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


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 Sisolak’s 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 A new directive has superseded that one, but, according to the church, still treats places of worship less well than their secular counterparts.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 Newsom’s “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 prosecution’s case-in-chief, such as evidence of a defendant’s 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 defendant’s right “to be confronted with the witnesses against him.”

In Darrell Hemphill’s 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 suspect’s nightstand hours after the shooting. In response, the prosecution introduced that other suspect’s 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 statement’s admission violated the Sixth Amendment.

These and other petitions of the week are below:

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

Gannett Co. v. Quatrone
Issue: 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. Inc. v. Rittmann
Issue: Whether the Federal Arbitration Act’s exemption for classes of workers engaged in foreign or interstate commerce prevents the act’s 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 York
Issue: 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. Sisolak
Issues: (1) Whether Nevada Governor Steve Sisolak’s 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 governor’s favoring of secular over religious gatherings violates the free speech and assembly clauses.

LSP Transmission Holdings, LLC v. Sieben
Issue: 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 Children’s Medical Center v. T.L.
Issue: 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. Scalia
Issues: (1) Whether the Supreme Court’s 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. Newsom
Issues: (1) Whether California Governor Gavin Newsom’s lockdown orders and reopening restrictions under the “Blueprint” framework, placing strict limitations, including closures, on all places of worship in California, violates South Bay’s 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 whether Jacobson v. Massachusetts imposes extra limitations to the Supreme Court’s established line of free-exercise jurisprudence during a pandemic.

Posted in Torres v. Texas Department of Public Safety, Gannett Co. v. Quatrone, Inc. v. Rittmann, Hemphill v. New York, Calvary Chapel Dayton Valley v. Sisolak, LSP Transmission Holdings, LLC v. Sieben, Cook Children’s 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),

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