The American Jewish World reports:
…Hart Robinovitch, lead attorney for the 11 plaintiffs in the lawsuit, told the AJW this week that the district court’s ruling likely will be appealed to the 8th Circuit Court of Appeals.
Robinovitch said that he “did not read anything in Judge Frank’s decision that was contrary to our theory that if the meat at these plants is being granted kosher status or not, or determined to be kosher or not depending on whether or not [kosher slaughterers and supervisors] complied with quotas, instead of religious rules,” that would be a neutral question that “a court could evaluate… without violating the Establishment Clause.”
He added that the lawsuit presented two affidavits — and that there are “other witnesses, as well” — that provide evidence of the fact that the beef for Hebrew National products was granted kosher status based on a “predetermined quota,” rather than rules governing kosher slaughter.
“We always anticipated that this case was going up on an immediate appeal,” said Robinovitch.…
In general, I have a very low opinion of many attorneys, usually because the attorneys I write about – like Nathan Lewin and Allan Dershowitz, for example – play fast and loose with the truth in ways that are truly deplorable.
Robinovitch doesn't appear to have that problem. But he certainly has another problem with regard to the specific case – he does not understand Jewish law or kashrut.
Put simply, if the rabbi in charge looks at a herd of cattle and tells the bodkim and schochtim that they should be able to get x% kosher from the herd, Jewish law has not been violated.
Because aside from occasional mis-cuts, what makes cattle non-kosher is, primarily, the state of the animal's lungs. Completely smooth lungs free of all adhesions (Beit Yosef shechita) are the least common. Glatt, which means smooth and without adhesions in Yiddish, is not actually that way. Instead, most animals have some adhesions, but if the number of adhesions is low enough and the adhesions are small enough, then through careful inspection and testing the animals are ruled glatt. So the glatt meat you buy, no matter who the provider is, comes from a mixture of a few Beit-Yosef-level animals and many glatt-level animals.
But what about non-glatt or "regular" kosher meat? What is that?
Put simply, the animal has larger adhesions or more adhesions than those ruled glatt. But through careful removal of the adhesions and checking for holes in the lungs after that, the animal can be ruled kosher. This was the normal standard throughout Europe for centuries.
It takes more work and more time to work on these lungs and rule one of these animals with several adhesions kosher.
Knowing the grade of cattle purchased, the breed and the grower or dealer can tell an experienced kosher slaughterhouse operator approximately what percentage of the animals will be ruled kosher or better once they are slaughtered.
So if AER really told shochtim and bodkim to make sure to rule a certain percentage kosher, what AER is really saying is work harder on the lungs and rule leniently whenever possible – which was basically the standard in much of Europe 100 years ago.
The shochtim and bodkim working in Hebrew National plants for AER Services, Inc. mostly personally keep Beit Yosef or glatt, and for some of them, ruling an animal with several significant adhesions kosher is a very difficult thing to do – which is one of the reasons companies like AER push shochtim and bodkim to do it. The kosher standard is not determined by the shochtim and bodkim – it is determined by the rabbi whose name and kosher symbol appears on the meat. And as long as that rabbi has precedents in Jewish law to rely on, they have no right to complain.
This said, I would find it very problematic if AER was ordering shochtim and bodkim to meet quotas. People who have to meet quotas are tempted to cheat to do it. And that temptation can lead to real problems.
What Robinovitch does not understand is that glatt kosher meat is not more kosher than regular kosher meat – it is differently kosher.
As Rabbi Dr. Zivotofsky wrote in the OU's Jewish Action Magazine in 1999:
Misconception: "Glatt Kosher" means something like "extra kosher" and applies to chicken and fish as well as meat.
Fact: Glatt is Yiddish for smooth, and in the context of kashrut it means that the lungs of the animal were smooth, without any adhesions that could potentially prohibit the animal as a treifa, an issue only applicable to animals, not fowl or non-meat products.
Background: In colloquial discourse treif refers to anything that is not kosher. The technical definition of treifa is based on Exodus 22:30 ("Do not eat meat from an animal torn [treifa] in the field") and refers to an animal with any of a specific group of physical defects that are detailed in the Talmud (most of the third chapter of Chullin; 42a-59a) and codes (Rambam, Maachalot Asurot 4:6-9 and Shechitah ch. 5-11; Shulchan Aruch, YD 29-60). Examples of these "defects," which often go far beyond the health inspection of the USDA, include certain lesions, lacerations, broken limbs, missing or punctured organs, or the result of an attack by a larger animal. Such defects can occur in and thereby render both animals and fowl treif. Because most of these defects are uncommon, it may be assumed that most animals are healthy (Shach, YD 39:1) and hence there is no requirement to inspect every animal for them. An exception is the lung of an animal, on which adhesions [sirchot] and other problems may develop. While these problems are not common, they do occur more frequently than other treifot. Their relative prevalence led the rabbis to mandate that the lungs of every animal be examined, both manually while still in its natural position in the animal, and visually following its removal from the thoracic cavity (YD 39:1). Because a hole in the lung renders the animal a treifa, adhesions, i.e. pathologically arising bands of collagen fibers, are problematic either because they indicate the presence of a perforation that has been insufficiently sealed (Rashi) or because they can become loosened, thereby causing a hole to develop (Tosfot). In the U.S., lung adhesions usually do not occur on fowl; hence the rest of this discussion concerns only meat, not chicken.
The Shulchan Aruch describes many types of adhesions in intricate detail (YD 39:4-13), the overwhelming majority of which render the animal a treifa. The Ramah (YD 39:13) concludes the discussion about lung adhesions with a description of a method of peeling and testing many types of adhesions, thereby resulting in many more animals determined to be kosher. The Ramah himself expressed certain hesitations about aspects of this leniency, but because it had gained wide acceptance and did have a firm basis, he ruled that it could be followed. However, he cautions that the peeling and testing must be performed by an exceedingly God-fearing individual.
Because this peeling is mentioned and approved by the Ramah but not by the Mechaber (Rabbi Yosef Karo, the author of the Shulchan Aruch), Sephardim, who follow the Mechaber, are required to eat only glatt (chalak, in Hebrew) meat as defined by the Mechaber. The Mechaber is also the author of the Beit Yosef; therefore, such meat is termed "glatt/chalak Beit Yosef." For Ashkenazim, there is a tradition that a small, easily removable adhesion is defined as a lower class of adhesion, known as rir, and that the presence of up to two such small, easily removable adhesions still qualifies the animal as glatt according to Ashkenazic tradition. Eating glatt is a worthy stringency that avoids potential problems raised by the Ramah’s controversial leniency.
It should be emphasized that the Ramah’s ruling is certainly legitimate and, in theory, non-glatt meat, if inspected properly, is 100% kosher for Ashkenazim.…
Misconceptions about the meaning of glatt are so widespread that, for many, the term glatt has colloquially taken on the implication of a higher standard, similar to the term mehadrin. In addition, some caterers or stores may have only one kashrut sticker that they use on all products, and hence the sticker on the corned beef sandwich and on the omelette will both say "glatt kosher." Although it is technically inaccurate to label chicken, fish, lamb, or dairy products as glatt, it is not uncommon to find such labeling. In the majority of cases, it is probably not being done to mislead; but in some instances it may be intended to imply that the product was processed under a superior hashgachah, as per the term's informal usage.
"100% kosher." Not somewhat kosher or a lesser degree of kosher or barely kosher. It is "100% kosher."
But Hart Robinovitch is the attorney who did not understand the halakhic concept of rov, majority, and used an example of rov being correctly applied by Triangle K's Rabbi Aryeh Ralbag as 'proof' that Hebrew National wasn't 100% kosher.
In what passes for Robinovitch's mind, he apparently believes that applying rov made the meat less kosher than meat produced without the need to use rov. But the Shulkan Arukh and Talmudic classic commentators like Rashi specifically state that meat ruled kosher through rov is not only 100% kosher – it's super kosher. They rule that if a person says, "I won't eat that meat because rov was used to rule it kosher," he's violating Jewish law. Almost all commentators rule that all the meat must be eaten in order to show that the rabbinic ruling of rov is being respected.
Yet in the mind of Hart Robinovitch, using rov meant the meat was less kosher, if it was kosher at all. And that meant that Hebrew National was deceiving consumers.
The government has no business ruling on what is or is not kosher or what meets or does not meat certain kosher standards. And that is why the trial judge dismissed Robinovitch's case.
But consumers do have a remedy – they can stop buying Hebrew National products if they are not satisfied with the kosher supervision provided by Triangle-K.
This remedy won't make Robinovitch or his lead plaintiffs (and, most likely, the handful of former AER employees who provided Robinovitch with his 'case') any money. And therefore Robinovitch will probably appeal just as he claims– and lose again, for exactly the same reasons as he lost this time.