It’s Gay Month at the 9th Circuit

Chris Geidner, the excellent lawyer-blogger over at MetroWeekly,com, seems to have an inside channel into the 9th Circuit.  At any rate, every day he seems to be breaking some new development on an LGBT-related case from that very busy federal appeals court.  The latest is a demand by the court that the Obama Administration explain its position in a pending appeal involving a challenge by a criminal defendant to the prosecution's use of a peremptory challenge to keep a lesbian off his jury.

A few days before Attorney General Eric Holder announced on February 23 that the Administration had concluded that Section 3 of DOMA was unconstitutional because laws that discriminate based on sexual orientation are subject to heightened scrutiny under Equal Protection doctrine and Section 3 could not be justified at that level of judicial review, DOJ filed a brief in U.S. v. Osazuwa, No. 10-50109, a criminal appeal out of the Central District of California.  The appellant-defendant, Daniel Osazuwa, convicted of assaulting a prison guard, was appealing his conviction, arguing among other things that the fairness of his trial was compromised by the prosecutor's use of a peremptory challenge to keep a lesbian off the jury.  The particular potential juror's responses during voir dire indicated that she was a lesbian, due to references to her former same-sex partner in response to a question whether she was married or single.  The defendant is a gay man, and his homosexuality was an element of his defense to the charge and likely therefore to play a role in the case.  At the end of voir dire, the prosecutor sought to use a peremptory challenge to eliminate this juror.  Osazuwa's defense counsel sought an explanation, in light of the potential gay issue, and the prosecutor provided an explanation that satisfied the trial judge, based on other factors.  In the appeal pending before the 9th Circuit, Osazuwa claims that the peremptory strike violated his right to an impartial jury by eliminating a juror based on her sexual orientation.

In its brief, DOJ argued that there were sufficient other grounds to justify striking the juror, but in the alternative argued that the precedent of Batson, under which peremptories may not be used to eliminate jurors on discriminatory grounds, does not apply here.  Past cases suggest that the Batson precedent, involving race-based peremptories, only applies to the use of peremptories based on classifications that receive heightened scrutiny under Equal Protection doctrine.  The DOJ brief, filed February 17, argued that therefore Batson could not be invoked in this case because sexual orientation is not such a classification.

But, just a week later, DOJ announced that it regarded sexual orientation as a classification invoking heightened scrutiny.  Presumably Osazuwa or his counsel alerted the court to this contradiction.  On July 6, the Clerk of the Court, Molly C. Dwyer, issued an Order to DOJ, directing the government to file a "supplemental brief of no longer than ten pages, addressing whether it adheres to the position that classifications on the basis of sexual orientation do not warrant heightened scrutiny under the Equal Protection Clause."    Certainly, the February 17 brief filed in the Osazuwa case conflicts with A.G. Holder's February 23 statement, and perhaps more pointedly, with the brief DOJ filed on July 1 in the Golinski case, forcefully arguing that Section 3 of DOMA, which mandates discrimination against samae-sex married couples by the federal government, is unconstitutional under heightened scrutiny.

Commentators have reacted to the July 1 brief as potentially marking an important turning point in the development of equal protection doctrine on gay rights, as the federal government was arguing, for the first time in court, that policies that discriminate based on sexual orientation may not stand without significant non-discriminatory justification.  Now the rubber meets the road.  Will DOJ be consistent in this view in them myriad of cases where sexual orientation issues may arise?  It would be a welcome concession for the Justice Department to say that Batson applies to attempts by prosecutors to keep gay people off criminal juries. 

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