First Prize for the Loopiest Establishment Clause Theory (of the week)

It goes to the plaintiffs in Murray v. Geithner (h/t to the spectacular Religion Clause blog), whose claim was that the government bailout of AIG violated the Establishment Clause because AIG offers and apparently "has advertised itself as the market leader" in loans which are compliant with certain dictates of Islamic law (You may be wondering what would qualify a loan as Sharia-compliant.  The court gives a list at pp. 5-6 of the order -- interestingly, one of the conditions strikes me as highly laudable: "a certain percentage of any net surplus, if any, derived from the collection of premiums is paid to charitable organizations").

The plaintiffs' theory is that by bailing out AIG, the government violated the Establishment Clause, and by agreement of the parties, the standard the court applied was the Lemon test.  The failure of the purpose prong is so patent as, in my view, to rise to the level of frivolousness.  Could any reasonable human think that the government purchased AIG preferred stock in order to promote or favor Islam?  On the effects prong (not my favorite, I admit), there was evidence that the Sharia-compliant loans constituted 0.022% of AIG's revenue when the government intervened.  Not a shred of evidence that this government "aid" to religion, such as it was, results in "religious indoctrination attributable to the government."  No evidence at all that the "aid" defines its recipients by reference to religion.  And if this is "entanglement" then the standard is practically void of meaning.

Why loopiest theory of only the week?  Actually, I was thinking about how a fully subjectivized endorsement test might apply in this kind of case; perhaps using that theory, the plaintiffs would have had a stronger leg to stand on (what EC plaintiff wouldn't?).  But no matter how anyone might feel about the bailout of AIG, this seems to me a truly odd way to complain about it.

The fact that this dog of a case made it to summary judgment and was not dismissed on the pleadings is indicative of the absurdity of some of the Establishment tests in circulation (the "pervasively sectarian" presumptions that the court discusses seem unwarranted to me, but whatever a "pervasively sectarian" institution is, AIG ain't it).  Undeterred, plaintiffs have filed an appeal to the Sixth Circuit. 

Ave atque vale.