First amendment suit against AIG bailout

Volokh, Eugene VOLOKH at law.ucla.edu
Tue Dec 16 11:53:00 PST 2008


	Alan's point is a good one, but I think it might be helpful to
set aside the government as operator of the military -- the rules there
are different, as is demonstrated by the cases authorizing the
employment of military chaplains (and thus the inevitable religious
classifications and religious decisions that this would involve).

	Eugene

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu 
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Alan 
> Leigh Armstrong
> Sent: Tuesday, December 16, 2008 11:51 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: First amendment suit against AIG bailout
> 
> The government does sell religious stuff. The communion kits 
> and other items that chaplains use has Federal Stock Numbers 
> and is bought for them using funds allocated by congress and 
> paid from those monies to GSA.
> 
> Alan Armstrong
> Huntington Beach
> 
> On Dec 16, 2008, at 9:29 AM, Volokh, Eugene wrote:
> 
> > 	I would think that the government can certainly promote 
> and sell 
> > Shariah compliant products, even if it participated directly in the 
> > operation of the program, just as it can serve kosher, halal, or 
> > no-meat-onions-or-garlic-Buddhism-compliant food in government 
> > cafeterias (if it wishes to), or sell religious garments in 
> > government-owned clothing stores (should it be foolish 
> enough to try 
> > to run such a store), or for that matter sell Bibles 
> alongside other 
> > books in public university bookstores.
> >
> > 	The one difficulty might be if the government were to 
> decide what 
> > counts as Shariah-compliant, or kosher; that might raise an 
> > entanglement issue, or, as I prefer to think of it, a "no religious 
> > decisions" issue.  But it seems to me that this could easily be 
> > avoided by just relying on religious decisions made by 
> others -- if, 
> > for instance, the customers want stuff certified kosher by the 
> > Orthodox Union, the government-owned food store can just 
> buy products 
> > with that certification mark, just as it buys other products that 
> > customers seem to like.  The same with Shariah-compliant 
> products; a 
> > government-owned investment company should be just as free to sell 
> > these as it is to sell other financial products that 
> customers want, 
> > subject to whatever outsourcing requirements the "no religious 
> > decisions" principle ends up imposing.
> >
> > 	Eugene
> >
> >> -----Original Message-----
> >> From: religionlaw-bounces at lists.ucla.edu
> >> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Esenberg, 
> >> Richard
> >> Sent: Tuesday, December 16, 2008 8:21 AM
> >> To: Law & Religion issues for Law Academics
> >> Subject: RE: First amendment suit against AIG bailout
> >>
> >> The case is going nowhere and you have to assume somewhat 
> different 
> >> facts to get to the level of plausibility - something that 
> I tried to 
> >> do on Prawfs this morning.
> >> http://prawfsblawg.blogs.com/prawfsblawg/2008/12/the-church-or
> >> -mosque-of-aig.html
> >>
> >> Rick Esenberg
> >> Visiting Assistant Professor of Law
> >> Marquette University Law School
> >> Sensenbrenner Hall
> >> 1103 W. Wisconsin Avenue
> >> Milwaukee, Wisconsin 53201
> >> (o) 414-288-6908
> >> (m)414-213-3957
> >> richard.esenberg at marquette.edu
> >> ________________________________
> >> From: religionlaw-bounces at lists.ucla.edu
> >> [religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock 
> >> [laycockd at umich.edu]
> >> Sent: Tuesday, December 16, 2008 9:03 AM
> >> To: religionlaw at lists.ucla.edu
> >> Subject: RE: First amendment suit against AIG bailout
> >>
> >>
> >> 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 law.ucla.edu>:
> >>
> >>> 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
> >>>
> >> 
> http://investing.businessweek.com/research/stocks/people/board.asp? 
> >> sym
> >>> bo
> >>> l=AIG.  Or am I missing something?
> >>>
> >>> Eugene
> >>>
> >>> ________________________________
> >>>
> >>>         From: religionlaw-bounces at lists.ucla.edu
> >>> [mailto:religionlaw-bounces at lists.ucla.edu] 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:
> >>>
> >>>
> >>>
> >>>
> >>>
> >> http://www.thomasmore.org/downloads/sb_thomasmore/
> >> DepartmentoftheTreas
> >>> ur
> >>> 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
> >>   734-647-9713
> >> _______________________________________________
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> > _______________________________________________
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> _______________________________________________
> To post, send message to Religionlaw at lists.ucla.edu To 
> subscribe, unsubscribe, change options, or get password, see 
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> Please note that messages sent to this large list cannot be 
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