Lesbian’s Exclusion from Jury Duty Raises Legal Scrutiny Question


When the 9th Circuit Court of Appeals recently issued a ruling upholding U.S. District Judge Virginia Phillips’s worldwide injunction halting enforcement of DADT, the court also issued an order for the government to clarify which level of scrutiny it is applying to sexual orientation following the court having noticed a discrepancy in a recent legal filing.

The conflict relates to the case United States of America v. Daniel Osazuwa, where defendant Osazuwa was convicted of assaulting a federal prison guard while incarcerated for failing to pay restitution associated with a bank fraud conviction.

The particulars of Osazuwa’s case are not really important. What is, however, is that during jury selection the government made a peremptory challenge to remove a juror who was, by all accounts, a lesbian. Osazuwa’s lawyers responded by filing a Batson challenge, that is to say where the removal of an individual who represents a special group is grounds for the trial to be invalidated. The government argued in February of this year that, among other reasons to refuse the challenge, precedent prevents extending Batson to sexual orientation because it is well established that sexual orientation is only given a rational basis test of judicial scrutiny.

Judicial scrutiny relates to the level of review courts apply when laws are challenged so as to weigh government interest verses constitutional rights or principles.  There are three forms of scrutiny. From least to most rigorous they are: rational basis, heightened scrutiny, and strict scrutiny.

Rational basis is the default level of judicial review and would generally result in a ruling upholding the law in question based on the government’s interest.

Strict scrutiny, the most rigorous, applies where there is a so-called “suspect classification” such as in cases dealing with race. This is where a group has ”obvious, immutable, or distinguishing characteristics,” a history of persecution and a political powerlessness. Other groups this standard applies to include national origin, religion, citizenship, gender and sometimes poverty. If strict scrutiny is applied, the government’s interest must be compelling, the law must be narrowly tailored to accomplish its goal and it must use the least restrictive means to do so. Such a level of scrutiny would usually result in a striking down of the laws at question, though that is obviously not always the case.

Intermediate scrutiny, the middle ground between the two, demands the law or policy being challenged furthers an important government interest, a significantly higher obstacle to overcome than rational basis review but not as tough as strict scrutiny.

In the 9th Circuit order issued at the same time as the DADT ruling, the Court points out that in a July court brief the Obama administration argued that sexual orientation should be given a level of intermediate scrutiny. This was in the ongoing case of Golinski v. United States Office of Personnel Management where a federal worker is suing for the partnership rights she is denied because of DOMA. In what was hailed as a “historic” move, the administration argued on Golinski’s behalf that DOMA is indeed unconstitutional. In doing so it restated the belief that heightened scrutiny should apply to sexual orientation because gay people face political powerlessness and a history of persecution.

The 9th Circuit order notes: “In its answering brief in [the Osazuwa case], filed on February 17, 2011, the Government argued that this court was bound by precedents holding that classifications on the basis of sexual orientation are subject only to rational-basis review under the Equal Protection Clause. On July 1, 2011, however, the Government filed a brief before the U.S. District Court for the Northern District of California, arguing [in Golinski v. United States Office of Personnel Management] that “heightened scrutiny, rather than rational basis review, is the appropriate standard of review for classifications based on sexual orientation.””

The Court wants to know which side of this argument the Obama administration is placing itself on: “the Government is directed 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.”

Until now, gay rights has nearly always been subjected to the rational basis test and has suffered under this low level of scrutiny. (A notable exception being the Proposition 8 ruling where federal judge Vaughn Walker concluded California’s gay marriage ban failed even a rational basis test.) The Obama administration’s willingness to apply intermediate scrutiny was an important moment and altered the legal landscape where gay rights cases are concerned. As such, it has been cited in several legal arguments since, such as in the ongoing Proposition 8 case, a case involving a same-sex couple’s joint bankruptcy filing and even in DOJ investigations.

Therefore, while this might seem a matter of abstract legal argument, the interest for LGBT rights proponents cannot be overstated as they pin their hopes on an evolving and more favorable legal landscape.

(H/T to Metro Weekly where you can find relevant court documents.)

Photo used under the Creative Commons Attribution License, with thanks to brainchildvn.


W. C
W. C6 months ago

Thanks for caring.

William C
William C6 months ago

Thank you for the information.

Catt R.
Catt R6 years ago

I am very confused..... can anyone explain...........
1. Why would anyone think it wrong for two law abiding adults to enter into a loving committed relationship? I believe loving committed relationships are a good thing and should be supported.
2. How does someone else having EQUAL rights with you harm you or take your rights away from you? Except for the fact it points out that you actually are not 'better than' ?
3. Can someone show me in either the Bible or the constitution where it says people only have rights if you agree with their every choice in life?

K s Goh
KS Goh7 years ago

Thanks for the article.

Lilithe Magdalene
Lilithe M7 years ago

I second Randall S on this one

Marilyn L.
Marilyn L7 years ago

Thanks for the article.

Julianna D.
Juliana D7 years ago

Thanks for sharing.

Angela R.
Angela R7 years ago

Heres hoping the administration can do the right thing!

John Williams
John Williams7 years ago

Glad to hear the administration MIGHT help the courts raise the bar on defending anti-gay laws.....That is the important news in the story.

Edward Allan
Edward Allan7 years ago

I certainly agree that people should not be excluded from a jury based on their sexual orientation, but I don't see how it could have been relevant in a case like this.

SEPARATELY, however, having served on a couple of juries myself, I do think that it is important that people who are called should serve. Fortunately, Massachusetts has a "one day or one trial" policy, which means in practice that most people get to serve, or at least show up (including state and U.S. Supreme Court judges and Senator Kerry) and decisions as to, potentially, life or life in prison are not made only by people who can't get off or who don't have anything else to do. (In Massachusetts, also, some judges are able to allow jurors to ask questions in writing of witnesses.)