Why the OLC matters

This was in a NYT article in October,

In a newly disclosed legal memorandum, the Bush administration says it can bypass laws that forbid giving taxpayer money to religious groups that hire only staff members who share their faith.

The administration, which has sought to lower barriers between church and state through its religion-based initiative offices, made the claim in a 2007 Justice Department memorandum from the Office of Legal Counsel. It was quietly posted on the department’s Web site this week.
...
several law professors who specialize in religious issues called the argument legally dubious. Ira C. Lupu, a co-director of the Project on Law and Religious Institutions at George Washington University Law School, said the opinion’s reasoning was “a very big stretch.”

And Marty Lederman, a Georgetown University law professor who worked in the Office of Legal Counsel from 1994 to 2002, said the memorandum’s reasoning was incompatible with Supreme Court precedent. He pointed to a 2004 case, in which the court said government scholarships that could not be used to study religion did not substantially burden recipients’ right to practice their religion because they could still study theology with their own money.

In the same way, Mr. Lederman said, World Vision is free to have an antigang program that hires by faith without using taxpayer money.

I remembered this while writing the brief piece on the OLC and low and behold the man i put forth in that post is the man the Times went to for a quote on this story.

This is the type of decision that hopefully gets overturned and reversed by an Obama administration. I think it is a reasonable inference that the Bush administration went looking for a way to fund religious organizations with tax payer money and they used the OLC to justify it. Whenever that happens the legal reasoning is always going to be transparently thin.

This is an object lesson that activism in law is not done by the liberals alone. Conservatives are just as if not more active in power.