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Fighting Unjust Laws Before the Unjust Punishment
We'd like to talk today about something called a pre-enforcement challenge. We have talked about this before, but with a number of unjust laws cropping up, it is worth revisiting.
American Thinker provides the context:
"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.
"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."
For an example of the dangers of these sorts of laws, look to the story we spent much of last week on: Barronelle Stutzman. Just read this comment from ADF Senior Counsel Kristen Waggoner:
"If the government can ruin Barronelle for peacefully living and working according to her faith, it can punish anyone else in Washington for expressing their beliefs."
Pre-enforcement challenges across the U.S. aim at mitigating these sorts of injustices before they arise.
One such case comes not from rainy Washington, but sunny Arizona:
"quot;A Phoenix art studio that specializes in hand-painting, hand-lettering, and calligraphy for weddings and other events is challenging a city ordinance that forces the studio’s two young female owners to use their artistic talents to promote same-sex ceremonies. The ordinance also forbids them from publicly expressing the Christian beliefs that prevent them from doing so and that require them to create art celebrating only marriages between one man and one woman."
This is a case, similar to Barronelle Stutzman's, where creative professionals wish to retain their religious freedom while functioning in society. That isn't a big ask. Religious liberty is, in the words of Rick Warren, "America's First Freedom." If we lose religious freedom, other freedoms will fall quickly. After all, a government that is capable of forcing religious expression could force other or related forms of expression: speech, action, entertainment, and more.
That is why these pre-enforcement challenges are vitally important. Defending the American conscience from unjust government action matters in principle and in application, before unjust consequences and after.
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