Restricting Religion by Protecting Speech? Reflections on Cohran v. City of Atlanta

Abstract

The United States is in the grip of an extended debate over the meaning of the free exercise of religion. This is especially true as religious liberty has come increasingly to be viewed as restricting the rights of those not sharing the views of religious liberty claimants. One case that raises challenging questions about the scope of religious freedom is the federal district court case of Cochran v. City of Atlanta. In this short piece, I first provide a summary of the Cochran decision. Although detailed jurisprudential analysis cannot be provided in this piece, I do work to situate this decision within an emerging trend within American constitutional law: the trend to redefine religious liberty not as a free-standing constitutional protection but as one sub-element of a wider species of rights, specifically, the right of personally expressive speech. Through a short review of salient aspects of English and American legal history, I develop a threestage argument for suspecting that this move contains the potential to water down the degree to which the federal judiciary provides robust protection of the right of religious liberty.