Can a public university have a privately funded kosher dining hall without violating the separation of church and state?

Plain-English summary

The interim chancellor of the University of Maryland System asked the Attorney General in 1990 whether opening a kosher kitchen on the Towson State University campus would violate the Establishment Clause of the First Amendment. A group of students and members of the Jewish community wanted a facility in the campus dining hall that would prepare kosher meals; the space was already leased to the University's food-service contractor, and private donors, not the University, would pay the roughly $40,000 in renovation costs and buy the equipment.

The Attorney General concluded the Establishment Clause did not stand in the way, as long as two limits held: no public money would go toward building or running the kitchen, and the University would stay out of the religious details of keeping the food kosher. The reasoning tracked the Supreme Court's three-part Lemon test. The University's purpose was secular: attracting a diverse student body and letting a vendor meet a particular dietary demand, the same way it would accommodate other special requests. The effect neither advanced nor inhibited religion, because the University was only allowing its contractor to use leased space to serve customers who chose that food. And there was no excessive entanglement, because the private parties, not the University, would handle everything involving the religious standards of Kashruth. Allowing students to observe their faith through their own private choices was a permissible accommodation of religion, not government sponsorship of it.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion applied Establishment Clause doctrine as it stood in 1990, when the Supreme Court's Lemon v. Kurtzman test governed. That doctrine has continued to develop in the decades since, and the Court's approach to the Establishment Clause has shifted. Treat the specific test and cases described here as the law the opinion relied on at the time, not a statement of current constitutional doctrine, and check current case law before relying on this analysis.

Common questions

Could a public university allow a kosher kitchen on campus without violating the Establishment Clause?
Under this 1990 opinion, yes. The Attorney General concluded that a privately funded kosher kitchen in leased dining space at Towson State University did not violate the Establishment Clause, so long as it met certain limits.

What limits did the opinion put on the kosher kitchen?
Two mattered most. First, no public funds could be used to install or operate the kitchen, and the opinion added that the University also could not direct other students' fees to subsidize it. Second, the University could not get involved in the religious side of the operation, meaning the steps taken to ensure the food met the standards of Kashruth. Those matters were to be handled entirely by the private parties.

Why wasn't letting students have religious dietary food considered "establishing" religion?
The opinion applied the Lemon test. The University's purpose was secular (attracting diverse students and meeting a dietary demand), the effect neither advanced nor inhibited religion (the University was just letting its contractor serve willing customers), and there was no excessive entanglement between church and state (private parties handled the religious details). The Attorney General also noted that government may accommodate religious practices without violating the Establishment Clause.

Did it matter that the students wanted kosher food for religious reasons?
No. The opinion said that a student's religious motive for seeking a particular type of food did not change the University's secular purpose or imply that the University was endorsing the students' religious beliefs.

Background and statutory framework

The question sat at the boundary between two ideas the Supreme Court has long tried to keep separate: government cannot establish religion, but it can accommodate people's religious practices. The Attorney General opened by acknowledging that keeping kosher carries deep religious significance for observant Jews, quoting the Second Circuit's decision in Kahane v. Carlson and citing the statutory definition of "kosher" at §14-901(c) of the Commercial Law Article. That is why putting a kosher kitchen inside a state university raised an Establishment Clause question at all. But, the opinion noted, it is well settled that government may accommodate religious practices without offending the clause (Hobbie v. Unemployment Appeals Comm'n; Walz v. Tax Commission), and letting individuals practice their own religion is not the same as government aiding religion.

The analysis then ran through the three-part test from Lemon v. Kurtzman, 403 U.S. 602 (1971), as restated in County of Allegheny v. American Civil Liberties Union: a practice touching on religion is permissible if it has a secular purpose, neither advances nor inhibits religion in its primary effect, and does not foster excessive entanglement with religion. On purpose, the opinion found the University's interest in attracting a diverse student body and facilitating private contracts for special dietary needs wholly secular, and it stressed that a student's religious motive does not convert that purpose into endorsement (Widmar v. Vincent; McGowan v. Maryland). On effect, the University was merely allowing its contractor to use leased space to meet customer demand, and students would be pursuing their beliefs "as a result of their genuinely independent and private choices" (Witters v. Washington Dep't of Services for the Blind); the opinion cautioned it might come out differently if University resources paid to install the kitchen or subsidized the higher cost of kosher food. On entanglement, the risk would arise only if the University involved itself in the religious character of the operation, but since the private parties would resolve all Kashruth matters, there was no excessive entanglement. The conclusion followed the facts: the kitchen was permissible with no public funds for installation or operation and no University involvement in the details of running the facility.

Citations and references

Statutes and constitutional provisions:

• The First Amendment to the United States Constitution, whose Establishment Clause prohibits governmental action "respecting an establishment of religion"
• §14-901(c) of the Commercial Law Article, Maryland's statutory definition of "kosher"

Cases:

• Lemon v. Kurtzman, 403 U.S. 602 (1971), the source of the three-part Establishment Clause test, and County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 591 (1989), restating it
• Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136 (1987), and Walz v. Tax Commission, 397 U.S. 664, 673 (1970), on permissible accommodation of religion
• Marsh v. Chambers, 463 U.S. 783, 812 (1983), quoted on facilitating individuals' opportunities to practice their religion
• Widmar v. Vincent, 454 U.S. 263, 271-72 (1981), and McGowan v. Maryland, 366 U.S. 420, 445 (1961), on secular purpose despite religious motive
• Witters v. Washington Dep't of Services for the Blind, 474 U.S. 481, 488 (1986), on benefits flowing from private, independent choices
• Kahane v. Carlson, 527 F.2d 492, 495 (2d Cir. 1975), on the religious significance of the dietary laws
• Sossin Systems, Inc. v. City of Miami Beach, 262 So. 2d 28, 29-30 (Fla. App. 1972), upholding an ordinance against false representation that food is kosher

The opinion also cited the treatise Tribe, American Constitutional Law §14-11, at 1226 (2d ed. 1988), and several prior Attorney General opinions applying the Establishment Clause criteria.

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1990/Volume75_1990.pdf (this opinion appears at printed pages 120-123 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CONSTITUTIONAL LAW

First Amendment — Establishment Clause — Opening of Privately Funded Kosher Kitchen in Leased Space at Public University is Permissible

April 4, 1990

Dr. James A. (Dolph) Norton
Interim Chancellor
University of Maryland System

 You have requested our opinion on whether the opening of a kosher kitchen on the campus of the Towson State University would violate the Establishment Clause of the First Amendment to the United States Constitution.

 For the reasons stated below, we conclude that the Establishment Clause does not preclude the opening and operation of a privately funded kosher kitchen at a public university. The planned kosher kitchen at Towson State University will conform to certain limitations required by the Establishment Clause and therefore may be opened.

I

Proposal for a Kosher Kitchen at Towson State

 In the spring of 1989, a group of students and representatives from the Jewish community met with officials of Towson State University to discuss the feasibility of constructing a dining facility that would prepare and serve kosher meals. The facility would be located in Newell Dining Hall, a part of one of the University's residence buildings. The space in question is leased from the University by Service America Corporation, pursuant to a contract under which Service America provides food services to the University.

 As envisioned, the kosher kitchen would prepare kosher meals for Towson State students and their guests who desire these special meals. In accordance with the precepts of Orthodox Judaism, only kosher food would be permitted in the space. Any student, however, would be welcome to take meals at the kosher kitchen.

 The cost of renovating the space to accommodate the new facility is estimated to be about $40,000. In addition, new equipment would be needed. Both the funds and the equipment would be donated by private citizens; no public funds would be used.

II

Establishment Clause Analysis

A. Introduction

 To an orthodox Jew, observing the laws of Kashruth has "deep religious significance .... The dietary laws are an important, integral part of the covenant between the Jewish people and the God of Israel." Kahane v. Carlson, 527 F.2d 492, 495 (2d Cir. 1975). See also §14-901(c) of the Commercial Law Article (definition of "kosher"). Hence, the creation of a kosher kitchen at a public university raises questions under the Establishment Clause of the First Amendment, which prohibits governmental action "respecting an establishment of religion."

 Yet it is well-settled "that the government may ... accommodate religious practices ... without violating the Establishment Clause." Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136 (1987). See also Walz v. Tax Commission, 397 U.S. 664, 673 (1970). In our view, the proposed kosher kitchen permissibly "facilitate[s] the opportunities of individuals to practice their own religion" without crossing the line of impermissible governmental aid to religion. Marsh v. Chambers, 463 U.S. 783, 812 (1983) (Brennan, J., dissenting). See Sossin Systems, Inc. v. City of Miami Beach, 262 So. 2d 28, 29-30 (Fla. App. 1972) (upholding ordinance prohibiting false representation that food is kosher).

B. Establishment Clause Criteria

 In its most recent foray into the application of the Establishment Clause, the Supreme Court reaffirmed the constitutional test originally set out in Lemon v. Kurtzman, 403 U.S. 602 (1971). As the Supreme Court summarized: "Under the Lemon analysis, a statute or practice which touches upon religion, if it is to be permissible under the Establishment Clause, must have a secular purpose; it must neither advance nor inhibit religion in its principal or primary effect; and it must not foster an excessive entanglement with religion." County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 591 (1989).1

 1. Purpose

 In order to attract diverse groups of students to its campus, the University has an interest in facilitating private contractual arrangements to meet special dietary needs. To further this wholly secular purpose, the University will simply allow a vendor of food services to contract with any student who desires kosher food and thereby to accommodate those students who observe Jewish dietary laws. That the motive of the students in seeking this particular type of food is a religious one does not change the secular purpose or imply University endorsement of the students' religious beliefs. See Widmar v. Vincent, 454 U.S. 263, 271-72 (1981); McGowan v. Maryland, 366 U.S. 420, 445 (1961).

 2. Effect

 The effect of the University's action will be neither to advance nor inhibit religion. Rather, the University is simply allowing its contractor to use the contractor's leased space to meet customer demand for a particular type of food, just as it would try to accommodate other specialized demands. The University does not impermissibly aid religion merely by allowing its students to pursue their religious beliefs "as a result of [their] genuinely independent and private choices ...." Witters v. Washington Dep't of Services for the Blind, 474 U.S. 481, 488 (1986).

 We might reach a different conclusion if University resources were used to defray the costs of installing the kosher kitchen or to subsidize the higher costs of providing kosher food. But neither is the case.2

 3. Entanglement

 "In challenges to government action under the establishment clause, the action is unconstitutional if it creates excessive administrative entanglement between church and state." Tribe, American Constitutional Law §14-11, at 1226 (2d ed. 1988). There would be a risk of excessive entanglement of this kind if the University were involved in matters pertaining to the religious character of the kosher kitchen - that is, to the aspects of the operation intended to assure that the food served meets the standards of Kashruth. However, it is our understanding that all such matters would be resolved by the private parties involved. The University would not become involved in those details. Hence, we see no risk of the excessive entanglement prohibited by the Establishment Clause.

III

Conclusion

 In summary, it is our opinion that the Establishment Clause of the First Amendment does not forbid the opening of a kosher kitchen in leased facilities at Towson State University, with no use of public funds for the installation or operation of the kosher facility and no University involvement in the details of the facility's operation.

                                           J. Joseph Curran, Jr.
                                           Attorney General

                                           Jack Schwartz
                                           Chief Counsel
                                             Opinions & Advice

1
For examples of the application of these criteria in the opinions of this office, see, e.g., 74 Opinions of the Attorney General 71 (1989); 73 Opinions of the Attorney General 68; 69 Opinions of the Attorney General 100 (1984); 65 Opinions of the Attorney General 186 (1980); and 59 Opinions of the Attorney General 209 (1974).

2
We would have the same concern if fees paid by students who did not contract for food at the kosher kitchen were, by the University's direction, used to subsidize the operation of the kosher kitchen.