Bush has secretly invalidated another set of laws. In this installment, Junior set out to tear down Congress's church-state barrier, and the incomparable Charlie Savage is once again on the case.
This time around the mechanism wasn't a signing statement appealing to the unitary executive, but a memorandum from the now infamous Office of Legal Counsel, secretly issued in 2007 and "quietly posted" on the DoJ website this week. The memo claims that all laws which forbid recipients of federal grants from screening out non-church-members from their staffs are superseded by the 1993 Religious Freedom Restoration Act.
But 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...
Christopher E. Anders, senior legislative counsel to the American Civil Liberties Union, said he was alarmed by the 2007 memorandum’s conclusion that the government does not have a "compelling interest" in enforcing a federal civil rights statute.
"It’s really the church-state equivalent of the torture memos," Mr. Anders said. "It takes a view of the Religious Freedom Restoration Act that allows religious organizations to get federal funds without complying with anything."
The Addison/Bush philosophy in action: make up your own laws, keep them secret from the voters, and above all keep them secret from the courts. Thomas Jefferson's grave has turned into a perpetual motion rotisserie.