Roy Moore: No, I don't support religious tests that would bar Muslims from serving in Congress; Update: Or does he?

He was pretty clear about this in 2006, in a column for WND about Keith Ellison:

The Islamic faith rejects our God and believes that the state must mandate the worship of its own god…

Our Constitution states, “Each House [of Congress] shall be the judge … of the qualifications of its own members.” Enough evidence exists for Congress to question Ellison’s qualifications to be a member of Congress as well as his commitment to the Constitution in view of his apparent determination to embrace the Quran and an Islamic philosophy directly contrary to the principles of the Constitution. But common sense alone dictates that in the midst of a war with Islamic terrorists we should not place someone in a position of great power who shares their doctrine. In 1943, we would never have allowed a member of Congress to take their oath on “Mein Kampf,” or someone in the 1950s to swear allegiance to the “Communist Manifesto.” Congress has the authority and should act to prohibit Ellison from taking the congressional oath today!

Fast-forward to 2017, when he’s 17 points up in the polls and in Washington today attending the Senate Republican lunch. Do you still believe Muslims should be barred from serving in Congress, reporters asked him? Moore’s reply:

“There should be no religious test, no. That’s against the Constitution,” Moore told reporters as he walked through the Senate basement on Tuesday…

On Tuesday, he said that he wished the media “would print me as I am.”

“Well I’m a lot different than what The Washington Post has been printing,” he told a Post reporter. “I don’t hate people.”

Did he change his mind? Or is he splitting hairs in his answer about what he thinks should happen? Here’s a short comment he made recently when he was asked about whether Muslims should serve in Congress:

I think he’s saying that Muslims can serve *if* they swear before the Christian God, which he distinguishes from the Muslim God, that they’ll place their loyalty to the Constitution above their loyalty to Islam. Since U.S. law and Islamic law conflict, you can’t swear loyalty to the former and remain a Muslim in good standing in Moore’s telling. Your oath of office makes it an either/or choice. Presumably, then, he thinks there should be no bar to service if you’re a non-devout or non-practicing Muslim. Congressman Aziz Ansari? Sure. Congressman Keith Ellison? No can do. The thing is, I assume Moore would say that any Muslim who pledges allegiance to the Constitution in the manner he wants would no longer qualify as a Muslim at all, having forsworn sharia law in the process. In that sense it *is* a religious test. You can’t be a Muslim as Moore understands it and serve. Only a nominal Muslim can.

Confusing, but luckily we’ll have six years of reporters quizzing him about this for him to flesh out the intricacies of his position. I wonder how long he’ll last in Washington before disappointing his base and declaring flatly that he renounces his 2006 position altogether, just to put the subject to bed. Besides, there are other ways for him to build goodwill with nationalists: Yesterday he called for impeaching the federal district judge who temporarily blocked Trump’s ban on transgenders in the military from taking effect.

“The decision of a federal judge in the District of Columbia enjoining President Trump’s executive order on transgenderism in the military is absolutely ridiculous and is a perfect example of the outlandish doctrine of judicial supremacy whereby judges exalt themselves over the Constitution they are sworn to uphold. As recently as 2013, the American Psychiatric Association considered transgenderism to be a mental disorder. And only in 2016 did the Obama administration attempt to impose that delusion upon our fighting forces. To say that President Trump cannot prohibit transgenderism in the military is a clear example of judicial activism. Even the United States Supreme Court has never declared transgenderism to be a right under the Constitution.

“Judge Kollar-Kotelly should be impeached by the House of Representatives for unlawful usurpation of power (Article II, SS 4) and lack of good behavior (Article III, SS 1), and referred to the Senate for a vote on removal. Not only has she placed herself above the Constitution in finding such a nonexistent right, but she has also interfered with the powers of the President as Commander in Chief of the armed forces under Article II, SS 2, of the Constitution.

The spectacle of Roy Moore wanting a judge unseated for a rogue ruling is rich with irony but he’s right that the court’s decision in the transgender case was unusual. It was based on finding that transgenders are a quasi-suspect class for purposes of the Equal Protection Clause, i.e. a discrete minority that requires special constitutional protection to protect it from persecution by the majority. The Supreme Court has never held that. The district court is tying Trump’s hands based on its own novel legal theory. On the other hand, any form of discrimination in equal protection analysis requires the government to show at least a rational basis for the discriminatory policy, whether or not it’s aimed at a “suspect class.” The president gets deference on that but not absolute deference; in this case, Trump ordered the transgender ban before the Pentagon had finished its study on the effect transgender troops have on readiness and morale, and Mattis ordered that transgender troops could continue to serve in the meantime. Absent evidence that the ban is based on something more than pure discrimination, the court could have concluded that there was simply no rational basis for imposing it.

What Moore’s really arguing against, true to populist form, is judicial review. I wonder how long before that’ll be a mainstream Republican position. The current Supreme Court is like the current Congress in the sense that it’s nominally right-leaning but hasn’t delivered enough victories to satisfy right-wingers, especially on social issues thanks to Anthony Kennedy. Moore’s well positioned politically to rail against the courts given his own history on the Alabama bench. Maybe judicial review will be his pet cause in the Senate.

Update: Like I say, he’s parsing the definition of religious test finely. MSNBC asked him if he stood by his old WND column about Ellison. Yep: