‘Religious liberty’ is coming for voting rights

Every day, I skim through my Google alert set for “religious liberty,” seeing the same conflicts rehashed ad nauseam. Despite the rich religious pluralism of our country, our public debate over the meaning and protection of religious liberty often seems confined to a narrow set of issues — particularly, abortion and LGBTQ rights. It might, therefore, seem reasonable to pigeonhole the religious liberty debate as just one facet of the seemingly endless culture war. That would be a serious mistake. 

Last week, a new kind of religious liberty claim caught my eye — one impacting efforts to strengthen our democracy. In the wake of President Trump’s attempt to sabotage the 2020 election, the House of Representatives on Thursday passed the “For the People Act,” a voting rights and election reform bill. Among other things, the act would require states to use bipartisan, representative committees for congressional redistricting in order to avoid partisan gerrymandering. All members of these committees would need to be screened for conflicts of interest, and would need to disclose their involvement with any organizations or campaigns. 

A recent article by the conservative Catholic News Agency claims that this provision of the bill “could present grave concerns for religious liberty.” Specifically, longtime conservative operative and voting rights opponent Hans von Spakovsky claims that requiring redistricting commissioners to disclose their organizational affiliations — including with religious organizations — could in practice impose a religious test on potential commissioners. 

At a time when people of faith are hugely overrepresented in Congress — while about a quarter of Americans claim no religious affiliation, only one member of Congress identifies as religiously unaffiliated — this argument seems dubious at best. And of course, von Spakovsky is uninterested in tweaking the bill to incorporate the “No Religious Test” clause of the Constitution, or to remove the requirement that commissioners disclose affiliations with religious organizations. He wants to tank the bill altogether. 

It’s no surprise that von Spakovsky might turn toward even such a specious religious liberty argument in an attempt to stymie democratic reforms. After losing the marriage equality battle in Obergefell v. Hodges, the conservative movement has had incredible success using its “Plan B” approach of promulgating religious exemptions from LGBTQ and other civil rights laws through legislation and litigation. Over the past year, religion law experts barely have been able to keep up with the flood of (increasingly successful) religious exemption claims related to COVID-19 public health measures. Less well known are the ways in which religious exemptions have been used to create large carve-outs from certain labor laws. 

While religious exemption conversations are still dominated by debates over sex, marriage and reproduction, we confine it to a “culture war” issue at our peril. The ability of religious exemptions to undercut a wide swath of regulations and protections in the areas of economic and workers’ rights, public health, environmental justice and even democratic reforms should not be underestimated. 

Rather than continually playing defense in response to ever broader religious exemption requests across a widening range of issues, those outside the Christian right must reclaim and fight for our own vision of religious liberty rooted in a commitment to democracy, pluralism and equality.

Elizabeth Reiner Platt is the director of the Law, Rights, and Religion Project at Columbia Law School. Follow her on Twitter @lizrplatt.