The Thomas More Law Center (TMLC) has gone off the deep end. Here is how professor Richard Esenberg at PrawfsBlawg summarizes a complaint they recently filed:
The Thomas More Law Center has filed a complaint on behalf of a Michigan resident against Treasury Secretary Paulsen and the Board of Governors of the Fed. It alleges that the bailout of AIG violates the Establishment Clause.
Yes, that’s right, the Establishment Clause, the first clause of the First Amendment, the one that says: “Congress shall make no law respecting an establishment of religion.” How does bailing out an insurance company violate that principle? Professor Esenberg continues:
It turns out that AIG has a business unit that offers Shariah compliant financial products. In particular, it offers Takaful lines of insurance which, according to the complaint, invest in no businesses that areharam (or unIslamic). The Shariah compliant business units also pay the zakat, a religious tax that supports only Islamic charities.
. . .
The idea, I suppose, is that, by taking an ownership position in AIG, the government somehow endorses everything that the company does or converts AIG’s activities into state action. This is distinct from, say, pension fund investments because the state operates here as an active rather than a passive investor.
There are a couple different theories for how to deal with the Establishment Clause. The predominant one is called the Lemon test, named after the case of Lemon v. Kurtzman, where the Supreme Court first articulated it. Under that test, the court will ask whether the government act in question has a secular legislative purpose, whether the primary effect of the act is to advance or inhibit religion, and whether the act leads to excessive government entanglement with religion. Another test is called the endorsement test, because under that test the court will ask whether the government action “endorses religion.” The endorsement test was first articulated in Lynch v. Donnelly.
Almost everybody complains about the Lemon test, but the endorsement test is not really a full replacement for it. From what I can tell, both tests just cling to life in the purgatory where all the other Constitutional doctrines slink around and wait for judges to manhandle them into the eerie twilight that is a Constitutional opinion.
Anyway, this is basic stuff. What makes an Establishment Clause violation? The different tests are ways for judges to look at a wide variety of government acts and sort them out with at least a modicum of rationality: this is a violation, this isn’t, and so on. But anybody, not just judges, can figure this one out, I think. By just about any standard, including the Lemon test, the endorsement test, and just plain “common sense” (whatever that may be), can even a slightly thoughtful person look at the AIG bailout and decide that it falls into the “violation” category?
Start with the easy one. As an ordinary person observing current events, do you get the impression that, in bailing out AIG, the government is endorsing religion? Neither do I. So move on to the full-blown, three-prong Lemon test. What’s the primary legislative purpose of the bailout? To keep the entire world economy from collapsing in a little puddle? Looks like a clearly secular purpose to me. What’s the primary effect of the bailout? To shore up the bastions of Islam? Hardly. Should we even bother with asking whether there’s any government entanglement with religion, much less “excessive” entanglement?
So what are they smoking over at the TMLC? That’s an easy one. Just read their own website:
The Thomas More Law Center is a not-for-profit public interest law firm dedicated to the defense and promotion of the religious freedom of Christians, time-honored family values, and the sanctity of human life. Our purpose is to be the sword and shield for people of faith, providing legal representation without charge to defend and protect Christians and their religious beliefs in the public square.
But the freedom of Muslims to purchase insurance that complies with their religious belief (sort of like the freedom of Jews to purchase kosher foods that comply with their religious beliefs) apparently does not matter, not in the face of the bulldozer-Christianity advocated by the TMLC. And the fact that TMLC doggedly advocates for violations of the Establishment Clause in favor of Christianity sure makes this sound like the famous case of Pot v. Kettle.
How can we, as a society, fairly resolve these petty squabbles between religious people? By adhering to strict separation between religious matters and secular political matters, so there is no sense of unfairness or impropriety in government dealings with people of different religious beliefs. Just as the law should be no respecter of persons, it should be respecter of the beliefs of those persons.