Pennsylvania Supreme Court, Pennsylvania State Flag, Justice Statue
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Three of the seven justices currently sitting on the Pennsylvania Supreme Court are up for reelection this November — an election that carries significant weight in today’s charged political climate.
Although judicial candidates and sitting judges cannot promise to rule in any specific way on any matters and must be impartial in their approaches, the court’s five Democrats have a history of protecting the queer community and other marginalized people. But that could change if the three seats are not retained — swinging the court in the opposite direction should conservatives take the bench.
Pennsylvania’s justices serve ten-year terms and can continue to seek reelection without term limits until they reach age 75, when they are forced to retire. Justices Christine Donohue, Kevin Dougherty, and David Wecht — all Democrats — are currently hoping to retain their seats.
“I want to be certain that the seeds that we’ve sown, in terms of extending protections that have always been there but have not been recognized under the Pennsylvania Constitution, continue to be recognized by the court that I sit on,” Donohue said when asked during a forum about her decision to seek retention.
Opponents won’t battle head-to-head for a desired spot. Instead, voters will either approve or deny the sitting justices seeking retention. If any or all of these candidates fail to succeed, Gov. Josh Shapiro will appoint interim replacements. But those replacements must be approved by a two-thirds majority in the state’s Republican-controlled senate before a special election will decide who officially gets each seat. Without Senate approval, those seats would remain vacant until 2027.
Justices Debra Todd and Daniel McCaffery — the court’s other Democrats — are up for retention in 2027 and 2033, respectively. The two Republican justices, Sallie Updyke Mundy and P. Kevin Brobson, won’t face a retention election until 2028 and 2032, respectively.
The state supreme court plays a key role in keeping lower courts and lawyers in check — intervening in lower court decisions when necessary and overseeing the discipline of lawyers for ethics violations. But the supreme court is best known for reviewing appeals — functioning as the group that makes final decisions in a variety of legal proceedings. Controversial or complicated cases often become noteworthy when they set new legal standards.
In a state where the general assembly is often deadlocked in opposition and, therefore, ineffective, Pennsylvania’s supreme court can make truly life-changing decisions that the legislature fails to address.
Such life-changing decisions include those celebrated by LGBTQ+ Pennsylvanians, like a March 2025 decision expanding paths to establish parental rights by adding intent-based parentage. It’s a win that offers stronger protections to all would-be families, but especially to LGBTQ+ parents and parents to-be. No dissenting opinions were published.
The state supreme court is also the reason Pennsylvania won marriage equality, which was achieved in 2014 when a federal judge overturned the state’s ban and Governor Tom Corbett refused to appeal. And unlike Corbett’s decision on marriage equality, appeals seeking to take away LGBTQ rights can and do often happen. Should more conservatives fill the supreme court seats, rulings are more likely to be overturned after reconsideration.
Actions taken at the federal level have already restricted rights for marginalized people and have called other rights into question — leaving many with feelings of uncertainty about their safety, health, and general future. Marriage equality, which is not protected under state law in Pennsylvania, has now been threatened after a decade of federal protections.
The U.S. Supreme Court was recently asked to reconsider its decision in Obergefell v. Hodges — which established a national ruling for marriage equality. If the Obergefell decision is reversed, LGBTQ+ Pennsylvanians could see state changes. While judges made marriage equality legal statewide in 2014, the state statute still defines marriage as “a civil contract by which one man and one woman take each other for husband and wife,” creating a path towards discrimination.
With a Democratic majority in the Pennsylvania Supreme Court, it’s unlikely the state’s supreme court decision would change. Donahue and Dougherty have a long history of supporting LGBTQ+ families, PGN reported during their first campaigns in 2015. They endorsed then-proposed statewide nondiscrimination and hate crime bills. Wecht joined them in openly celebrating marriage equality. He and Donahue also noted the importance of LGBTQ+ specific sensitivity training for judges and court employees.
But if two of the three seats currently held by Donahue, Dougherty, and Wecht are not retained, marriage equality is at risk.
“As judges we must educate ourselves on all LGBT issues, including the insidious nature of crimes directed at members of the LGBT community,” Donohue said at the time. “Within the context of our written decisions, judges can educate members of the bar and the public on the impact of such offenses on members of the LGBT community and society.”
In addition to marriage equality and parental rights, antidiscrimination laws are also at risk should the Supreme Court lose Democratic seats.
A 2025 lawsuit targeting the Pennsylvania Human Relations Commission, which also names Gov. Josh Shapiro as a defendant, aims to reverse changes to the way the organization currently investigates complaints about discrimination involving sexual orientation, gender identity and gender expression. The plaintiffs’ lawyers also believe a ruling in their favor could ban trans girls from competing against cisgender peers in high school sports.
Mundy penned a majority opinion in 2017 which granted SEPTA and potentially other state agencies the right to discriminate based on gender identity and sexual orientation. Wecht concurred, citing the state legislature’s failure to protect LGBTQ+ people with a law, while Donahue and Dougherty dissented.
In a 2020 decision that resulted in a rule banning attorneys from discrimination and harassment on the basis of various factors — including gender identity and expression or sexual orientation, Mundy dissented from the majority opinion but did not publish her reasons. One lawyer noted that before the rule was implemented, she objected 53 times during a single courtroom visit as an opposing lawyer continued to intentionally misgender her client.
Pro-choice activists also worry that a Republican majority in the state’s supreme court could prompt legal challenges to abortion access in Pennsylvania. A law banning the use of state Medicaid benefits for abortions was recently challenged — resulting in a case that might end as a win for Medicaid recipients. In the majority opinion, which requires a lower court to hear the case, Donahue and Wecht concluded that Pennsylvania’s state constitution “secures the fundamental right to reproductive autonomy, which includes a right to decide whether to have an abortion.” Mundy disagreed.
Although past retention elections haven’t typically caused much of a stir, Republicans are targeting Donohue, Dougherty, and Wecht as they seek to remain on the bench. Campaigns to oust the justices have accused them of biased rulings with decisions that expanded access to mail-in ballots during the pandemic and upheld public lockdowns, but their records show that they do not always rule as expected — including in matters with outcomes that favored Republicans.
“Our personal views, our political views, our religious views, are left on the wayside,” Justice Christine Donohue said during the forum on Sept. 8, referring to an oath that requires impartiality. “They have absolutely nothing to do with the manner in which we can decide cases.”
The post Marriage equality, nondiscrimination rights hinge on Pa. Supreme Court election appeared first on Philadelphia Gay News.