When gay Nigerian inmate Daniel Osazuwa found himself in a Pasadena court for assaulting a prison guard, the prosecution struck a lesbian woman from his jury. The prosecutors claim they removed her because she has Nigerian friends and could be biased in favor of Nigerians. But Osazuwa’s public defenders say prosecutors removed her for her sexual identity and that the trial judge erroneously accepted the prosecution’s reasoning. Now Osazuwa’s defense has appealed the case to the Clinton and Carter-appointed judges sitting on the Ninth Circuit Federal Court and asked them to decide whether lawyers should be allow to dismiss jurors because of their sexual orientation. If the federal court says no, it could spell a monumental civil rights victory for LGBTs.
The LA Times explains:
For more than a quarter of a century, since the Supreme Court decided a case called Batson vs. Kentucky, it has been against the law for trial attorneys to dismiss potential jurors on the basis of their race — a tactic once common among prosecutors trying to keep those who might be sympathetic to a minority defendant off the jury.
Subsequent rulings on Batson challenges have added gender and religion to protected categories, but the sole effort to get the courts to add sexual orientation failed in a Midwestern case that reached the U.S. 8th Circuit Court of Appeals six years ago.
More recent Supreme Court rulings have overturned the laws on which the 8th Circuit ruling was anchored, giving gay rights advocates hope that the Osazuwa challenge could secure equal protection for sexual orientation, said Jon W. Davidson, legal director for the national Lambda Legal organization that fights court battles on behalf of gays and lesbians.
Assistant U.S. Atty. Mark R. Yohalem has stood by the prosecution’s claim that they removed the juror for her Nigerian-sympathies rather than her sexual identity and has added that, “that lower courts are supposed to refrain from making rulings on constitutional questions that are the domain of the U.S. Supreme Court.”
But the court’s ruling could set off a national effect resounding with the Department of Justice’s July brief stating that courts should regard LGBTs with heightened scrutiny because of the long history of institutionalized discrimination against them.
You see, if the judges find that the exclusion of LGBTs from a jury goes against the Constitution’s Equal Protection Clause, it could positively affect current cases against the Defense of Marriage Act and in favor of an Employee Non-Discrimination Act that current say that discriminating against queers is totally OK.
If a federal court says it’s not OK, then all three branches of government will have no choice but to react, possibly pushing forth LGBT protections much sooner than anybody thought.
Image still via Note: woman pictured is not the lesbian juror referred to in this case.