Is Religious Strategic Litigation Special? A Deliberative View

Abstract Legal cases in the policy area of religion—concerning religious exemptions, euthanasia, same-sex marriage, or religious education—are fiercely contested. Although democratic theory has long debated the role of religion in court, the normative challenges of religious strategic litigation have yet to be discussed. I conceptualize religious strategic litigation as a political practice in which groups take legal action based on norms concerning religion in order to pursue broader political agendas. Challenging the notion that religious strategic litigation is special, that is, that it raises particular concerns of democratic legitimacy, I argue that it shares its problematic features with strategic litigation in other policy areas. Democratic theory should focus on how strategic litigation in any policy area can potentially disempower citizens.