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This week we highlight cert petitions that ask the Supreme Court to consider, among other things, more First Amendment challenges to pandemic-related restrictions and whether a criminal defendant can open the door to rebuttal testimony that otherwise would violate the Sixth Amendment.

Two petitions from churches bring First Amendment claims against state restrictions related to the coronavirus pandemic. In Calvary Chapel Dayton Valley v. Sisolak, a Nevada church is challenging Gov. Steve Sisolaks series of executive orders limiting church gatherings. For example, one directive subjected casinos, restaurants, indoor amusements parks, bowling alleys, water parks, pools, arcades and more to a 50% fire-code-capacity limit, but limited places of worship to no more than 50 people, whatever their facilities size. A new directive has superseded that one, but, according to the church, still treats places of worship less well than their secular counterparts. In South Bay United Pentecostal Church v. Newsom, a California church brings a petition directly from the district court that challenges Gov. Gavin Newsoms Blueprint for a Safer Economy. Earlier this year, in two separate orders, the Supreme Court declined to grant emergency relief to the Nevada church and the California church while the litigation proceeded in the lower courts. Now the churches are asking the justices to take up the cases on the merits.

Rules of evidence protect criminal defendants from certain types of evidence in the prosecutions case-in-chief, such as evidence of a defendants violent character. However, a defendant who takes the stand and testifies to having a peaceful character opens the door to rebuttal evidence. Hemphill v. New York asks the justices to decide whether a defendant can similarly open the door to rebuttal evidence that was previously inadmissible under the Sixth Amendment, which guarantees a criminal defendants right to be confronted with the witnesses against him.

In Darrell Hemphills trial, defense counsel elicited testimony that police had found a 9 millimeter handgun, the kind of gun that killed a girl in a car passing by a fight, on a different suspects nightstand hours after the shooting. In response, the prosecution introduced that other suspects statement from an earlier plea allocution that he had a .357 revolver with him at the fight, not a 9 millimeter. The Sixth Amendment would normally require the prosecution to produce the other suspect at trial so that defense counsel could cross-examine him. However, the trial court let in the statement because Hemphill had opened the door to this evidence by creating the impression that the other suspect had the 9 millimeter. Arguing that lower courts are split on whether defendants can forfeit confrontation rights in this way, Hemphill asks the justices to review the New York Court of Appeals decision affirming the trial court and to rule that the statements admission violated the Sixth Amendment.

These and otherpetitions of the weekare below:

Torres v. Texas Department of Public Safety20-603Issue: Whether Congress has the power to authorize suits against nonconsenting states pursuant to its constitutional war powers.

Gannett Co. v. Quatrone20-609Issue: Whether a plaintiff adequately pleads breach of the duties of prudence and diversification solely by alleging that fiduciaries permitted participants in a defined contribution plan to choose, from an adequately diversified menu of investment options, to invest in an undiversified single-stock fund.

Amazon.com Inc. v. Rittmann20-622Issue: Whether the Federal Arbitration Acts exemption for classes of workers engaged in foreign or interstate commerce prevents the acts application to local transportation workers who, as a class, are not engaged to transport goods or passengers across state or national boundaries.

Hemphill v. New York20-637Issue: Whether, or under what circumstances, a criminal defendant, whose argumentation or introduction of evidence at trial opens the door to the admission of responsive evidence that would otherwise be barred by the rules of evidence, also forfeits his right to exclude evidence otherwise barred by the confrontation clause.

Calvary Chapel Dayton Valley v. Sisolak20-639Issues: (1) Whether Nevada Governor Steve Sisolaks favoring of secular over religious gatherings for example, under Directive 021, casinos, restaurants, indoor amusements parks, bowling alleys, water parks, pools, arcades and more are subject to a 50-percent fire-code-capacity limit, but places of worship are limited to no more than 50 people, whatever their facilities size violates the free exercise clause; and (2) whether the governors favoring of secular over religious gatherings violates the free speech and assembly clauses.

LSP Transmission Holdings, LLC v. Sieben20-641Issue: Whether a state law that grants an express preference to entities with an existing in-state presence to build facilities serving a distinctly interstate market discriminates against interstate commerce, notwithstanding that a few of the preferred in-state incumbents are headquartered elsewhere.

Cook Childrens Medical Center v. T.L.20-651Issue: Whether, despite the lack of any state involvement, participation, coercion, input or control of any kind, a private hospital is nevertheless a state actor because state law creates a safe harbor for those who conduct a private internal review to determine private medical care in a private facility.

Employer Solutions Staffing Group, LLC v. Scalia20-660Issues: (1) Whether the Supreme Courts willfulness standard, which requires a showing that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute, may be satisfied merely by a showing that a non-compliant employer was on notice of its general requirements under the Fair Labor Standards Act but had no actual knowledge of or reason to believe that it was not complying with any requirement of the FLSA; (2) whether the Employer Solutions Staffing Group was liable for overtime wages when there was no evidence that they knew or should have known that overtime wages were not properly being paid by a low-level employee; and (3) whether the Employer Solutions Staffing Group may seek contribution under the FLSA from other joint-employers for joint and several liability for an overtime wage award.

South Bay United Pentecostal Church v. Newsom20-746Issues: (1) Whether California Governor Gavin Newsoms lockdown orders and reopening restrictions under the Blueprint framework, placing strict limitations, including closures, on all places of worship in California, violates South Bays First Amendment right to free exercise of religion; and (2) whether strict scrutiny is the proper standard of review for challenges to state and county restrictions upon free-exercise-of-religion rights during a pandemic, or whetherJacobson v. Massachusettsimposes extra limitations to the Supreme Courts established line of free-exercise jurisprudence during a pandemic.

Posted in Torres v. Texas Department of Public Safety, Gannett Co. v. Quatrone, Amazon.com Inc. v. Rittmann, Hemphill v. New York, Calvary Chapel Dayton Valley v. Sisolak, LSP Transmission Holdings, LLC v. Sieben, Cook Childrens Medical Center v. T.L., Employer Solutions Staffing Group, LLC v. Scalia, South Bay United Pentecostal Church v. Newsom, Featured, Cases in the Pipeline

Recommended Citation: Andrew Hamm, Petitions of the week: Re-opening church doors and opening evidentiary doors, SCOTUSblog (Dec. 11, 2020, 4:45 PM), https://www.scotusblog.com/2020/12/petitions-of-the-week-re-opening-church-doors-and-opening-evidentiary-doors/

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Petitions of the week: Re-opening church doors and opening evidentiary doors - SCOTUSblog

In July, by a vote of 5-4, the Supreme Court rejected the petition of a Nevada church seeking to overturn the governors 50-person limit on attendance at religious services. Chief Justice Roberts joined the four liberal justices Ginsburg, Breyer, Kagan and Sotomayor. Justice Alito dissented on the grounds that the governors order violated the First Amendment right to worship by allowing more people to gamble in casinos than to pray in church.

This was the second case dealing with state-imposed limitations on church service attendance during the COVID-19 pandemic. The first was a California challenge to Gov. Gavin Newsoms order limiting houses of worship to 25 percent of capacity but not more than 100 attendees. The lineup of justices was the same, with the chief justice writing for the five-member majority. He explained that the California restrictions on church attendance were equivalent to those on comparable secular gatherings such as lectures, concerts and sports events. As such, he wrote, they were consistent with religious freedom under the First Amendment.

The chief justice stressed that when it comes to public health, an unelected federal judiciary lacks the necessary scientific expertise and should not second-guess those who are responsible for protecting the public. He cited a 1905 case called Jacobson v. Massachusetts, where the court upheld a Cambridge, Mass., ordinance requiring smallpox vaccinations.

In his dissent, Justice Kavanaugh asked, Why can someone safely walk down a grocery store aisle but not a pew, or safely interact with a brave deliverywoman but not with a stoic minister? He suggested that the state could have taken other means, for example requiring social distancing, or imposing reasonable occupancy caps across the board.

Policy disagreements can rarely be solved by asking questions, and that is especially true here. When I walk through the grocery store, I keep on going and exit as fast as I can. If I enter a church or synagogue, I dont walk down a pew, I sit on it for an extended period of time. I have no idea what my encounters with a brave delivery person have to do with interactions with a stoic clergyman. More often than not, UPS or FedEx just leaves the package at the door.

Justice Alito didnt take those decisions lying down. He devoted much of his Nov. 12, 2020, Federalist Society speech to his concern that religious liberty is fast becoming a disfavored right. In language sounding a lot like his late colleague, Justice Scalia, he pointed out that you will not find a craps clause or a blackjack clause or a slot machine clause in the First Amendment. And Alito criticized Robertss reliance on the Jacobson case. Im all in favor of preventing dangerous things from issuing out of Cambridge and infecting the rest of the country, he said. It would be good if what originates in Cambridge stayed in Cambridge.

Justice Ginsburg, who voted with the majority in both the Nevada and California cases, died on Sept. 18, 2020, exactly halfway between the Nevada ruling and the New York case that was to come in late November. During the interim, on Oct. 27, 2020, Amy Coney Barrett was sworn in as Ginsburgs successor.

The Nevada and California cases are so yesterday, and so is Chief Justice Roberts. On Nov. 25, 2020, in a case called Roman Catholic Diocese of Brooklyn v. Andrew M. Cuomo, Governor, the court meaning a majority of five agreed with the Roman Catholic Diocese of Brooklyn and Agudath Israel of America, an organization of Haredi Orthodox Jews featured in last years Netflix series Unorthodox. The court enjoined the enforcement of Gov. Cuomos 10- and 25-person occupancy limits on houses of worship located in red and orange zones.

Justice Gorsuch, now in the majority, expressed his concern (among others) that the governors order would cause irreparable harm to Orthodox Jewish women. Orthodox Judaism requires 10 men for a minyan (the quorum for Jewish public worship), he explained, so those women might be unable to attend Shabbat (Sabbath) services. He then had what is likely the last word: Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.

The constitutional issue raised by these state-imposed church attendance quotas is what lawyers call a close question on which reasonable people can take either side. But while slogans such as no blackjack clause and no sabbatical may make good reading, they dont necessarily make good law, or for that matter good epidemiology. To be sure, the New York facts are not identical to the Nevada or California facts, but the differences are not enough to account for a different outcome.

And there is something unseemly about the Supreme Court going one way in the spring and the opposite way in the fall. During a public health crisis, when so much responsibility rests on the shoulders of governors and local health officials, there is something to be said for stability in the law.

The reason for this flip-flop isnt hard to find, and Justice Alito need not worry that the constitutional right to worship will be disfavored. The game has changed, and Amy Coney Barrett, a product not of Cambridge but of Notre Dame, Ind., is the game-changer.

Read more from the original source:
Religion and the Supreme Court during the pandemic - The Keene Sentinel

Beth Treffeisen|Cape Cod Times

SANDWICH In the early afternoon, before Sandwich Special Town meeting was set to begin at the high school, members of the environmental group Sustainable Practices were asked by a police officer to move their signs and displays so they were 150 feet from the school entrance.

The request to movewas made by Selectman Robert George, becausehe thought it was the law.

However, the 150-foot law only applies to polling places, not town meetings, according to the Secretary of State's website and the Sandwich TownClerk.

After learning that members of Sustainable Practices were wrongly moved before last month's meeting, members Mary Cote and Jacob Swenson demandedGeorgeapologize for his action, saying his failure to abideby the law isgroundsforhim to resign or be removed from his elected position.

What he did to me was a blatant abuse of power, Mary Cote wrote in a letter to the Selectmen. He took away my right.

Cote and other members of the group filed a complaint about the incident with the Attorney Generals office.

SUBSCRIBE TO THE TIMES

Town Clerk Taylor White was made aware of the situation after the special town meeting ended.He said he thinks Georgemisunderstood the law.

Typically before a town meeting, there is a gauntlet of people made up of political candidates and groups vying for the voters' attention standing near the entrance of the meeting venue.

In this case, about150 people attended the Nov. 14 special town meeting and members from the Sustainable Practices were the only group outside, other than a bake sale that was going on, Taylor said.

There is a gentlemens agreementunder whichpeople have been asked to make enough space for people to enter the meeting without being delayed, White said.

At the Board of Selectmen meeting Thursday, George saidhe might have had the wrong information and will check on the law.

You see it time and time again that people just jam the front of the school at town meeting, George said during the meeting. I will find out if I was misled and if I was I will publicly apologize to them.

As of Friday, Cote still had not received an apology from George.

Board of Selectmen members said they will ask town counsel for further clarification.

Selectmen David Sampson said he didnt think the folks who stand outside town meeting are changing the minds of the voters.

I think they are taking the opportunity to get their message out, Sampson said.Ive never seen anyone outside obstructing the access, which is really the most important thing.

Voters at the special town meeting indefinitely postponed the petition article put forth by Sustainable Practices to ban commercial plastic water bottles. The group plans to bring the petition back for a vote at the spring town meeting. Similar articles have passed in eight other Cape towns.

The fact that it was deferred and not voted down, shows that people know it is the right thing to do but for whatever reason they were not ready yet, Cote said Friday.

A seasoned environmental activist, Cote said she was unsure if the pressure to move her group's display further from the entrance prevented them from getting their message across to voters.

Moving the group may have delegitimized Sustainable Practices cause and made it more difficult for them to talk to voters, Swenson wrote in an email to the Select Board.

Bobby George was wrong to all of this, Swenson wrote. He violated the first amendment rights of these citizens and blatantly abused his power.

Contact Beth Treffeisen at btreffeisen@capecodonline.com. Follow her on Twitter @BTreffeisenCCT

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Environmental group wrongly asked to move 150 feet away from town meeting entrance - Cape Cod Times

In the midst of COVID-19, our national turmoil and the positive Black Lives Matter movement, Palo Alto has become embroiled in the issue of access to our beloved Foothills Park. As two City Council members who have been immersed in the details, we wanted to share what we've learned on the issue so that people are informed about what is actually at stake when asked to sign the petition that is now circulating for a referendum.

Some view Foothills Park through a racial lens, and indeed some of Palo Alto's history is similar to that of cities around us and across the country with the unconscionable race-based discrimination of those times. But in other important ways Palo Alto has been racially progressive over the decades, including being one of the very few Bay Area cities to oppose the rent discrimination of CA 1964 Prop 14; forming Midpen Citizens for Fair Housing, the first fair housing agency in the country; and honoring Joseph Eichler, who required explicit inclusionary agreements at a time when few others did.

Yet while the historical perspective is important, the legal arguments raised with Foothills Park in a lawsuit brought by ACLU and NAACP are based not on racial equity, but instead on the U.S. Constitution's First Amendment.

The decision of the ACLU and NAACP to emphasize a racial storyline, which obscures the actual substance of their suit, has triggered two unfortunate reactions:

First, while it rallied their supporters, the campaign also rallied many other people who simply don't see Foothills Park as a segregationist issue and who feel insulted at being told they are racist. As we've seen across our nation, this kind of it-rallies-both-sides polarization hurts our capacity for principled and thoughtful discourse, even among reasonable people.

Second, the Palo Alto community among the most educated in the nation is astute enough to doubt that a race-based legal case for Foothills Park admission would stick. Because the plaintiffs aggressively marketed their case on this basis, and not on the more substantial First Amendment constitutional aspect, many Palo Altans wrongly view the lawsuit as frivolous.

Both these things have helped spur the petition.

Let us therefore try to clarify the substance of the lawsuit.

The legal claim is that Foothills Park is subject to our federal First Amendment rights to free speech and assembly, overriding any Palo Alto ordinance. The argument is that even though the city owns the land, public parks, like public sidewalks, are special common areas; and unlike private citizens' property or even many other public facilities, we can't ban nonresidents from gathering there.

Although we have the right to manage the park, limit the number of visitors, charge fees and so forth, the suit asserts we can not discriminate on the basis of residence in allowing access. So while each case is unique, this issue would be the deciding factor; not race or other social-justice concerns.

The council discusses the details of lawsuits in closed session with legal counsel, including outside specialist counsel, in order to protect our ability to litigate without disclosing strategy to the opposing side. This is an important protection for residents, but is understandably frustrating to all involved.

We both initially voted for the pilot program and for placing the long-term question on the 2022 ballot for voters to decide. After we understood the First Amendment nature of the lawsuit, we both changed our view and voted for the settlement.

If the petition organizers collect the 2,581 signatures needed, the settlement will be voided and the lawsuit proceeds. If the city wins the litigation, then we can do what we want.

If the city loses the litigation, then Palo Alto's "residents-only" policy, including the pilot project, is struck down. A referendum becomes meaningless; the park will be opened on terms determined in a federal court. The current settlement, which waives us paying the ACLU's legal fees and allows a few things like residents' priority access to facilities like campgrounds, would not apply.

In this outcome, the city may also be required to pay high plaintiffs' attorneys' costs. The ACLU and its private firm partner are currently working pro bono, but if they win the lawsuit, they will seek to recover their full legal expenses from Palo Alto. Those expenses would divert funds from already pandemic-challenged programs like the Children's Theater, Youth Community Services, public safety, and ironically, parks.

Those considering signing the petition should consider two important factors:

First, the petition does NOT actually give residents control over Foothills Park access via a referendum; instead it revives the First Amendment lawsuit, which the city must first win before any referendum means anything. The petition is a high-stakes bet on that lawsuit, whose odds depend not on social justice or transparency, but on details of Constitutional First Amendment law.

Second, the decision to place this bet will be made not by majority vote but by the 4% of residents (2,500 out of 67,000) who sign the petition. Those 4% will irreversibly commit the other 96% of Palo Altans to this course. This places a significant responsibility on the 4%, and signers should understand the financial risk here.

The city has posted a sizable FAQ on its web site with answers to a number of questions, and the full terms of the settlement agreement are here.

Finally, let us end with a plea on a different but urgent matter. The COVID-19 situation is at a critical juncture. While we've all grown weary of it, we must renew our efforts to isolate in order to slow the transmission rate. Our health care system is at risk of being overwhelmed. Please do all you can to support the county and state directives now in effect.

Go here to see the original:
Opinion: What you need to know about the Foothills Park referendum - Palo Alto Online

Murdock, a town of fewer than 300 people, passed a conditional permit Wednesday to allow use of a church building bought by the Asatru Folk Assembly.

The Asatru Folk Assembly describes Asatru as "the religion by which the Ethnic European Folk have traditionally related to the Divine and to the world around them." The website says that it is part of the "great Aryan religiosity."

City leaders said the passage of the permit was due to First Amendment rights.

"We as the leaders of the City of Murdock want it to be known that the City of Murdock condemns racism in all of its forms: Conscious, Unconscious, any place, any time, now and in the future," Mayor Craig Kavanagh said during Wednesday's meeting. "We are committed to building a community that promotes equal justice and opportunity to every single person regardless of their race."

"The Conditional Use Permit for the AFA is very controversial if you want to make it about religious beliefs, but what is failing to get mentioned is this vote was not about beliefs," Kavanagh said in a statement sent to CNN.

"This vote was about a zoning permit to let an old abandoned church be used for exactly what it was built for "a church." Now I understand the beliefs of who will be using the church are much different from one another, but that is every person's 1st amendment right according to the Constitution."

"To the City Council of Murdock, thank you. We know there was a lot of pressure on you to deny us our permit and right to worship," the post said. "We appreciate your fairness and this opportunity."

Kavanagh's statement said the topic was a main topic of discussion at council meetings as well as in the community over the past few months. A public meeting was held in October and while the vote was originally scheduled in November, it was postponed so the mayor could bring in the city attorney and explain the legal ramifications, it said.

"I can assure you that nobody thought we would have to deal with a topic like this in our little town, but nothing is predictable in the year 2020, it seems," he said.

The AFA includes in its statement of ethics the following:

"We in Asatru support strong, healthy white family relationships. We want our children to grow up to be mothers and fathers to white children of their own. We believe that those activities and behaviors supportive of the white family should be encouraged while those activities and behaviors destructive of the white family are to be discouraged."

Kavanagh's statement went on to say that the city was advised to pass the permit, saying the circumstances could be a "substantial burden."

"This town is still the same town it was before this CUP approval took place," Kavanagh said. "The vote last night had nothing to do with beliefs or race, it was strictly a zoning issue the council felt like it needed to legally abide by or it would have caused a substantial burden to the town. We as a council still want what is best for the City of Murdock and will always do so."

See the article here:
City approves conditional permit to allow use of church building by a Whites-only group - CNN