How a Fight over Jury Selection Could Advance Gay Rights

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When Daniel Osazuwa, a gay Nigerian immigrant, was put on trial for assault in Southern California, the prosecutor used one of his peremptory challenges to remove a woman from the jury pool. The fact that the prospective juror was a lesbian is the subject of a potentially momentous federal court case. An appeals court is now considering whether removing a juror for being gay violates the Constitution. If the court says it does, it could strike an important blow for the rights of gay people.

Osazuwa was an inmate serving time stemming from a bank-fraud conviction, who was subsequently convicted of assaulting a prison guard. He says he was just trying to embrace the guard, a common greeting in Nigeria, but the guard reacted defensively to him because Osazuwa is gay. The prosecutors argued successfully that it was an assault.

As the Los Angeles Times recently reported, at his trial, federal prosecutors used one of their peremptory challenges to remove a lesbian, identified only as J.T., from the jury. Osazuwa's lawyers argue that J.T. was removed because she is gay. The prosecution denies it, and says it removed her because she said under questioning that she had friends who are Nigerian. In his appeal, Osazuwa says the removal of J.T. violated the Constitution's equal-protection clause, since it was done because she is gay.

There are two kinds of jury challenges. A prospective juror can be challenged "for cause" if he has some kind of a conflict or legal barrier — for example, if he is a friend of the defendant. The challenge of J.T. was peremptory — one of a small number of challenges, which both sides get, for which they do not need to give a reason.

Peremptory challenges give lawyers lots of leeway, but the Supreme Court has long held that the equal-protection clause prevents prosecutors from discriminating against certain groups in jury selection. In the 1986 case Batson v. Kentucky, the court reversed a black man's conviction for burglary after prosecutors used their peremptory challenges to strike all four black prospective jurors. Batson was convicted by an all-white jury.

Over the years, the Supreme Court has extended the "Batson rule" to cover other kinds of discrimination against jurors, including gender and ethnicity. Yet the courts have refused to include other groups. In April, a New York court ruled that there was no constitutional problem with striking hunters from a jury for a case involving hunting.

The San Francisco–based U.S. Court of Appeals for the Ninth Circuit, which heard arguments in Osazuwa's appeal this month, has to decide where gay people fit — are they protected against being excluded from juries or not?

A ruling that gay people are covered would be a major advance in the law. The courts have applied the Batson rule to groups that are eligible for heightened protection under the equal-protection clause, such as women and racial and religious minorities. The Supreme Court has at least so far not given gay people heightened protection under the equal-protection clause, even in cases that have been major victories for gay rights, like the 2003 case striking down Texas' sodomy law.

But that could be about to change. Many legal commentators have long argued that gay people face the same kinds of discrimination as the groups who currently get heightened protection under the equal-protection clause, and that they should have similar protection. In deciding whether a group should qualify, courts look at factors like whether the group has faced sustained discrimination by government and the private sector, and whether it is lacking in political power. Gay people would seem to meet the criteria.

In February, after the Justice Department had conducted a review of the Defense of Marriage Act, the 1996 federal law defining marriage as a legal union between a man and a woman, Attorney General Eric Holder wrote a letter to Congress saying that he and President Barack Obama regard gay people as deserving of heightened protection under the equal-protection clause. Then in July, the Justice Department filed a legal brief challenging the Defense of Marriage Act; in the brief, the government broke new ground, arguing that gays should be accorded heightened protection.

If a group gets heightened protection under the equal-protection clause, it makes it easier for it to challenge laws and policies that disadvantage it. If the courts follow the Obama Administration's lead, gay people might be able to use the equal-protection clause to challenge everything from marriage laws to unequal employee benefits. That means Osazuwa's case could affect far more than who gets to sit on a jury.

Cohen, a former TIME writer and former member of the New York Times editorial board, is a lawyer who teaches at Yale Law School. Case Study, his legal column for, appears every Monday. You can continue the discussion on TIME's Facebook page and on Twitter at @TIME.