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A Q&A with Scott Barclay on Pennsylvania and Marriage Equality

May 21, 2014


On May 20, 2014, a federal judge overturned Pennsylvania’s ban on same-sex marriage, making the Commonwealth the 19th state to legalize same-sex marriage. We caught up with Political Science Professor Scott Barclay, PhD, to learn more about the decision.

So what exactly happened?

On May 20, 2014, the United States District Court (for the Middle District of Pennsylvania) issued an opinion in Whitewood v. Wolf. Relying on the due process and equal protection clauses in the U.S. Constitution, the U.S. District Court overturned Pennsylvania’s prior statute that restricted marriage to opposite-sex couples. The judge ruled that marriages between same-sex couples might commence immediately as there no longer existed any legal impediment to such marriages in Pennsylvania.

Is this the final word on same-sex marriage in Pennsylvania?

Yes. Since the current decision is not being appealed by the Commonwealth of Pennsylvania, it will stand as the final determination on the legal validity of same-sex marriages in the states.

Why now?

Three things likely prompted the current events in Pennsylvania.

  1. A recent change in legal language by the country’s highest court as applied to same-sex couples, as well as lesbian and gay individuals more generally. The majority opinion in the 2013 U.S. Supreme Court case of U.S. v Windsor, which challenged one part of the 1996 Federal Defense of Marriage Act, adopted broader, more inclusive language when engaging with the rights to be accorded to same-sex couples. And, it highlighted the ongoing and inappropriate discrimination suffered historically and presently by many lesbian and gay individuals. This language has expanded the way that federal courts approach any state restrictions—either state laws or state constitutional amendments—that directly target same-sex couples or lesbian and gay individuals.

  2. A growing consensus among federal judges on the importance of incorporating same-sex couples into the legal systems in ways that protect their relationship, their children, their property rights and their roles in the community. As the federal judge in the Pennsylvania case noted: “We now join the 12 federal district courts across the country which, when confronted with these inequities in their own states, have concluded that all couples deserve equal dignity in the realm of civil marriage.”

  3. Awareness of an emerging social acceptance of same-sex marriage. In the last year, national public opinion polls routinely place support for marriage equality within the general population at 55% or greater. And, recent polling in Pennsylvania shows that support for marriage equality is at a similar level within the state. Support on this issue is growing at approximately 2% a year as older adults adjust their prior position and younger, more supportive adults (like our own Drexel University undergraduates) transition more fully into positions of social and political power. Courts presumably feel more capable to acting decisively when they find themselves reflecting the position adopted by a majority of the citizens.

What next?

Marriage cases are active in all but two of the states that do not presently permit same-sex marriages. This multitude of cases (approximately 70 separate cases presently) seek to encourage some states to transition from civil unions to marriage and for other states to reverse state constitutional restrictions on such marriages.

With the addition of Pennsylvania, 43% of Americans (or approximately 144 million people) now live in states that have marriage equality.

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 PhD 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.