HRC Blog

Court to Government: What Standard Applies for Removal of Gay Jurors?

The impact of the Administration’s historic decision to stop defending the Defense of Marriage Act (DOMA) continues to ripple through our nation’s courts. On February 23, 2011, in a six-page letter to House Speaker John Boehner (R-OH), Attorney General Eric Holder explained why he and President Barack Obama had concluded that some level of heightened scrutiny should apply to sexual-orientation classifications and why, under heightened scrutiny, Section 3 of DOMA—which defines marriage as a legal union between a man and a woman for federal purposes—ought to be declared unconstitutional. LGBT advocates have begun citing this decision in a range of court challenges—from DOMA to immigration to “Don’t Ask, Don’t Tell.”

On July 6, 2011, however, the U.S. Court of Appeals for the Ninth Circuit issued an order addressing the impact of the Administration’s decision on a matter not traditionally associated with LGBT advocacy: the jury selection process. This process raises important legal questions about permissible grounds for using peremptory challenges to remove potential jurors. In 1986, the U.S. Supreme Court held in Batson v. Kentucky that a prosecutor could not use his or her peremptory challenges to remove potential jurors from cases based solely on their race; this holding now extends to sex and national-origin classifications. It follows then that a defendant may make a Batson motion to challenge a prosecutor’s reason for removing a potential juror if he or she believes the removal hinged on a prohibited basis.

In February of 2011, Daniel Osazuwa, who was charged with assaulting a prison guard, filed a Batson motion after a prosecutor used a peremptory challenge to strike a lesbian juror. The government opposed Osazuwa’s motion, arguing that, among other things, extending Batson to sexual orientation would violate controlling precedent. The government noted that the Supreme Court has expressly permitted the removal of any potential juror who belongs to a class normally subject to rational-basis review and that both the Ninth Circuit and the Supreme Court have held that rational-basis review applies to sexual-orientation classifications.

Owing to the DOJ’s February 23 decision, and a recent filing in Golinski v. OPM, where the government argued that “heightened scrutiny, rather than rational basis review, is the appropriate standard of review for classifications based on sexual orientation,” the Ninth Circuit ordered the government to explain the difference between its positions in the Osazuwa and Golinski cases. In a supplemental brief no longer than ten pages, which is due by July 20, the government must clarify its position on the appropriate standard of review for sexual-orientation classifications.

Onye Chinwah, McClearly Law Fellow contributed to this post.

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