First amendment suit against AIG bailout

Douglas Laycock laycockd at
Tue Dec 16 07:03:44 PST 2008

I have not read the complaint, but I have heard or read three descriptions of it now.  I don't often say this, but I think it's frivolous. 

The Thomas More Center seems to think the Establishment Clause means very little as applied to Christianity and more than anyone else can imagine as applied to other faiths. 

Quoting "Volokh, Eugene" <VOLOKH at>:

> I've read the Complaint, and it seems to me that, once one strips away
> the "Islam is bad" arguments -- arguments that surely don't advance the
> Establishment Clause claim -- one has the theory 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.
> Thus, if the government wanted to bail out (or just buy stock in, for
> instance for state employee pension investment purposes) a food
> processing company that produced kosher products and donated some money
> to Jewish-specific charities -- a way of better wooing Jewish customers
> -- that would be an Establishment Clause violation.  Likewise if the
> government invested money in a company that, among other things, ran
> investment funds that sought to attract conservative Christian investers
> by promising not to invest in (say) hospital chains that perform
> abortions and that donated to religious causes.
> That can't be right, either under a Lemon primary purpose / primary
> effect theory or an endorsement theory, for the obvious reasons that the
> primary purpose here is to make money (or perhaps to lose as little
> taxpayer money as possible), the primary effect of the government action
> is to help AIG compete effectively by providing Muslim customers with
> what they want, and no reasonable person would assume the government is
> endorsing Islam by including AIG and all its subdivisions in the bailout
> package.
> The only possible objection that is even theoretically plausible is that
> the government would be too entangled in the religious decisions of the
> company, for instance because government officials would end up
> supervising the programs.  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, not the government, and
> the Board of Directors consists of private-sector people, see
> l=AIG.  Or am I missing something?
> Eugene
> ________________________________
>         From: religionlaw-bounces at
> [mailto:religionlaw-bounces at] On Behalf Of Ed Brayton
>         Sent: Monday, December 15, 2008 9:15 PM
>         To: 'Law & Religion issues for Law Academics'
>         Subject: First amendment suit against AIG bailout
>         The Thomas More Law Center filed suit on behalf of a Michigan
> resident alleging that the recent bailout of AIG violates the
> establishment clause because it invests public money in the insurance
> company, one of whose subsidiaries markets Takaful insurance to Muslims.
> This is an insurance policy that operates like mutual insurance except
> that it forbids investments in companies that produce things like
> alcohol, pornography or tobacco. You can see the complaint here:
> y-Complaint.pdf
>         The complaint strikes me as little more than anti-Muslim
> boilerplate. A press release sent out declares that this investment in
> AIG amounts to "promoting and financing the destruction of America using
> American tax dollars." The complaint contains claims like these which
> seem legally irrelevant at best and downright silly at worst:
>         3. As our history reveals, this Nation was founded upon values
> that acknowledge the importance of religion, respect for the right of
> conscience, and respect for the free exercise of religion. These values,
> which are Christian values, are enshrined in the religion clauses of the
> First Amendment.
>         4. The Shariah-based Islamic religious practices and activities
> that the government-owned AIG engages in--activities that are funded and
> financially supported by American taxpayers,including Plaintiff, who is
> forced to contribute to them--are antithetical to our Nation's values,
> customs, and traditions with regard to religious liberty, religious
> tolerance, and the proscriptions of the First Amendment. These
> government-funded activities not only convey a message of disfavor of
> and hostility toward Christians, Jews, and those who do not follow or
> abide by Islamic law based on the Quran or the teachings of the Prophet
> Mohammed, but they also embody actual commercial practices which are
> pervasively sectarian and which disfavor Christians, Jews, and other
> "infidels," including Americans.
>         "It is clear, " said (TMLC executive director Richard) Thompson,
> "oil money is purchasing the sovereignty of the United States and
> whatever loyalty to America these greedy financial institutions,
> corporations, and universities have left.  It's up to the American
> people to take back their country from those who so easily betray its
> interests."
>         I would expect this lawsuit to be dismissed, but I'm curious to
> hear what the experts on the list think about it.
>         Ed Brayton

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215

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