How to Defend Religious Liberty: Going on Offense against Bad Laws

Here is David Rosenthal writing about how to defend religious liberty at American Thinker:

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 officersunion advertising, and speech critical of the Vietnam War, to name just a few.

Read more: American Thinker

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