Kenneth Lasson (University of Baltimore School of Law) has posted Sacred Cows, Holy Wars: Exploring the Limits of Law in the Regulation of Raw Milk and Kosher Meat on SSRN. Here is the abstract:
In a free society law and religion seldom coincide comfortably, tending instead to reflect the inherent tension that often resides between the two. This is nowhere more apparent than in America, where the underlying principle upon which the first freedom enunciated by the Constitution's Bill of Rights is based ‒ the separation of church and state – is conceptually at odds with the pragmatic compromises that may be reached. But our adherence to the primacy of individual rights and civil liberties ‒ that any activity must be permitted if it is not imposed upon others without their consent, and if it does not adversely affect others – does not negate the fact that “we are a religious people whose institutions presuppose a Supreme Being.” This is our way of life.
While our national psyche pays homage to the nobility of the First Amendment's mandate for a tolerant society, however, we likewise seek to promote law and order by promulgating rules and regulations ‒ some of which cause more problems than they resolve. In the United States, various courts have ruled that kosher butchers may be excluded from collective bargaining units; that a Jewish court of arbitration panel may forbid trade with disapproved butchers; that retail sellers implicitly stipulate their compliance with rabbinic authorities; that a state law may incorporate a rabbinical ruling on kosher labeling; and that kosher symbols may be subject to trade infringement laws.
That all religions have their sacred cows and holy wars neither demeans nor ennobles them. But the law does not take sides. This article examines the Constitutional difficulties presented by some of them, especially when regulatory schemes bring into play both consumer protection of the public and recognition of individual rights. In the process it provides a broad historical background (describing early civil and criminal litigation in the area), catalogues the presently competing supervisory organizations, and looks at some of the more intriguing cases that have arisen in recent years.
What emerges is a tale of religion, politics, and filthy lucre that goes far beyond your father’s first food fight: not only a fascinating picture of contemporary life and mores, but a sobering example of the limitations of the law.