An Interview with Evan Wolfson, Founder and President of Freedom to Marry
Evan Wolfson was the founder and president of Freedom to Marry, the organization which spearheaded the national strategy for winning marriage equality for same-sex couples in the United States. A graduate of Yale College (Silliman, ’78) and Harvard Law School, Wolfson served as co-counsel in the 1993 Hawaii marriage case that helped initiate the movement for the freedom to marry and has fought for gay and transgender rights in many other cases. In 2004, Time named him one of the “100 Most Influential People in the World.” Wolfson is a Distinguished Visitor from Practice at Georgetown Law Center, a Distinguished Practitioner in Grand Strategy at Yale, and a Senior Counsel at the multinational law firm Dentons.
The Politic: First off, I’m interested in how you decided that you wanted to go into law, and if you knew when you were starting law school that the LGBT rights movement was the direction that you wanted to take that in.
Evan Wolfson: So growing up I was always the kind of kid to whom everybody would say “oh, you’ll be a great lawyer,” you know, because I liked to argue and I liked to talk, and was very passionate about politics and history and making a difference, and I imagined at that time that I was going to go into politics and government. So being a lawyer was just sort of the foreordained path that I always had in mind and was always interested in.
As I got older and got more engaged, I always still wanted to do it, but law, to me, became really more not so much what I wanted to be, but what I wanted to do. In other words, it wasn’t about the thrill of being a lawyer; rather, law was a means to making a difference, to accomplishing something. And I learned as I went further along that it’s actually a very flexible way of contributing. There are many ways as a lawyer you can make a difference. You contribute and use your skills, and your training, and your credibility as a lawyer, even beyond the sort of classic things that lawyers do. So it was always what I intended to do.
I never, as a kid or even when I went into law school, really thought of going to law school as being related to my being gay or as being a pathway toward advancing gay rights or being part of the movement. That was actually a connection I made during law school, not going into law school.
At the time when you wrote your thesis about the freedom to marry, it was considered a very unrealistic goal for the LGBT rights movement. How did you decide that that was the goal that you wanted to pursue, instead of perhaps other things that people might of thought of, or other ways to advance the movement?
So in the paper, and ever thereafter, I actually argued that marriage was something that we should work for both as a goal and as a strategy. For me, marriage was not only a goal, though it was a very important one, it was also a strategy. The core arguments of the paper and definitely the core attributes of my work thereafter were to argue, number one, that we should have the freedom to marry, we should fight for the freedom to marry, it was important, there was a pathway for winning it, that we could make the constitutional argument, we could succeed in getting this, and to be denied it was to be denied something important, [and] therefore we needed to change that.
But I also argued that by fighting for the freedom to marry, we would be claiming a vocabulary. We would be claiming a deeper understanding of who gay people are that would be an engine of transformation, that would advance us not only in winning marriage, but across the range of gay and ultimately transgender causes. So gay marriage was both a goal and a strategy. And I continued to believe that afterwards, and I believe that now events have proven that to be true. Whether or not you particularly prioritized winning marriage as a goal, vis-à-vis other things we care about, it is clear that winning marriage has brought more support, more allies, more political and legal advances, more cultural acceptance, as well as winning something major that has brought tangible and intangible protections and security to millions and millions of people. So I feel comfortable with that choice.
I should say, though, that there was never any time when I only worked on marriage. And there certainly was no time where everybody in the movement all agreed on anything, whether prioritizing working on marriage or anything else. And my view of activism is, I don’t expect everyone to agree, we don’t have to all agree. My rule of activism is, you don’t need every—you need enough. So it’s not about “everybody has to agree,” and everybody has to drop what they’re doing over here and go to something else. What you do need to do is rally, marshal, inspire, empower a critical mass of what’s needed in order to win: the people, the organizations, the allies, et cetera. So it’s not really that everyone who’s gay or transgender has to agree we’re going to do marriage, or we’re going to do safe schools, or we’re going to do HIV, or we’re going to do transgender rights—we don’t all have to agree on that. We can all support and help each other moving forward in many ways, but to succeed, you need to pick something, drive towards it, and marshal a critical mass behind it.
So when you were working on advancing marriage equality, did you feel like you were just leading one part of the movement?
Did you also feel like if there wasn’t agreement, there was pushback? Or was it mostly just prioritizing other things?
Well there was pushback and disagreement, not everybody took my benign view of “we don’t all have to agree,” some people were pretty adamant in saying, “no, we do all have to agree,” and “you’re wrong, I’m right.” But by and large, I believe in allowing for the differences that I described. Even I myself, who obviously worked significantly on marriage and focused on marriage as my career went on, worked on the range of gay, and HIV, and to a lesser degree, but some, transgender protections as well. I argued the Boy Scouts case in front of the Supreme Court, I worked on winning partnership benefits, on fighting custody and visitation restrictions, on challenging military discrimination, [and] later on transgender questions as well, all while championing and arguing for and working for the freedom to marry. So, I don’t see it as an either-or, and certainly our movement did not see it as an either-or. There never was a time where everybody agreed on anything, and that’s fine.
I distinguish between a campaign and a movement. Freedom to Marry, the organization I created to drive a strategy and leverage a movement, was part of the broader gay and transgender movement, and also helped inspire and generate an overlapping, broader movement in support of the freedom to marry that included some of the movement organizations, but also brought in new allies and partners and others, and led that movement until success. Then I closed Freedom to Marry, the campaign, but am still part of the broader movement because we have many goals and many priorities and we have much work to do going forward.
Leading into that, what do you think are some of the main challenges that we still face today? What are some of the next steps and some of the next goals to try and achieve?
Well the overriding challenge for gay and transgender people, and gay and transgender organizations and our allies and partners, is, I would say, the same overriding goal for any American who is awake—let alone woke—which is that we need to get our country back on track. Our country is in a dire moment facing existential challenges from the Trump-Pence regime and the foreign interference in our election which installed that regime and continues to subvert our democracy. And our political system is facing significant challenges of dysfunction, and lack of representation, and lack of responsiveness, and corrosive division, and so on. So more important than any one single anything is defending our constitution, reinvigorating and restoring our republic, and getting the country back on track.
The more we work in solidarity with the many other communities and values under assault—immigrants, people of color, women, and gay and transgender people—the more we will be successful in defending gay and transgender advances, as well as the whole. So top priority is getting the country back on track.
So everyone reading this had better make sure, if allowed, he or she is registered to vote, has gotten all his or her friends to register and vote, and turn out, not only here at Yale and in the New Haven community, but back home. We need to really all focus on making sure the midterm elections take a first step toward protecting our democracy and the bedrock. That’s how we’re going to defend gay people’s advances, transgender people’s advances, women’s advances, immigrants, and so on.
I’m also very proud that our movement, the gay and transgender movement, has stood in solidarity with many of these overlapping communities in the various battles, as have many of these communities in turn. I think most people now recognize that we’re in a very serious moment where we need to think big, and act in concert, and engage politically, and not take refuge in academic, abstract divisions or debates for the moment, but have to rally and do what’s needed, including, most importantly, this political engagement.
That’s number one. And probably two and three and four. Having said that, of course the work of the gay and transgender movement is far from over. Though we’ve won the freedom to marry as a matter of law, the marriage conversation remains a powerful engine of transformation, building empathy, building visibility. The marriage lift helps advance the other gay and transgender questions still on the table: federal and state-level protections against discrimination, in employment, in public accommodations including bathrooms and so on. So the marriage conversation remains a conversation that can help advance those battles. It’s not like you win something transformative like marriage and then put it on a shelf and now just turn to the next thing. We continue to use the power of our stories, our visibility, of the creation of empathy, the showing of shared values that marriage really helps catalyze to help people better understand the full range of needs of gay people, of transgender people, as we work to secure other protections and block exclusion and discrimination.
We also don’t only want to win the legal and political battles, important as they are and necessary as they are, we also want to make sure that people feel in their day to day lives support and acceptance and opportunity, no matter whether they’re gay or transgender or not, and no matter where they live, rural, urban, religious, nonreligious, et cetera. It’s not just a matter of fighting to get good laws, we also want good lives. So we have to use the power of the marriage conversation and other aspects of our lives to continue building support and transforming that support into tangible gains, both in the law and politics, and in cultural and familial acceptance. So there’s a lot more left to do, but we’re not fighting from the place of zero, we’re fighting with the momentum of all we won, and in the context of the shared need to protect our country. We are part of the country. And of course you could extend that beyond the country as well; we are part of a global community that is seeing a fraying of liberal democracy and a rise of autocracy and a rise of xenophobia and division, and we have to combat that as well. But probably the best single way we in the United States can combat that is making sure our country lives up to its promises and is doing what it needs to do, while we also tend to the human rights battles in other countries.
You’ve pointed out that transgender issues are also a part of all this, and I was wondering, do you think there’s been a shift to discussing [transgender issues] more within the context of people discussing the LGBT rights movement, or do you think it’s still widely focused on different members of the community?
No, I think there’s been a significant and necessary expansion of conversation about who transgender people are, what their needs and vulnerabilities are, what the discrimination and unfairness that they face are, and how to address that both through the law and through acceptance. And I think part of that expanded conversation is due to the marriage momentum that has opened up greater support and brought more allies and shifted people’s understanding of who gay people are, and now we’re connecting that to who trans people are. And I think trans people have really stepped up, and the organizations both led by them and representing them have done a much better job of telling those stories and sort of following the marriage playbook to do the same kind of work that’s necessary to succeed. And as a result, we’re seeing tremendous successes and tremendous improvement, including a much-expanded conversation.
But as with any civil rights and human rights effort, it doesn’t happen overnight, and it doesn’t happen without resistance, and it doesn’t happen without defeats. So we have much more still to do, but again, we’re fighting from a place much further ahead of where we were a short time ago. And again, it’s not an either-or, it’s not do we fight for gay people or do we fight for trans people, you know, or do we fight for trans people or do we fight for immigrants, or do we fight for immigrants or do we fight for women. We need to smartly and tenaciously work for all, and again, that includes the shared effort beyond this group, this group, this group, this group—to the critical mass, the majority of Americans who can be rallied to patriotic recommitment to getting our country back on track, and reinvigorating our sense of government as an instrument of common good, and playing by the rules. Playing by the rules and our constitutional values.
I suppose there is even more uncertainty about this now than there was a couple of days ago, regarding who the Supreme Court nominee will be, but how do you think that the court, after having a second Trump nominee, will affect the movement and the sort of work that people are doing?
Well I’m reasonably confident that any Trump nominee is going to be bad…probably shouldn’t be there in the first place, both because the regime making the appointment is under investigation for conspiring with a foreign power to subvert our election, and therefore should not be able to make appointments while there is this very credible and serious question of legitimacy on the table, but also because Trump has basically outsourced the nominee list to an extremist agenda that in my view doesn’t qualify for a seat on the Supreme Court. But, we’ll see what happens, as he likes to say.
We didn’t win the freedom to marry as a gift from the Supreme Court. We won the freedom to marry by engaging in the serious, tenacious, difficult work of organizing, educating, inspiring political work, and so on over a long period of time and through many, many defeats and stumbles before transformation and triumph. So we won the freedom to marry with the culminating Supreme Court case having won in the court of public opinion, and having built political and legal momentum to encourage the court to do the right thing, not just by filing a brief. So, obviously it does matter deeply who the judges are, who the justices are, who our elected officials are. But our movement’s work and the opportunity to make progress doesn’t depend on some miracle appointment, nor is it stopped by some bad appointment or a bad president.
And I also believe that it’s much more important to focus on the pathway, not the problem. We all know things are bad right now. We all know there are many, many bad scenarios we can hypothesize and many we’re seeing put into play right now in our political moment. Don’t spend all your time cataloging the negative. Focus on what you can do to change things.
Going back to the idea of a global movement and how this relates to other countries, could you say a bit about the ruling that we saw earlier this month in India, that struck down that country’s ban on consensual gay sex, and how that might fit into parallels with Freedom to Marry and its work and more global trends as well?
Sure. Well, as a bedrock matter, gay rights, transgender rights, women’s rights, are human rights, and human rights are universal and we all have an obligation and opportunity to uphold those rights around the globe. We are seeing tremendous progress in many parts of the world, but we’re also seeing tremendous threat and tremendous problems, and in some cases very dire situations and even shocking regression: whether it’s the thug regime promoting anti-gay attacks in Russia, or the genocidal regime in Chechnya, or the repressive, discriminatory regimes in a variety of countries around the world. Gay people are still threatened with death and immense persecution and stigma and hostility, often as a government-instigated tool, but sometimes reflecting the lack of progress we’ve made amongst some populations in some parts of the world, which makes it all the more important that those countries that are committed to democracy and pluralism and the rule of law do their part to live up to their promise, both for themselves and then in upholding the banner of universal human rights around the world.
So when a country like India rules as it did two weeks ago, striking down the colonial-era artifact of an anti-gay law, it has immense repercussions not only within India, but around the world. When countries like Germany, Malta, Australia, end marriage discrimination, the three we won last year, when countries like Chile, the Czech Republic, and Taiwan and others around the globe are debating and working to win the freedom to marry now—all of that helps uphold the values and standard, which doesn’t immediately cure the threat we see in so many other countries, but it does put those countries in place to show leadership and moral example and build momentum. And this is what we need to do, not only for the millions and millions—we have hundreds of millions of people who live in those countries—but for the people who live in places where they’re not as able to fight effectively because of the threats they face.
I think that one of the real indicators, kind of the canary in a coalmine, of how a country is doing with regards to being a true democracy, a truly pluralistic society, truly respecting human rights, is how that country treats women and how that country treats gay people. Those are not the only populations that matter, but the way they are treated in a given country tells you really what you need to know about [how] that country is doing in terms of the health of its democracy and its rule of law and its pluralism. And so we have a real opportunity to continue making progress and upholding the standard, and it’s what makes what the Trump-Pence regime is doing to subvert the American leadership and American commitment to the world institutions and the standard of human rights—however imperfectly we’ve lived up to them in the past—the walking away from that, the effort to subvert these institutions at a time when liberal democracy and these other values that I’ve talked about are under attack from the likes of Putin and other autocrats in other countries…it makes it all the more shameful and all the more necessary that we get our country back on track.
Just a couple of short questions to wrap up. What is the best residential college at Yale?
Silliman, of course!
And what advice would you like to give to college students, in addition to what you’ve said about registering to vote and making sure your friends here and at home are registered to vote?
That’s the most immediate piece of advice right now: we need you, your country needs you, and we need you not only to make sure you actually do register to vote—particularly if you can do it not here at Yale but where we may need your vote in other states—but to really make an effort to contact your friends, your family and others, particularly back home, and encourage them to do the same and persuade them and keep going, keep pushing, keep doing it. Young people’s voices and young people’s votes can really make a difference in so many elections right now, and if there were ever a time when young people are needed to fight for our country, it’s this coming election. So that would be the number one immediate piece of exhortation, if not advice.
I guess my number one piece of advice is, believe you can make a difference and…don’t hold yourself back with cynicism or ironic detachment, or a sense of “it’s all terrible, this is a drop in the bucket, what can I do?” and so on. We all can make a difference, and it will feel good to make a difference, so don’t be debilitated by the range of terrible things: pick something and make a difference, and then you’ll pick the next thing, and the next thing. No one choice you make today has to be the choice for the rest of your life, or for the big everything or whatever, it doesn’t work that way. Make a difference now. Pick something, make a difference, then pick the next thing.
Anything else you’d like to add?
I’ll just add, being back now as a teacher here—with my favorite title ever, “Distinguished Practitioner of Grand Strategy,” that’s my great Yale/Hogwarts title—I’ve been so impressed by, not just the intellect, but the energy, the passion, the real commitment of the students that I’ve gotten to meet through this program [Brady-Johnson Program in Grand Strategy], and I just say keep at it, really. Don’t be negative, be engaged.