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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.
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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. 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.
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.
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.
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