Imagine for a moment the idea of a food merchant taking some sausage casings and filling them with pork and placing them in a supermarket in a package marked “kosher.” You don’t have to be Jewish to comprehend that the act would be not only cruel but fraudulent. It’s impossible to imagine that preventing the State of New York from acting against this kind of fraud was what the men who founded America had in mind when they insisted that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. Yet that seems to be the thinking of a panel of judges who ride the Second United States Appeals Circuit. They have just handed down a decision that ratifies a lower courts’ invalidation of the New York Agriculture and Markets Law, known as the kosher foods law, on the grounds that it violates the establishment clause.

The New York case doesn’t involve anything like the imaginary question of trying to pass off pork as kosher. It does raises a subtler issue about the vagueness of the language of the law, which holds that kosher involves meeting orthodox Hebrew religious requirements. A lesser standard, of course, would make the whole thing pointless. An illuminating brief was filed in the case by a group of Orthodox Jewish authorities who have sided with the rabbi who is the director of the Kosher Law Enforcement Division of the New York State Department of Agriculture and Markets. They argue that the constitutional issue is whether the Empire State may protect their community by forbidding vendors who sell food labeled “kosher” from intentionally defrauding their customers.

One of the things the Orthodox groups point out is that no one is subject to the statute in New York except those who “voluntarily choose to sell food products as ‘kosher’ or under some variation of the term ‘kosher.'” Any commercial establishment that wants to conduct its operations free of New York’s kosher fraud statutes, it points out, may do so simply by not advertising or labeling its products as kosher. New York has been enforcing its kosher foods law for nearly a century. A challenge for vagueness went to the Supreme Court in 1927 and was rebuffed. For years the idea has been that a standard has to have a common denominator that all factions recognize. Orthodox standards serve for all, but not the other way around. Now the appeals court is worried about an excessive entanglement with religious law. But the religious community seeks simple consumer protection. It looks like the high court will have the chance to further clarify this again, unless the full Second Circuit comes to its sense and takes this matter in hand.