concurring in the judgment:
I agree with Judge Lay that the Baltimore City ordinance at issue in this case is unconstitutional. However, I believe the ordinance is invalid because it facially favors one sect of a faith over other sects of that faith, in violation of the most fundamental tenet of the Establishment Clause that the imprimatur of the state shall not directly or indirectly be placed upon one religious faith over another or upon one denomination of a faith over another. See Larson v. Valente, 456 U.S. 228, 246, 102 S.Ct. 1673, 1684, 72 L.Ed.2d 33 (1982); see also Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 605, 109 S.Ct. 3086, 3107, 106 L.Ed.2d 472 (1989) (“Whatever else the Establishment Clause may mean ... it certainly means at the very least that government may not demonstrate a preference for one particular sect or creed_”); Wallace v. Jaffree, 472 U.S. 38, 113, 105 S.Ct. 2479, 2519, 86 L.Ed.2d 29 (1985) (Rehnquist, J., dissenting) (“The [Establishment] Clause was ... designed to stop the ... Government from asserting a preference for one religious denomination or sect over others.”). Because we are required to first consider, and resolve, the issue of *1347whether the ordinance facially differentiates among religions, see Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680, 695, 109 S.Ct. 2136, 2146-47, 104 L.Ed.2d 766 (1989), and because I conclude that the ordinance does run afoul of the basic proscription against denominational preferences, I need not proceed to the Lemon analysis undertaken by Judge Lay.1 “[T]he Lemon v. Kurtz-man ‘tests’ are intended to apply to laws affording a uniform benefit to all religions, and not to provisions ... that discriminate among religions.” Larson, at 252, 102 S.Ct. at 1687 (emphasis in original, citations omitted). Accordingly, I concur only in the judgment of the court.
Judge Lay implicitly assumes that “the term ‘kosher’ is universally understood to refer to the Orthodox standard” of Jewish dietary regulations. See ante at 1341 n.9 (citing Brief of Amicus Curiae National Jewish Commission on Law and Public Affairs [at 10] (“COLPA”)).2 On this assumption, he subjects the Baltimore kosher fraud ordinance to the test of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), and holds the ordinance unconstitutional because it “fosters excessive entanglement of religious and secular authority,” ante at 1342, and because “the primary effect of the ordinance is the advancement and endorsement of the Jewish faith, and in particular the Orthodox Jewish faith.” Ante at 1346.
The various branches of Judaism define kosher differently, however, and, as one would expect, these differences are significant to adherents of the various sects of the faith. As the district court found, “Conservative and Orthodox Jews generally agree on the standards of kashrut, [but] they differ in their interpretations of specific provisions.” Barghout v. Mayor and City Council of Baltimore, 833 F.Supp. 540, 544 (D.Md.1993) (citing 6 Encyclopaedia Judaica 27-45). The district court noted, for example, that “some Jews consider swordfish to be kosher while others disagree,” and that “[n]umerous other examples of kosher interpretive disagreement also exist.” Id. at 544. See also Ran-Dav’s County Kosher, Inc. v. State, 129 N.J. 141, 608 A.2d 1353, 1356 (1992), cert. denied, — U.S. -, 113 S.Ct. 1366, 122 L.Ed.2d 744 (1993) (“[T]here is considerable disagreement over what precepts or tenets truly represent the laws of kashrut ... both within Orthodox Judaism and between Orthodox Judaism and other branches of Judaism.”).3 Indeed, appellants conceded at oral *1348argument that “kosher means different things to different people.” Oral Argument, Dec. 8, 1994. Given the differences between the understandings of what is and is not kosher within Judaism, the City, by defining kosher according to “the orthodox Hebrew religious rules and regulations and the dietary laws,” Baltimore, Md., City Code, Art. 19, § 50 (1983 Repl.Vol.) (emphasis added), has unquestionably expressed an impermissible intrafaith denominational preference for Orthodox Judaism.
Even if, as Judge Lay assumes, the term “kosher” were understood by all persons of the Jewish faith as meaning in accord with the dietary laws of Orthodox Judaism, the Baltimore ordinance still represents a denominational preference, because it singles out Orthodoxy for special protection, see, e.g., Barghout, 833 F.Supp. at 546 (“the statutes provide a substantial religious benefit to those who adhere to ‘orthodox Hebrew religious rules and dietary laws’ ”), while at the same time protecting not at all adherents of the Conservative or Reformed sects against fraud in the labeling of food products that meet their dietary requirements. As the district court recognized, “Conservative or Reform Jews might well object to the status conferred on Orthodox Jews, for the ordinance identifies ... orthodox Judaism as the recipient of civil authority for interpreting and applying the kosher standard.” Id. at 549 (emphasis added).4
In Larson v. Valente, the Supreme Court summarily held that a Minnesota statutory provision exempting from the reporting requirements of the state’s charitable solicitations Act only those religious organizations that receive more than fifty percent of their contributions from members “clearly grants denominational preferences,” 456 U.S. at 246, 102 S.Ct. at 1684, because the provision “makes explicit and deliberate distinctions between different religious organizations.” Id. at 247 n. 23,102 S.Ct. at 1685 n. 23. The statute at issue in Larson did not even mention a particular religion by name; nonetheless, the Court determined that the statute created a denominational preference because “the provision effectively distinguished] between well-established churches that have achieved strong but not total financial support from their members, on the one hand, and churches which are new and lacking in a constituency, or which, as a matter of policy, may favor public solicitation over general reliance on financial support from members, on the other hand.” Id. at 247 n. 23, 102 S.Ct. .at 1685 n. 23 (citing Valente v. Larson, 637 F.2d 562, 566 (8th Cir.1981)) (internal quotation marks omitted).
In the instant case, the denominational preference is even clearer. As Judge Lay recognizes, ante at 1338, the Baltimore City ordinance makes it a misdemeanor to sell, with intent to defraud, food products “falsely represented] to be Kosher, ... or as having been prepared under, and/or ... sanctioned by the orthodox Hebrew religious rules and requirements or under the dietary laws.” Art. 19, § 50 (emphasis added). The ordinance further specifies that: *1349Id. (emphasis added). The ordinance, in sum, explicitly defines fraud by reference to the religious rules of a specific religious denomination.
*1348In order to comply with the provisions of this section[,] persons dealing with either kosher meat, meat preparations, food and/or food products only, or persons dealing with both kosher and non-kosher meat, meat preparations, food and/or food products must adhere to and abide by the orthodox Hebrew religious rules and regulations and the dietary laws; otherwise he shall be in violation of this section.
*1349A law that facially evidences such a denominational preference “must be invalidated unless it is justified by a compelling governmental interest ... and unless it is closely fitted to further that interest.” Larson, at 247, 102 S.Ct. at 1685 (citing Widmar v. Vincent, 454 U.S. 263, 269-70, 102 S.Ct. 269, 274-75, 70 L.Ed.2d 440 (1981), and Murdock v. Pennsylvania, 319 U.S. 105, 116-17, 63 S.Ct. 870, 876-77, 87 L.Ed. 1292 (1943)). I assume that Baltimore’s interest in protecting consumers from fraudulent labeling practices is compelling; I must conclude, however, that the ordinance passed assertedly to further that interest is not “closely fitted” to that end. See, e.g., Larson, 456 U.S. at 248, 102 S.Ct. at 1685 (assuming that state’s “interest in protecting its citizens from abusive practices in the solicitation of funds for charity” was compelling, but finding that statutory provision at issue was not “closely fitted” to further that purpose). The ordinance does not simply prevent fraud in the religious labeling of foods — which could be accomplished through a provision that prohibits vendors from falsely claiming that then-products have been certified by the respective religious authorities as conforming to their sect’s dietary regulations — but rather singles out for protection the dietary rules of Orthodox Judaism, to the exclusion of other sects of the Jewish faith.
Because I conclude that the Baltimore City ordinance facially constitutes a denominational preference, and is not sufficiently tailored to meet the state’s interest in protecting against consumer fraud, I would affirm the district court’s invalidation of the ordinance without resort to the Lemon analysis undertaken by Judge Lay, about which I have reservations. In my view, for example, it may well be that the City could protect adherents of Judaism from commercial fraud in the marketing of kosher products, without impermissibly advancing religion, merely by eliminating the denominational preference that appears in the ordinance in question. It is precisely because of such a possibility that the Supreme Court has insisted that a facial denominational preference be addressed pri- or to invocation of Lemon.
. Judge Lay indulges this assumption based, in part, upon an amicus curiae brief filed in the Ran-Dav case, in which the Anti-Defamation League of B’nai B’rith stated;
Even though some branches of Judaism sanction the consumption of nonkosher food, all accept the same code of Jewish law as the source of kosher dietary requirements.
Ante at 1341 n.9 (citing Amicus Brief for COLPA at 9 (quoting Amicus Brief for Anti-Defamation League of B'nai B’rith at 8, Ran-Dav’s County Kosher, Inc. v. New Jersey, 129 N.J. 141, 608 A.2d 1353 (1992) (No. 32-525))). Of course, there can be universal agreement as to the source of kosher dietary requirements, and still be disagreement as to the interpretation of those requirements. As I explain below, it is in adopting the interpretation of one sect that the City of Baltimore has created a denominational preference.
. See also Plaintiff's Response to Defendant's Motion to Dismiss at 5, Barghout, 833 F.Supp. 540 ("certain fish (swordfish), birds, hard cheeses, and wines are accepted by the Conservative *1348Hebrew movement, and a few Orthodox scholars, but rejected by the majority of observant Orthodox Jews”); Brief of Amicus Curiae ACLU of Maryland at 12-13, Barghout, 833 F.Supp. 540 (noting that a biblical passage forbidding consumption of the "sinew of the thigh vein” is interpreted differently by the Sephardim and Askenazim branches of the Orthodox sect, with one prohibiting consumption of hind quarters altogether, and the other permitting consumption if the hind quarters are "deveined properly."); 6 Encyclopaedia Judaica 27-45 (MacMillan Publishing Co.1971) (noting dispute over whether, inter alia, giraffe, turkey, guinea fowl, and pheasant are kosher).
. Judge Lay apparently recognizes as much, see ante at 1341 n.9 (citing Amicus Brief for the New Jersey Association of Reform Rabbis et al., Introductory Statement, Ran-Dav’s County Kosher, Inc. v. New Jersey, 129 N.J. 141, 608 A.2d 1353 (1992) (No. 32-525)), but does not appear to regard this disparate protection as constituting a denominational preference.