The Thomas More Law Center (TMLC), a Christian legal group founded by Domino’s founder Tom Monaghan, has filed a very unusual federal lawsuit on behalf of a Michigan man seeking to stop the government from bailing out insurance giant American International Group (AIG) — on religious grounds.

The suit claims that the infusion of government money into AIG violates the establishment clause of the First Amendment because one subsidiary of AIG markets something called “Takaful insurance,” a form of insurance that appeals to Muslims because it is administered in a manner that comports with Islamic tradition and law, which is commonly referred to as sharia. Read the full complaint here.

Takaful insurance includes restrictions on how the funds may be invested, prohibiting the purchase of stock in companies that market products or services, like gambling, alcohol or pornography, that are against the Islamic sharia moral code. The insurance plan also pays what amounts to a tax, referred to as zakat, given to Islamic charities.

This case has provoked much discussion among legal scholars who specialize in First Amendment issues, and the discussion has been uniformly negative. Several scholars have noted that the complaint contains a great deal of anti-Islamic rhetoric that is not relevant to the legal issue. Richard Esenberg of Marquette University Law School, writing at PrawfsBlog, says:

[T]he complaint is chock full of assertions about the nature of Islam and the role of Shariah-compliant financial products in funding terrorism that have nothing to do with whatever legal arguments might be made in favor of the plaintiff’s position.

Eugene Volokh, a First Amendment specialist who teaches law at the University of California Los Angeles (UCLA), wrote on an email list devoted to religion law:

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. …

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.

He refers here to the “Lemon test,” a test that the courts use to determine whether a given policy violates the establishment clause. That test requires that a given policy have a clear secular purpose and that the primary effect of the policy not advance religion.

Other law professors on the list were even more blunt.

Esenberg declares, “There are certain cases that you just know are going nowhere. This is one of them.”

Doug Laycock of the University of Michigan Law School, bluntly calls the case “frivolous,” while Steven Jamar of Howard University Law School writes, “I would be sorely tempted to move for Rule 11 sanctions on this one.”

Rule 11 is a section of the Federal Rules of Civil Procedure that allow the courts to sanction an attorney for filing a case that is clearly frivolous.