In Murray v. United States Department of Treasury, et al. (No. 11-1063), plaintiff Kevin Murray argued that the bailout of American International Group, Inc. under the Emergency Economic Stabilization Act of 2008 (“EESA”) violated the Establishment Clause because six of the company’s subsidiaries sell and market Sharia (or Islamic law) compliant financial products. The plaintiff based his injury on the premise that Sharia law is “the basis for the global jihadist war against the West and the United States,” and “sends a message” that non-adherents of Islam are outsiders.

The opinion, written by Judge Clay, finds that Congress did not contemplate that the EESA would support religious activities, as evidenced by the EESA’s mandate that the Secretary of the Treasury consider the following goals before exercising its authority under the Troubled Asset Relief Program (“TARP”); “protecting taxpayer interests, providing market stability in order to protect American jobs and savings, and ensuring the eligibility of all  financial institutions regardless of size or type.” Likewise, nothing in the legislation or regulations expressly contemplates that the EESA would be used to support religious projects.

Interpreting Hein v. Freedom from Religion Found., Inc., 551 U.S. 587 (2007), to mean that standing for such a claim would only be appropriate if Congress or the agency had expressly intended the funds be used to support religious activities, the Court held that the taxpayer-plaintiff lacked standing to challenge expenditures that resulted from executive discretion and not congressional action.

The panel likewise dismissed plaintiff’s evidence of intent as “a few scattered bureaucratic activities intended to inform policymakers about a subject relevant to their regulatory responsibilities that happened to have a religious nexus,” finding that such evidence falls well short of Congressional intent to market financial products that were compliant with Sharia law.  In short, the Plaintiff lacked standing to challenge the EESA under Hein because he had not demonstrated that Congress “understood that much of the aid” under the EESA “would find its way” to fund Islam-friendly products.