Formally, judicial analysis of a challenged statute’s validity should be consistent, regardless of the challenge’s pre- or post-enforcement posture. A post-enforcement posture arises when an aggrieved party defensively challenges a purportedly unconstitutional statute being enforced against them. Alternatively, a pre-enforcement posture arises when an impacted party strikes first, attacking the statute by asserting a credible threat that the law will be enforced against them in the future. Either way, judicial evaluation of a statute’s validity should turn on its content and effect—not on whether it was challenged before or after enforcement.
This Article challenges that assumption, arguing that pre-enforcement challengers enjoy significant strategic advantages in court. To be sure, offensive, pre-enforcement challengers must establish that their suit presents a genuine case or controversy and convince decision-makers that they face a real harm. But on the other hand, attorneys planning pre-enforcement challenges often enjoy the opportunity to select their clients, control their suit’s timing and forum, and shop for judges. And when challenging laws that protect beneficiaries from harms such as discrimination, pre-enforcement challengers likely benefit from the absence of identified victims in speculative lawsuits.
After identifying these potential advantages, this Article analyzes a set of factually similar challenges brought by wedding vendors against public accommodations laws that forbid discrimination against LGBTQ+ customers based on their sexual orientation. It explains that pre-enforcement challenges—including speculative cases brought by plaintiff businesses that had never received requests from LGBTQ+ customers—were consistently more successful than post-enforcement challenges arising from proceedings against defendant businesses that denied services to LGBTQ+ customers. Finally, this Article explores the implications of pre-enforcement advantages for standing doctrine, litigation strategy, and the proper role of courts in a democratic society.
