The Thomas More Law Center has just 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 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 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 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