Agenda-masking

Strategic litigation is an instrument for shifting public attention. Religious strategic litigation can empower citizens by providing an avenue for agenda-setting. It can be used to define a problem in a specific way. Taking a case to court is a strategy to get attention and to influence public discourse. Religious and secular litigants use their right to legal contestation to contest public decisions. Vulnerable individuals can be supported by legal organizations to make their claims in national and transnational courts. The right to legal contestation gives religious citizens an opportunity to contest decisions that were justified by secular reasons alone, but it also gives secular citizens an opportunity to challenge decisions that were justified by inaccessible religious reasons (see Lafont, Reference Lafont2026 in this Special Issue).

Religious strategic litigation can be used in this way, but it also leaves room for agenda-masking. Agenda-masking means that a litigation collective’s public narrative misrepresents the connection between a legal case and a political agenda. The litigation collective is not using a legal case transparently to set an agenda but tells a different story about what they aim to achieve. The content and merits of specific legal cases are comprehensible mostly for legal experts, but this is combined with a compelling public narrative targeting ordinary citizens. From the perspective of most citizens, it is difficult to determine whether the legal case aligns with a group’s political agenda, whether both align with the public narrative presented by the litigation collective—and whether they align with their own position (Bob Reference Bob2019, p. 67).

What might be a reason to assume that religious strategic litigation has a higher risk for agenda-masking than strategic litigation in other policy areas? One reason might be that religious litigation cases are seen differently by the citizenry. The specific issue for agenda-masking could be that in contemporary secular states most citizens do not have high levels of religious knowledge, making it more difficult to scrutinize the litigation collectives’ narratives for mismatches (Dinham and Francis Reference Dinham and Francis2015). Indeed, the lack of legal expertise is paired with a lack of religious expertise. Religious strategic litigation could be an especially promising path for bad faith agents to engage in agenda-masking because it is more difficult for citizens contest their religious and legal claims.

At first glance, this seems to reiterate a longstanding debate about religious reasons in public debates (Lafont Reference Lafont2007; March Reference March2013), and especially the epistemic inaccessibility of religious claims (Laborde Reference Laborde2017, pp. 126–127). In this discussion, the main issue is whether political decisions can be justified by reasons that are not accessible for secular co-citizens. In this case, however, the point does not seem to be about epistemic inaccessibility but rather about evaluating the religious context to understand the importance and sincerity of a specific claim. There seems to be a different understanding of religious expertise at play here (see Bardon, Reference Bardon2026 in this Special Issue). Indeed, it might be hard for citizens to determine whether, for example, being obliged to make a cake promoting a gay-friendly message is indeed a problematic infringement on one’s religious freedom, and it might be even more difficult to determine whether this is a sincere grievance or merely presented as such to gain visibility. Citizens might have the tendency to give those claimants the benefit of the doubt. This would mean that religious strategic litigation can be used for agenda-masking more easily than other forms of strategic litigation because citizens might scrutinize religious strategic litigation less thoroughly.

The problem with this argument is that it makes a comparative statement that is contestable: that it is more difficult for citizens to scrutinize religious strategic litigation than strategic litigation in other policy areas because most citizens lack legal and religious expertise. We must keep in mind that strategic litigation is always highly specialized and requires expertise in a specific policy area. Citizens also lack expertise in the areas of climate science, anti-discrimination law, or energy transition. In every policy area, there will be a small number of experts and a majority of citizens who are not experts. In addition, it is highly context-dependent which religious claims are awarded the benefit of the doubt and which are “suspicious” and “interrogated,” such as many legal claims by Muslims in Europe (Amir-Moazami Reference Amir-Moazami2022). It is important to be more precise about which religious claims are discursively advantaged and which are confronted with “epistemic ignorance” (Kidd Reference Kidd, Kidd, Medina and Pohlhaus2017).

Religious strategic litigation is disempowering when it is used in a way that masks the political agenda of litigation collectives—but agenda-masking happens in strategic litigation in other policy areas as well. The normatively relevant aspect, from the deliberative perspective, is the potential to present a narrative about a legal case that does not match the political agenda, and this is a common feature of litigation strategies. Consider the recent rise in climate litigation cases described as “green v. green cases: involving apparent trade-offs between the need to protect biodiversity and projects or policies that are introduced on climate grounds” (Setzer and Higham Reference Setzer and Higham2024, p. 7). Such cases are not clearly aligned with climate protection goals nor clearly anti-climate protection, but they “may sometimes be promoted by bad faith actors involved in climate obstruction” (Setzer and Higham Reference Setzer and Higham2024, p. 7). In other words, litigation collectives use the language of climate litigation to undermine climate protection efforts.

Group-simulating

Second, religious strategic litigation can be a powerful tool for bringing together like-minded individuals and groups. The overarching narratives provide a way to strengthen groups and political movements. Take the example of religious strategic litigation by the Sikh minority at the ECtHR. It was “not only meant to remedy the grievances of the French Sikh community, but to unite the global Sikh community over a unified identity and understanding of their religious duties” (Harms Reference Harms2022, p. 18). Religious groups can use strategic litigation to rally a dispersed community behind a shared political and legal project.

But while religious strategic litigation can be group-strengthening, it might also be used for group-simulating. Litigation collectives can initiate strategic litigation in the name of a civil society group or merely present itself as such. When litigation collectives falsely claim that their legal case is grassroots-based, we can speak of “astroturf strategic litigation.” This means that litigation collectives act as if their case and their political agenda were grassroots-based and supported by many citizens while hiding the donors and initiatives behind their case.

Why might we think that group-simulating is more likely in religious strategic litigation? One reason might be that turning a political issue into a religious issue gives it political credibility in some political contexts. Socio-legal scholars distinguish political contexts based on their different “discursive opportunity structures” (Ferree et al. Reference Ferree, Gameson, Gerhards and Rucht2002; McCammon Reference McCammon, Snow, della Porta, Klandermans and McAdam2022). The idea of “discursive opportunity structures” is that some ideas and “frames” are perceived as more legitimate or plausible in the broader public, structuring the potential success of different collective action strategies and narratives (McCammon Reference McCammon, Snow, della Porta, Klandermans and McAdam2022). In the US, for example, religious strategic litigation has the potential to mobilize supporters while conferring “a kind of moral authority on the claimants” (Hutler Reference Hutler2019, p. 328). Hutler argues that claimants “often acquire the appearance of righteousness or integrity—an apparent moral high ground that can be parlayed into role-model status or positions of leadership” (Hutler Reference Hutler2019, p. 325). This incentivizes groups to build a legal strategy around religious norms.

Consider the rising numbers of cases where corporations donate money to religious legal organizations to support litigation. This has been called the “corporate-religious coalition” in the US context (Wuest and Last Reference Wuest and Last2024, p.151). Scholars have demonstrated how “political donors and legal visionaries […] have leveraged religious [health care] providers in their attempts to transform government institutions more generally” (Wuest und Last, Reference Wuest and Last2024, p. 151). Religious exemptions cases, for example, are often presented as aiming to protect the rights of a relatable religious citizen—a cakeshop owner, a family business—without explaining the broader political agenda. In the famous Hobby Lobby case in the US, religious strategic litigation not only aimed to exempt individuals for religious reasons but to challenge the legal requirements to pay for contraception as part of the Affordable Care Act (Corsalini Reference Corsalini2024).

The argument is that political groups have incentives to turn their political strategies into cases of religious strategic litigation because of the special standing religion has in the eyes of the citizenry. But it is highly context-dependent where and when which religious framing confers advantages (Hollis-Brusky and Wilson Reference Hollis-Brusky and Wilson2017). It would be an oversimplification to claim that discursive opportunity structures are generally better for religious strategic litigation. Instead, we have to consider religion’s role in a given polity, as well as its context-dependent potential for political mobilization (Mantilla Reference Mantilla2018). Consider the canonical study by Ferree et al. comparing the different discursive opportunity structures for (religious) debates about abortion in the US and German contexts (Ferree et al. Reference Ferree, Gameson, Gerhards and Rucht2002, pp. 75–78). They argue that despite the institutional importance of the major Churches in Germany, the cultural discursive opportunities were much more limited there than in the US. A similar observation was recently made for the Finnish debates about abortion where religion is seen as a “troublesome resource” for public and parliamentary debates in an increasingly secularized discursive space (Äystö and Hjelm Reference Äystö and Hjelm2024; for a discussion of Norway see Brekke Reference Brekke2024).

What is more, group-simulating and “astroturfing” is a common practice in non-religious strategic litigation as well. The idea of “selling” a relatable story in order to justify legal action is a core element of strategic litigation in all policy areas. In an article about strategic litigation against governmental regulation in the US, for example, the Washington Post reports how “attorneys from the powerful political network of Charles Koch, a billionaire who has spent decades and millions fighting government regulation” attended the 2019 Seafood Expo North America: “They weren’t there for the seafood samples. They were fishing for fishermen, seeking stories of boat captains upset by federal regulations that would soon require herring fishermen to pay for onboard government monitors” (Jouvenal et al. Reference Jouvenal, Swaine and Marimow2024). The selection of plaintiffs with relatable stories that fit the overall political strategy is a common feature of strategic litigation. The public narrative “frames the case as a band of small-time fisherman fighting an unjust agency that wanted to charge them more than $700 a day” (Jouvenal et al. Reference Jouvenal, Swaine and Marimow2024). Of course, these stories are selected based on a careful analysis of the discursive opportunity structures. While it is useful in some contexts to frame a legal case as a religious case, in other contexts, a secular framing might be more promising.

Context-distorting

Third, strategic litigation gives citizens an opportunity to criticize malfunctioning political institutions. It allows for context-disclosing. Litigation collectives often justify their actions by saying that strategic litigation is a last resort, a defense against legal attacks, a reaction to political inertia, or a tool for an overlooked minority. But it is difficult to determine whether the public justification for taking legal action matches a plausible description of the political context. Religious litigation collectives can misrepresent the political background conditions of strategic litigation. This can be called context-distorting. Context-distorting involves making wrongful claims about the political or institutional context to justify legal action.

Why would religious strategic litigation be particularly prone to disempowering citizens by distorting the context? One reason could be that citizens are used to some forms of religious strategic litigation and are therefore less likely to scrutinize litigation collectives critically. Consider how religious strategic litigation hardly attracts broader media attention in Europe today, while climate litigation is covered in detail (Wonneberger Reference Wonneberger2024). The heated debate about climate litigation in Europe in recent years (Bönnemann and Tigre Reference Bönnemann and M.2024; Eckes Reference Eckes2024) could be interpreted as showing that strategic litigation in this policy area has not yet been “normalized.”Footnote ² It could be argued that in some contemporary jurisdictions, religious strategic litigation has a “legacy of legitimacy,” meaning that it has been used in the past for many legitimate goals—by persecuted minorities, by groups who were not heard in legislatures. This legacy of legitimacy can extend to cases where plaintiffs publicly repeat these narratives. In those traditional cases that inform the academic and public debate about religious strategic litigation (such as Sherbert v Verner or the French and German cases about Muslim headscarves), plaintiffs were religious minorities who wanted to be exempted from general laws.

Against this background, it does not come as a surprise that it is a common pattern among religious litigation collectives to claim that they are minorities and discriminated against (Kaveny Reference Kaveny2020). While there are some groups for whom this is a plausible description, such as Muslims in most Western European states, Christian groups can hardly claim to be politically marginalized in the US (Dunn Reference Dunn2023). Of course, this is not a clear-cut case. Based on numbers alone, Evangelicals in the US are a minority; in 2021, 24% of adults in the US identified as evangelical or born-again Christians (Smith Reference Smith2021). But they are not a politically marginalized, in the sense of having less political power (Kaveny Reference Kaveny2020). More recently, there is a trend in presenting Christians as the most persecuted minority globally (Philips Reference Philips2025). Not only are some hegemonic groups claiming to be underrepresented or persecuted but they have also changed their legal and political goals. Many scholars observe a shift: “The new generation of conscience-based objections differs sharply from its predecessors in that it involves claims that are interventionist and intrusive as opposed to claims aimed at withdrawal and absence from discrete areas of mainstream collective undertakings” (Mancini and Rosenfeld Reference Mancini and Rosenfeld2018, p. 1). These litigation collectives have a different strategy: “They do not seek merely to be left alone. Instead, they wish to convince the country that their moral views describe the correct way to live, not only for Christians, but for everyone” (Kaveny Reference Kaveny2020, p. 74).

The argument is that if citizens are used to religious strategic litigation of the old type, they might be less critical in scrutinizing practices belonging to the new type. Of course, this argument builds on several contentious assumptions. Not only might scholars contest the distinction between an “old type” and a “new type” of religious strategic litigation but the problem is, again, that it is context-dependent and might also be valid for other policy areas. A “David against Goliath” or “defending against an existential threat” framing is used just as much in the “fished fishermen” example mentioned above. What might have been “normalized” and carries the “legacy of legitimacy” is that strategic litigation is used as a weapon of the weak—as understood in the so called “political disadvantage theory” according to which “groups lacking access to the executive and legislative branches of government will consequently seek redress through the courts” (Vanhala Reference Vanhala2021; Cortner Reference Cortner1968). This attempt at explaining strategic litigation has been empirically disproven but might still play a role in citizens’ normative evaluation of legal strategies by different groups. But as far as I am aware, this is an open question in research on comparative legal cultures (Koch and Kjølstad Reference Koch and Kjølstad2023) or “folk constitutionalism” (Elliott Reference Elliott2024). It is important to identify such strategies of context-distorting in different policy areas. From a deliberative perspective, it is problematic when powerful political groups “gaslight citizens” (Beerbohm and W. Davis Reference Beerbohm and W. Davis2023) by claiming to be a discriminated minority (Southworth Reference Southworth2024).