Here We Go

By: Editorial Board
Jewish Press
July 5, 2006

When PETA first set its sights several years ago on AgriProcessors – the largest kosher slaughter operator in the U.S. – charging inhumane slaughtering practices, The Jewish Press cautioned that shechitah itself was the real target. And when the Forward more recently condemned the employment practices of AgriProcessors with, in our view, hatchet job reporting and Orthodox-bashing editorializing, we said it seemed to us like more of the same.

Last week, The Jewish Week carried a story on its front page about how AgriProcessors and other major kosher slaughterhouses have come under federal government scrutiny for possible illegal price-fixing and market allocations.

While we do not suggest that anyone should be immune from the reach of the law, we do believe that the new federal interest in kosher slaughter is being driven by PETA, which believes that all slaughter of animals should be ended, and elements of the Jewish media that believe that kosher slaughter is an anachronism. Moreover, there are times when, in our system of laws, religious freedom trumps pursuit of what would be unacceptable in a non-religious context.

The Jewish Week article quoted “a law enforcement official who specializes in anti-trust cases” as saying, “Price fixing, bid rigging and market allocation are the kinds of practices that are traditionally pursued criminally.... It sounds like they are investigating collusion within the industry.”

The article went on to say:

The Justice Department’s Antitrust Division Web site defines price fixing as “an agreement among competitors to raise, fix, or otherwise maintain the price at which their goods are sold.” Market allocation, another practice that may be relevant to this grand jury probe, consists of “agreements in which competitors divide markets among themselves. In such schemes, competing firms allocate specific customers or types of customers, products or territories among themselves.”

But The Jewish Week went on, and here is our problem:

One industry insider, who would speak only on condition of anonymity, said the unique certification process involved in producing kosher meats made the industry particularly vulnerable to potentially illegal market allocation. “Theirs is an unwritten agreement not to traipse on each other’s hekshers,” he explained, referring to the rabbinic kosher certifiers who give their stamp of approval to the ritual processes by which meat must be slaughtered under religious law.

The power of custom and sectarian loyalty to particular kosher certifiers among various Jewish religious groups means “if you have a certain heksher, you have a lock on a certain part of the market geographically and religiously,” this insider said. Lubavitch and Satmar chasidim, for example, have separate certifiers to which they are each exclusively loyal. The meat companies, understanding this, effectively divide up the market by agreeing not to use each other’s certifiers, the source explained.

Are we at the point that the owners of a kosher meat company may not permitted to appeal exclusively to one community’s distinct religious preferences either as a matter of their own religious affinity or a purely business-driven judgment? To be sure, it is generally hard to argue that government should not try to ascertain whether a problem exists, especially when the facts in some contexts ordinarily might suggest wrongdoing. But in this case, it seems that fundamental, protected religious rights are in play.

In sum, if the First Amendment means anything, it is that the federal government has no business getting into the matter of whether fealty to a particular “heksher” creates a legal problem. Not only is the practice at base plainly constitutionally protected, but even asking questions about it is an unwarranted intrusion.