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May 5, 1975

Richard HUSS, Defendant. UNITED STATES of America v. Jeffrey H. SMILOW, Defendant

Griesa, District Judge.

The opinion of the court was delivered by: GRIESA

GRIESA, District Judge.

This proceeding arises out of the conviction of the defendants for criminal contempt and the sentence of each of them to imprisonment for one year pursuant to such conviction.

 Defendants apply for an order directing the Bureau of Prisons to make available during the period of their incarceration, Kosher food meeting the requirements of Orthodox Jewish dietary laws. Defendants rely upon the First and Eighth Amendments to the Constitution, guaranteeing the free exercise of religion and prohibiting cruel and unusual punishments.

 For the reasons hereafter set forth, I have concluded that defendants have no constitutional right to be provided with Kosher food during their imprisonment. The application is denied.


 The proceedings leading up to the convictions for criminal contempt are described in two opinions of the Court of Appeals, -- Smilow v. United States, 465 F.2d 802 (2d Cir. 1972); and United States v. Huss, 482 F.2d 38 (2d Cir. 1973). Further details are contained in my unpublished opinion dated May 6, 1974 in United States v. Huss and Smilow (73 Cr.Misc. 25 and 24).

 Basically, the genesis of the matter was the bombing on January 26, 1972 of the New York City offices of Columbia Artists Management, Inc., and the offices of impresario Sol Hurok. One person was killed at the Hurok office as a result of what Chief Judge Kaufman of this circuit has properly described as "senseless and cowardly acts of violence". 482 F.2d at 39.

 In order to prosecute at least some of the perpetrators of these deeds, the government found it necessary to grant immunity to Huss and Smilow to obtain their testimony in a criminal action brought against Stuart Cohen, Sheldon Davis and Jerome Zellerkraut. However, Huss and Smilow refused to testify on religious and other grounds. Their contentions were definitively rejected by the Court of Appeals in the two opinions referred to above. In spite of these rulings by the Court of Appeals, Huss and Smilow continued their refusal to testify in the criminal action. As a result, the government's efforts to prosecute the case were effectively nullified. The criminal contempt proceedings against Huss and Smilow resulted.

 Huss and Smilow were found guilty of criminal contempt by a jury on July 16, 1974. On July 31, 1974 they were each sentenced to imprisonment for one year. The convictions were affirmed without opinion by the Court of Appeals on November 27, 1974. Defendants commenced serving their sentences on April 4, 1975.

 Defendants are presently incarcerated at the West Street Detention Center in New York City. They have been designated to serve the balance of their sentence, following the present proceedings, at the Federal Youth Center, Ashland, Kentucky.


 The question with respect to defendant Huss's asserted constitutional right to Kosher food can be dealt with quickly. By his own testimony, he is simply not an observer of the Kosher dietary requirements.

 The situation is different as to defendant Smilow, who has testified that he is an Orthodox Jew and is indeed an observer of the Kosher rules. Under these circumstances, the question of Smilow's right to be provided with Kosher food must be examined in some detail.


 A learned Orthodox Jewish Rabbi, Joseph H. Ralbag, testified in this matter, and was of great assistance to the court. The following findings regarding the Kosher rules and other questions of Jewish law are based largely on Rabbi Ralbag's testimony.

 The Kosher rules have their origin in certain passages of the Bible. Leviticus 11 and Deuteronomy 14 provide that certain "clean" meats, such as lamb and beef, may be eaten. But there is a list of certain animals, fowl and water life which are "unclean" and cannot be eaten. Of the unclean meat, the most familiar in the present day is anything derived from the hog.

 The Bible is also the source of certain other requirements, including provisions about salting and removal of blood (Deut. 12, 16 and 23-25); the removal of a certain nerve or sinew, based upon the incident of Jacob and the angel (Gen. 32:32); and the prohibition upon cooking or eating meat with milk. The latter provision stems from a Biblical passage which forbids seething a kid in the mother's milk (Ex. 23:19 and 34:26; Deut. 14:21).

 There are certain requirements that Kosher meats be free of blemishes. For this and other reasons there is a need to have Rabbinical supervision and inspection of the process of preparation of Kosher meat.

 It appears that there is no prohibition against eating the common fruits and vegetables. However, one of the Kosher requirements forbids the cooking of anything -- including fruits and vegetables -- in vessels which have been used for the cooking of unclean food. Thus a pot or a pan which had been used in cooking with pork or lard could not be used for cooking fruits or vegetables unless properly purified.

 The same requirement would be applicable to the vessels used for cooking "clean" meats such as beef or lamb.

 There is no prohibition against the use of cow's milk or butter. However, cheese apparently is required to be prepared under Kosher rules to avoid the use of improper additives.

 Further elaboration of the dietary rules is contained in the Talmud, which was completed in about the sixth century A.D., and in a later codification known as the Code of Jewish Law.

 The dietary laws are, of course, only a part of the great body of Jewish law concerning religious and moral subjects. In addition, as originally set forth in the Bible, there was a substantial body of civil and criminal laws.

 Obviously, some of these rules and laws are of greater importance than others. An indication of this is provided by the range of penalties specified in the Biblical codes of law. The death penalty was provided for murder and other serious offenses. It is interesting to note that the Deuteronomic Code deals with an offense such as the one committed in the present case by Huss and Smilow -- i.e., failure to obey the order of a duly constituted court. This offense was deemed serious enough for imposition of the death penalty (Deut. 17:9-12).

 On the other hand, there appears to be no specific penalty provided for violation of the dietary laws. *fn1"

 This venerable system of Jewish laws, with its scale of penalties, *fn2" is of significance in helping us place the dietary rules in some perspective. Clearly, the need to enforce the essential criminal laws was of prime importance to the Hebrew lawgivers, just as it is in today's society.


 Rabbi Ralbag testified as to the underlying meaning and purpose of the Jewish dietary rules. He testified that the Jewish religion recognizes two basic types of responsibilities imposed on the individual -- responsibilities to God and responsibilities to fellowmen. Included in the responsibilities to fellowmen is the duty to observe the law of the land.

 An important element of carrying out these responsibilities is the discipline of the individual. It is here, according to Rabbi Ralbag, that the dietary laws have significance. The purpose of these laws is to impose a discipline on the individual character. Kosher observance leads to the fashioning of the character of a man.

 There is no formal penalty for nonobservance of the dietary laws. According to Jewish belief, compliance with these rules, as well as other phases of the Jewish religious law, affects the moral and spiritual character of the ...

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