Baltimore City has lost a second, significant round in its legal fight to ban the fraudulent sale of kosher food.
The 4th U.S. Circuit Court of Appeals this week agreed with a Baltimore judge who struck down the law as unconstitutional, saying it entangles the city in religious matters.
The decision by a three-judge panel marks a shifting trend in such laws, which until two years ago generally were supported by the courts. City officials say at least 21 states have enacted laws prohibiting the mislabeling of kosher foods.
"We think the law is constitutional," said Senior City Solicitor Burton H. Levin. "We believe this consumer protection law can be enforced without advancing religion and without entangling religion and the government.
Mr. Levin said the mayor and city solicitor will review the opinion and decide whether to appeal to the Supreme Court. "It's a knotty area. We'll probably need to take some time with it."
The Supreme Court refused to review a similar law after it was struck down in New Jersey two years ago.
Maryland has a similar statewide law in place, but Mr. Levin said that after the recent rulings, he doubts it could be enforced.
George Barghout, a Palestinian and former operator of a chain of shops called Yogurt Plus, challenged the law in 1991 after he was cited for violating it. An inspector determined that he was offering kosher hot dogs that had been cooked on a rotisserie next to nonkosher meat.
The city designed the law to protect consumers from vendors who intentionally mislabel food as kosher. The law also established the Bureau of Kosher Meat and Food Control with a six-person staff of inspectors.
Mr. Barghout has since sold his chain of shops, said Imad K. Dajani, his Baltimore lawyer.
"We're very happy with the outcome," Mr. Dajani said. "It basically confirms our belief that government should stay out of the business of enforcing religious law."
The city has been prohibited from enforcing the law while the case is on appeal.
The appeals court said the city's adoption of Orthodox regulations as the standard of compliance made the city "dependent upon members of that faith to interpret and apply the standard."
"Although the city has not expressly endorsed Orthodox Judaism or encouraged its practice by passing the ordinance, the incorporation of the Orthodox standard creates an impermissible symbolic union of church and state," the court wrote.
Although city laws ban false advertising and fraud, the kosher food ordinance was regarded instead in a separate section devoted exclusively to fraud in the sale of kosher food products, the court noted.
The ruling supported the opinion a year ago of U.S. District Judge Benson E. Legg, who concluded that the law overstepped the Constitution's demand for separation of church and state.