A tried and true tactic is being used in the fight for religious liberty in the workplace.

Pre-enforcement challenges ensure business owners are not at risk of criminal or civil penalties for violating an anti-discrimination law when asked to participate in any practice that violates his or her conscience, according to heritage.org.

The challenge provides individuals with clear guidance from the courts on what the legal ramifications might be before a law is used against them, according to heritage.org.

For example, if a law threatens a business owner for declining to help with a same-sex marriage ceremony, the challenge will give the courts the opportunity to recognize First Amendment and statutory defenses to the law before any penalties are assessed, according to heritage.org.

Free Society

“In a free society, no one should have to be punished before they can challenge an unconstitutional law,” according to the Alliance Defending Freedom.

Given the success of pre-enforcement challenges elsewhere in the First Amendment realm, this strategy represents a viable option for those seeking protection from the courts, according to heritage.org. The challenges have the potential to provide refuge for conscientious objectors who want to live out their faith in the marketplace without fear of prosecution.

A History of Success

On Oct. 17, 2005, representatives from the video game industry successfully used pre-enforcement challenges when a law sought to restrict the sale of violent video games to minors. The United States Supreme Court eventually heard this pre-enforcement challenge and invalidated the law, the ADF reported.