Director, Commonwealth Policy Center

Last night Richard Nelson participated in a panel for a spirited discussion on KET’s Kentucky Tonight program.  The topic was the recent Hobby Lobby Supreme Court decision. Nelson was joined by Amy Cubbage of the Kentucky ACLU; Samuel Marcosson, professor of law at the University of Louisville; and Paul Salamanca, professor of law at the University of Kentucky.

The discussion covered several points, including religious liberty, the impact of the ruling on future cases and the legal details of Samuel Alito’s majority decision. Here’s a very brief summary of where the panelists stood:

-Professor Marcosson argued that the decision was poorly reasoned and would prove to be a disastrous precedent for future cases involving corporations that want to opt out of federal legislation.
-Cubbage agreed with Marcosson and argued that the court’s decision was motivated by gender bias and violated women’s rights.
-Nelson said that the decision was a victory for religious liberty and preserved an insurance and corporate policy that works for Hobby Lobby’s employees.
-Professor Salamanca agreed with Nelson and added that Hobby Lobby’s exemption was not burdensome to any third party, thus the court ruled correctly in applying the Religious Freedom Restoration Act (RFRA).

Something I took away from the conversation was how neither Marcosson and Cubbage were able to articulate a feasible alternative to the ruling that would have allowed Hobby Lobby to remain open. Nelson asked both panelists several times whether closing a 500+ location retail business and losing thousands of jobs was really the best possible alternative to the Court’s decision. Neither answered that question directly but appealed to the importance of every business abiding by the rule of law.

What Cubbage and Marcosson missed was that RFRA is just as much a part of the law as the Affordable Care Act. The Supreme Court determined that the action against Hobby Lobby sought by the Obama administration did not allow for a lesser restrictive means by which to enforce the ACA. That means it was the Department of Justice, not Hobby Lobby that ran afoul of the law.

The fact is that progressives would indeed have rather seen Hobby Lobby’s employees lose their job than the President’s radically invasive agenda receive any kind of setback.

Watch the panel discussion here: