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Scott Barclay, PhD, Discusses Status of Same-Sex Marriage Laws in Light of NJ Ruling

By Scott Barclay, PhD

October 28, 2013


Scott Barclay, PhD

Scott Barclay, PhD

New Jersey Governor Chris Christie chose not to challenge the recent New Jersey Supreme Court decision on marriage equality, legalizing same-sex marriage in the state. A lower court previously ruled in support of introducing same-sex marriage in NJ and Christie had attempted to stay the ruling. The New Jersey Supreme Court said it was unwilling to introduce such a legal stay because, given the quality of the legal arguments offered by the state, it had a very low expectation of prevailing, should the case proceed to a full hearing (which was tentatively scheduled for January 2014). Accordingly, marriage between same-sex couples is allowed in New Jersey as of October 21, 2013.

Prior to this date, New Jersey had civil unions, which took effect in February 2007. After court prompting in the case of Lewis v Harris (first filed in the New Jersey courts in 2002), the New Jersey State Legislature passed a civil union statute in December 2006. This was a less satisfactory solution to recognizing the relationships of lesbian and gay couples—many of whom chose to subsequently marry in other states instead of adopting a civil union in New Jersey.

New Jersey is part of a growing trend of states moving from civil unions (or equivalent) to marriage for same-sex couples. It joins California, Connecticut, New Hampshire, Rhode Island, Vermont and Washington in doing so since 2008. Five states (CO, HI, IL, NV and OR) still have civil unions, but the legislatures in Hawaii and Illinois are presently contemplating introducing marriage for same-sex couples.

At this time, 14 states (CA, CT, DE, IA, MA, ME, MD, MN, NH, NJ, NY, RI, VT and WA) have marriage equality laws.

There are presently 29 states (AL, AK, AZ, AR, CO, FL, GA, KS, ID, KY, LA, MI, MS, MO, NE, NV, NC, ND, OH, OK, OR, SC, SD, TN, TX, UT, VA, WI) that still have state constitutional amendments prohibiting legal recognition of same-sex marriage in that state. These existing constitutional amendments can only be removed by either the passage of a new state constitutional amendment directly on the issue or a decision of a federal or state court that the original state prohibition is unconstitutional.

Pennsylvania does NOT have a state constitutional amendment, but it does have a statute (passed in 1996) restricting marriage to opposite sex couples. Accordingly, the State Legislature could introduce same-sex marriage or civil unions simply by passing a new law, if they wished to do so. Every other state in the Northeast and New England now has marriage equality, as do many states in the Mid-Atlantic. In fact, four of the states contiguous to Pennsylvania recognize marriage equality (MD, DE, NJ, NY) and only two of the states contiguous to Pennsylvania do not (OH and WV).


Scott Barclay, PhD joined Drexel University’s College of Arts and Sciences in the fall of 2011 as the head of the Department of History and Politics. He comes to the College after a two-year rotation at the National Science Foundation as a program director for the Law and Social Science Program. Barclay completed his undergraduate degree in Australia and received his Ph.D. from Northwestern University. He has previously held faculty positions at SUNY Albany, UC Santa Cruz, and the University of Washington. His current research project highlights the many ways that law is invoked, utilized, and reconstituted in the dynamic interaction of courts with social movements and state institutions. His primary example of late is the battle over same-sex marriage in the 50 states. In his research, Barclay considers the complex interplay of political, demographic, cultural, and social movement factors that generate and influence legislative and judicial action around this issue since it first appeared on the national scene in 1971.