By Marcia Coyle, From The National Law Journal

In a scenario reminiscent of same-sex marriage challenges last fall, the U.S. Supreme Court now has five petitions for review from religious nonprofits challenging the government’s means of accommodating their objections to contraceptive health insurance. And some heavy-hitting lawyers are on board.

Former Solicitor General Paul Clement of Bancroft, working with the Becket Fund for Religious Liberty, is counsel of record in two of the cases. Jones Day partners Noel Francisco and Paul Pohl represent two others. On the fifth petition is Robert Muise of the American Freedom Law Center in Ann Arbor, Michigan.

In 2014, Clement argued and won a case at the heart of the challenges: Burwell v. Hobby Lobby. A 5-4 high court held that the contraceptive insurance requirement in the Affordable Care Act substantially burdened the exercise of religion by closely held corporations and their religious owners in violation of the Religious Freedom Restoration Act.

Jones Day lawyers, and Francisco in particular, were early at the forefront of the religious nonprofits’ legal fight against the contraceptive requirement and the government’s accommodations. They have been representing Roman Catholic dioceses around the country and their related entities, such as the University of Notre Dame and the Michigan Catholic Conference.

When the high court opened its 2014-15 term last October, the justices faced seven same-sex marriage petitions from states, all of which had lost in the lower appellate courts. As with those petitions, there is no circuit split yet on the religious nonprofits’ claims. Five courts have rejected them: the Third, Fifth, Seventh, Tenth and D.C. circuits.

The high court last fall rejected the seven marriage petitions, but granted review in four new ones after the Sixth Circuit created a circuit split.

Becket Fund senior counsel Mark Rienzi said he does not believe the lack of a circuit split will deter the justices from taking on the religious nonprofits’ claims. Unlike the marriage-equality cases last fall, he noted, the high court on three occasions granted extraordinary relief under the All Writs Act to religious nonprofits pending their appeals. The justices also vacated and remanded rulings in the Notre Dame and Michigan Catholic Conference cases to be reconsidered in light of the Hobby Lobby decision.

Each time, he added, the government unsuccessfully argued against extraordinary relief because of the lack of a circuit split and how its arguments were prevailing in the courts below.

“I think the court is treating this as particularly special—at least I hope they are,” Rienzi said. “I would prefer to have a circuit split but, given how they reached out several times now, it seems unlikely they’re going to turn their backs on the Little Sisters.”

Little Sisters of the Poor v. Burwell from the Tenth Circuit was filed Thursday by Clement and the Becket Fund. The petition contends, in claims similar to those raised in the other four petitions, that the government’s opt-out procedure for religious nonprofits makes them complicit in providing contraceptive coverage in violation of the Religious Freedom Restoration Act. It also argues that the accommodation discriminates among religious organizations in violation of the First Amendment religion clauses.

The other four pending petitions are:

Houston Baptist University v. Burwell (Clement, Fifth Circuit)

Roman Catholic Archbishop of Washington v. Burwell (Francisco, D.C. Circuit)

Priests for Life v. U.S. Dept. of Health and Human Services (Muise, D.C. Circuit)

Zubik v. Burwell (Pohl, Third Circuit)

The University of Notre Dame, which twice has lost its case before a Seventh Circuit panel, has sought en banc review before the full circuit court. A Seventh Circuit panel on July 1 ruled against Wheaton College, represented by Rienzi, who said no decision has been made yet on any additional steps by the college.

IMAGE: Sister Loraine Marie Maguire, of Little Sisters of the Poor, speaks to members of the media after attending a hearing in the 10th U.S. Circuit Court of Appeals, in Denver, Colo., Monday, Dec. 8, 2014.

Photo: Brennan Linsley/AP

For more on this story go to: http://www.nationallawjournal.com/id=1202732887202/ContraceptiveCoverage-Mandate-Foes-Flock-to-Supreme-Court#ixzz3gowAg83d