Note: This law review comment was revised and expanded on the evening of 2 March 2014.

As hedge fund managers and investment advisors are required to say, “past performance is no guarantee of future results.”  Nevertheless, does the fate of Arizona’s proposed Religious Liberty Law (Arizona Senate Bill 1062) help us predict the future outcome of Sebelius v. Hobby Lobby, Inc. (Docket No. 1354), which will be argued in the US Supreme Court later this month? Put another way, isn’t there substantial overlap between the substance of SB 1062 and the main issue in the Hobby Lobby Case?

On the one hand, SB 1062 would have allowed business owners (we say “would have” because this proposed law was recently vetoed by Jan Brewer, the Governor of the State of Arizona) to pick and choose who they want to do business with, provided they have (or claim to have) a sincere religious basis for their discriminatory preferences. [*] By the same token, the attorneys for Hobby Lobby likewise claim that business owners should also be able to pick and choose which parts of the federal HHS Mandate they want to comply with, provided (again) they have a sincere religious basis for their health-care preferences. (For more information about the issues in this case and the HHS Mandate, see our previous post titled Hobby Lobby Part 2 of 19 February 2014.)

By the way, Timothy Egan, an op-ed writer for the New York Times, makes a similar argument in his most recent essay published this weekend. Here is an excerpt from Egan’s op-ed:

As a corporation, Hobby Lobby asserts that life begins at conception. It opposes the health care law’s birth control mandate. A day-old zygote is a person. Preventing implantation of a fertilized egg with a standard intrauterine device, or I.U.D., is a form of abortion, in their argument. You can see where this is going: religion that trumps medicine, or religion that trumps science, backed by the high court. Secular, for-profit corporations could claim a faith exemption from complying with any number of laws. They may be opposed to I.U.D.’s in this case, but it could be vaccines in another. Or for that matter, refusing to allow a gay couple to open a gift registry at Hobby Lobby.

Although we agree with Mr Egan the main issue in SB 1062 and the Hobby Lobby Case is substantially the same, there is one major procedural difference between both examples: one issue was resolved politically through ordinary political channels (in which persons like Governor Brewer would be politically accountable to their constituents). The other issue, in contrast, will be resolved judicially in the highest court of the United States–a court from which there is no appeal–by unelected and unaccountable political appointees.

Whatever your political preferences on these controversial issues, the key question is this: which process do you trust more? The political process, or the judicial one?

[*] Aside from assuming the truth of circular assertions simply postulating the sincerity of one’s self-declared religious beliefs, how would you go about testing or corroborating the sincerity of a business owner’s beliefs?