Panel: RELIGIOUS FREEDOM IN TENSION: COMPARATIVE CHALLENGES TO CONFLICTING RIGHTS



586.2 - AGAINST STRATEGIC LITIGATION: RELIGION VS. DISCRIMINATION IN THE U.S. CONSTITUTIONAL SYSTEM

AUTHORS:
Vanoni L. (University of Milan ~ Milan ~ Italy)
Text:
This paper critically examines the rise of strategic litigation in conflicts between religious freedom and anti-discrimination principles within the U.S. constitutional system. Strategic litigation has become a dominant tool for navigating these tensions, used by advocates on both sides to seek judicial resolutions to deeply polarizing disputes. While strategic litigation can be an effective means of advancing legal clarity and protecting rights, this paper argues that it often exacerbates societal polarization, entrenches adversarial politics, and narrows the scope for mutual accommodation. Focusing on U.S. Supreme Court cases, this paper explores how strategic litigation has led to outcomes that prioritize binary resolutions over nuanced approaches. It critiques the tendency of such litigation to frame religious freedom and anti-discrimination as mutually exclusive conflicts, marginalizing broader societal interests and eroding opportunities for constructive dialogue. The paper calls for a rethinking of reliance on courts to mediate these disputes, advocating instead for policy-driven and dialogic solutions that prioritize coexistence and mutual respect. By examining the limitations of strategic litigation and its impact on the broader constitutional balance, this paper contributes to ongoing debates about the role of the judiciary in resolving value-laden conflicts in a pluralistic society.