A New Defense for Religious Liberty: Going on Offense against Bad Laws

It is no secret that religious liberty is under attack. The wedding photographer, florist, and cake baker are no longer able to practice their faith at work without fear of retribution for refusing to fall in line with the new government orthodoxy. The Free Exercise Clause of the First Amendment is designed to ensure that all Americans may freely live out their faith. This is not limited to freedom of worship, but includes the heart, mind, and soul of religious people, thereby guiding how people act in the public square. When a law restricts that first freedom, the American conscience is put on trial.

One way to preserve the American conscience is for individuals to pre-emptively put unjust laws on trial by way of pre-enforcement challenges. This ensures that the owner is not at risk of criminal or civil penalties for violating an ironically titled anti-discrimination law when faced with the challenge of being asked to participate in any practice that violates his conscience. Rather, a judge will be deciding only the validity of a law before its application blindsides an unwitting target. Further, a pre-enforcement challenge provides individuals with clear guidance from the courts on what the legal ramifications might be for certain conduct before a law is adversely used against them. For example, if a law threatens a business owner for declining to help celebrate a same-sex ceremony, a pre-enforcement challenge will give the courts the opportunity to recognize First Amendment and statutory defenses to the law before any penalties are assessed. Pre-enforcement challenges have a long pedigree in free speech cases, which carries over into the religious liberty context. For instance, the ACLU successfully brought a pre-enforcement challenge in 1999 to overturn a law that criminalized the dissemination of indecent material to minors over the internet on freedom of speech grounds. Moreover, pre-enforcement challenges have been brought successfully in a variety of other cases to protect free speech activities, including videotaping police officers, union advertising, and speech critical of the Vietnam War, to name just a few. As the Alliance Defending Freedom (ADF) explains, "[i]n a free society, no one should have to be punished before they can challenge an unconstitutional law." With the principle in mind, ADF recently launched a pre-enforcement challenge in support of religious liberty on behalf of clients in Arizona. In Arizona, Breanna Koski and Joanna Duka, the founders of Brush & Nib Studio, brought a pre-enforcement challenge against a law that would force the artists to use their calligraphy talents to literally hand-write words that violate their sincere beliefs. Phoenix Municipal Code Section 18-4(B) was amended in 2013 such that it is now a crime for any person to withhold goods or services offered at any place of public accommodation, which includes retail stores, on the basis of sexual orientation. If Koski and Duka were asked to help celebrate a same-sex ceremony by creating custom wedding invitations, they would decline as a matter of conscience, and the artists would risk being in violation of the law. Section 18-4(B) goes on to provide a constitutionally mandated exemption that "prohibitions concerning marital status, sexual orientation, or gender identity or expression shall not apply to bona fide religious organizations" (emphasis added), but the exemption does nothing to account for the conscientious objections of religious participants in the marketplace. The Phoenix Code provides that any violators of the law are subject to imprisonment for up to six months and a fine up to $2,500 as a Class 1 misdemeanor. Koski and Duka did not wait for the authorities to come knocking on their door. Rather, the women took the fight to the courts in an attempt to invalidate the law before it is ever enforced against them or other like-minded artists. While the case is still in the early stages of litigation, if successful, it will likely serve as a model for future challenges in the name of religious liberty nationwide. Given the success of pre-enforcement challenges elsewhere in the First Amendment realm, this strategy represents a viable opportunity for individuals to seek protection from the courts when legislatures adopt laws that threaten a person's first freedom. The culture war will rage on, but pre-enforcement challenges have the potential to provide refuge for conscientious objectors who want to live out their faith in the marketplace without fear of prosecution for doing so. It is time to put bad laws on trial before bad laws are able to do worse to conscientious objectors. David Rosenthal is a visiting legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.