Posted by Eugene Volokh:
Bad Lawsuit from the Thomas More Law Center:
http://volokh.com/archives/archive_2008_12_14-2008_12_20.shtml#1229464059
The Thomas More Law Center has just [1]sued the government on these
grounds:
1. This civil rights action challenges that portion of the
�Emergency Economic Stabilization Act of 2008� ... that
appropriated $40 billion in taxpayer money to fund and financially
support the United States government�s majority ownership interest
in American International Group, Inc. (�AIG�), which engages in
Shariah-based Islamic religious activities that are anti-Christian,
anti-Jewish, and anti-American. The use of these taxpayer funds to
approve, promote, endorse, support, and fund these Shariah-based
Islamic religious activities violates the Establishment Clause of
the First Amendment to the United States Constitution.
2. This action also challenges the United States government�s broad
policy and practice of approving, endorsing, promoting, funding,
and supporting Shariah-compliant financial products and business
plans, such as Takaful Insurance. This governmental policy and
practice conveys a message of endorsement and promotion of
Shariah-based Islam and its religious beliefs and an accompanying
message of disfavor of and hostility toward Christianity and
Judaism and their religious beliefs in violation of the
Establishment Clause.
This strikes me as a very hard position to sensibly defend. Parts of
the argument are just "Islam is bad" (and not just radical jihadist
Islam, but any branch of Islam that asks Muslims to invest only in
businesses that comply with various rules about interest, alcohol, and
the like). These surely can't advance the Establishment Clause claim;
the Establishment Clause applies equally to Catholicism,
Protestantism, Islam, or whatever else.
And to the extent the arguments don't focus on the purported flaws of
Islam, they are shockingly broad. The theory is apparently that the
government may not invest in any company that, in part of its
operations, provides products that are tailored to a particular
religious faith, and that may be accompanied by donations to religious
charities. But lots of companies do this, for the simple reason that
religious consumers have their religious tastes such as consumers have
other ethical or esthetic tastes.
For instance, a food processing company might have a division that
produces kosher products and donates some money to Jewish-specific
charities (as a way of better wooing Jewish buyers). An investment
company might seek to attract conservative Christian investors by
offering a fund that doesn't invest in (say) hospital chains that
perform abortions, and by donating some share of its profits to
religious causes. Other companies might provide funds that don't
invest in munitions manufacturers, to satisfy the desires of Quaker
investors. A store might sell, among other products, religiously
significant garments or religious symbols. A bookstore might sell
religious books alongside other books.
Under the Complaint's theory, either Islam is subject to special
constitutional constraints, or -- once that [2]constitutionally
forbidden legal rule is rejected -- all of these companies would
somehow be forbidden as targets of government investments. The
government couldn't bail them out. It presumably couldn't invest
public employee retirement funds in them. It couldn't sell religious
books alongside other books in public university bookstores, or serve
kosher food alongside other food in public university cafeterias.
That's plainly wrong, under any sound theory of the Establishment
Clause, or even under the broadest theories suggested by Justice
Brennan and other Establishment Clause maximalists. The government
investment decisions don't have a "primary religious purpose," because
the obvious purpose is to prop up important companies -- and have them
continue making as much money as possible -- and not to advance Islam.
The government no more cares about advancing Shariah through the AIG
bailout than my local Ralphs supermarket cares about advancing kosher
laws by selling products that are certified kosher. The "primary
religious effect" inquiry has always been extremely vague, but none of
the precedents applying that inquiry would treat the continued
provision by AIG of products that some religious customers like as a
"primary religious effect."
The "endorsement" argument doesn't make sense here, because reasonable
observers wouldn't treat the government's decision to bail out AIG,
including its subdivision that sells financial products that Muslims
prefer for religious reasons, as an endorsement of Islam. Again, the
"endorsement" test is quite vague, but this is a pretty clear example:
Making money by satisfying some customers' religious preferences (and
lots of other customers' nonreligious preferences) isn't an
endorsement of religion. Nor does the allegation that some of the
money that is raised is donated to Muslim charities affect the
analysis. That donating money to religious charities is good business
for AIG doesn't make it impermissible for the government (which after
all wants AIG to make as much money as possible, so the government
isn't left paying the bill) to invest in AIG.
The only even theoretically plausible objection in such cases, I
think, arises if the government becomes too entangled in the religious
decisions of the company, for instance if government officials end up
supervising the programs and deciding what Shariah law truly requires,
or [3]what really is or isn't kosher. But on the facts this just
doesn't seem to be so: The operational decisions related to these
religiously themed products and programs are made by the company (or
perhaps even by the company's subcontractors), not by government
officials. There seems to be no danger that some government officer
would have to engage in quintessentially religious activities. And it
is government decisionmaking, not government stock ownership, that
triggers the Establishment Clause, which is one reason that government
employee retirement plans can invest in companies without making them
state actors governed by the Free Speech Clause, the Establishment
Clause, the Due Process Clause, and so on. (This distinguishes the
[4]PrawfsBlawg hypothetical of a government-chartered school, which
remains a government actor, engaging in religious education.)
If someone were advancing this broad a view of the Establishment
Clause in some other case -- or trying to narrow the argument by
limiting it only to certain Christian denominations, as the Complaint
is trying to narrow the argument by stressing the supposed vices of
Islam -- I would think that the Thomas More Law Center would and
should protest. It's too bad that it's backing this argument here.
References
1.
http://www.thomasmore.org/downloads/sb_thomasmore/DepartmentoftheTreasury-Complaint.pdf
2.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=456&invol=228
3. http://volokh.com/2002_07_07_volokh_archive.html#85230182
4.
http://prawfsblawg.blogs.com/prawfsblawg/2008/12/the-church-or-mosque-of-aig.html
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