applying the Lemon test. He found that by explicitly defining "kosher" according to "orthodox Hebrew religious rules and regulations" and requiring adherence to them, the City expressed an impermissible intra-faith denominational preference for Orthodox Judaism. This preference exists because the various branches of Judaism define kosher differently, and the ordinance singles out Orthodox standards for special protection while offering no similar protection for other Jewish dietary requirements. Although the government's interest in preventing consumer fraud is compelling, the ordinance is not narrowly tailored to achieve this purpose, as fraud could be prevented by requiring vendors to disclose the basis for their kosher claims without favoring a specific religious interpretation. Therefore, the ordinance fails under the denominational preference analysis.
Concurring - WILKINS, Circuit Judge
Yes, the Baltimore ordinances are unconstitutional. Judge Wilkins agreed with both the reasoning of Judge Lay and Judge Luttig. He noted that while Hernandez v. Commissioner of Internal Revenue suggests applying the Larson v. Valente denominational preference analysis first, the Supreme Court has not always followed this. However, he concluded that the ordinances fail under both frameworks. Under the Lemon test, the ordinances fail the second prong because their principal effect is to establish religion by creating a symbolic union between church and state, and they fail the third prong due to excessive entanglement. Specifically, Section 50 requires civil interpretation of religious law to determine violations, and Section 49 creates excessive administrative entanglement. Judge Wilkins also agreed with Judge Luttig that the ordinances create a facial denominational preference for Orthodox Judaism that is not narrowly tailored to the state's interest in preventing consumer fraud, thus failing the Larson test.
Analysis:
This case significantly clarifies the boundaries of the Establishment Clause regarding governmental regulation of religious practices, even when framed as consumer protection. It reinforces the principle that governmental bodies cannot delegate discretionary authority to religious organizations or adopt specific religious doctrines as legal standards without risking excessive entanglement. The decision also highlights the importance of governmental neutrality in religious matters, cautioning against laws that appear to endorse or favor one religious sect. Future cases involving government interaction with religious standards will likely look to this ruling for guidance on avoiding constitutional violations by suggesting less restrictive alternatives, such as disclosure requirements rather than direct enforcement of religious law.
