The Justice Department Office of Legal Counsel is mulling a Bush-era memo that carved out an exemption for faith-based groups seeking government contracts, The Washington Post reported ^[1] today.

The 2007 memo carved out an exemption in employment discrimination law that allows religious groups to receive federal money, even if they hire only members of their faith, according to The Post’s Carrie Johnson. A “legal source” told the newspaper the exception allowed DOJ to award $1.5 million to a Christian charity for a gang-prevention program.

President Obama promised on the campaign trail he would cut off government funds to groups that proselytized, or employed only members of their religion. President George W. Bush expanded government contracts to religious groups through the White House Office of Faith-Based and Neighborhood Partnerships, which was established in 2001.

“Before the Bush years, religious organizations that got money just assumed they had to hire the most qualified person and couldn’t proselytize,” Barry W. Lynn, executive director of Americans United for the Separation of Church and State, told The Post.

Lynn told the newspaper that he wrote a letter to Attorney General Eric Holder to ask for action. He said the letter “presents the golden opportunity to the Department of Justice to reverse clearly erroneous past policy and to start looking at a new, constitutionally based framework.”

A “Justice Department source” told The Post that the review of the 2007 memo is not on the OLC front burner. The office is focusing on more urgent legislative and national security right now, according to the Post’s source.

Dawn Johnsen (Indiana University)

But that could change if OLC nominee Dawn Johnsen is confirmed by the Senate.

Johnsen, who has waited more than five months for the full Senate to move on her nomination, has expressed skepticism over the legality of the memo, according to The Post. Martin Lederman, an OLC deputy since January, also has his doubts about the memo, the newspaper said.

Obama’s OLC nominee has criticized many of the Bush-era OLC memos, including opinions that authorized the harsh interrogation methods for terrorism suspects.

She has written that the broad reading of presidential authority was “outlandish,” and the constitutional arguments were “shockingly flawed,” according ^[2] to The New York Times.

Republicans have jumped on Johnsen for these remarks and have questioned her ability to lead OLC.

Read our previous report on Johnsen here ^[3].