Is Marriage Equality in Peril? Evan Wolfson Explains

Welcome to the Where Do Gays Retire? Podcast, where we help you in the LGBTQ community find a safe and affordable retirement place. Join Mark Goldstein as he interviews others who live in gay friendly places around the globe. Learn about the climate, cost of living, health care, crime and safety, and more. Now here's your host, Mark Goldstein.

Today we have a different type of question. Is marriage equality in peril? Evan Wolfson explains what's at stake. I'll introduce you to Evan. Good afternoon, Evan. Good to be with you. Thank you. Thank you for being here. Appreciate it. Happy to. Evan Wolfson is a trailblazing attorney and a leading voice in the fight for marriage equality. Known as the architect of the marriage equality movement, he founded and is president of Freedom to Marry.

This campaign was pivotal in securing the landmark 2015 U.S. supreme Court decision in Obergefell vs. Hodges, which legalized same sex marriage nationwide. A graduate of Harvard Law School, Wolfson's advocacy for LGBTQ rights began early in his career. His work on Hawaii's bear vs. Miike case set the stage for national conversations about marriage equality.

He has been recognized as one of Time magazine's 100 Most Influential People in the world and has received numerous honors for his contributions to civil rights and social justice. Today, Evan Wolfson continues to inspire activism, consulting with organizations and movements worldwide to advance equality and human rights. His unwavering commitment to justice and equality has made him a respected leader and beacon of hope for the LGBTQ community and my personal hero. Thank you, Evan. Thank you.

We'll start off with a couple of questions. Your introduction and background. Can you start sharing your role in the fight for marriage equality and why this issue has been central to your work? And also for those who may not know, could you briefly explain what Obergefell vs Hodges established and its significance for LGBTQ rights in the United States? That covers a lot of ground.

Well, I wrote my law school thesis back in 1983, arguing that we should fight for the freedom to marry and that we could win the freedom to marry. And of course, this was at a time when there was nowhere in the world where same sex couples could marry. It was a very dark and difficult time for gay people and for advocates of democracy. We were facing a very hostile political administration. We were facing a surging religious right wing movement.

We were facing, perhaps most pointedly and shockingly, the cataclysm of aids. And people were dying all around us. Our friends, our colleagues, our fellow activists, our community. And yet, at that time, I also believed there was a pathway forward. And so, as a student I wrote this argument. I was not the first person to think of the idea that gay people should be able to marry.

Part of what I was writing about in that thesis was a wave of cases that had been brought by pioneering activists and couples around the country a decade or so earlier before me, that all sought the freedom to marry. And all of which were denied, all had been excluded. In the immediate aftermath of Stonewall in 1969, these couples around the country went to court seeking the freedom to marry, which was denied them.

And they all lost, including one of the cases that went all the way up to the United States Supreme Court, which, like all the other courts, got it wrong. So I came into the story about a decade later and was arguing that we should not take that no for an answer. And that scary and dark as the times were, we could help people to rise and we could make things better. And that there was a way to move forward.

And that we would do so by combining all the methodologies of change, to use a phrase from Martin Luther King, that while litigation was important, so was political engagement, so was fundraising, so was organizing, so was community building, so was protest, and so was persuasion. Talking to people, not assuming that just because they weren't with us that they couldn't change, that we could change hearts and minds and thereby change the law.

And I put this paper out into the world and then moved to New York after graduating law school and began working. And I had my day job and I had my nights and weekends as an activist, and I was volunteering with Lambda Legal and working with some of the other organizations during these beleaguered battling times.

And of course, what I was advocating for, along with doing cases on the range of concerns, partnership, healthcare, adoption, military discrimination, employment discrimination, aids, was that we should also have a marriage strategy. And that what we were going to need was a campaign in the midst of this movement to drive a strategy and to leverage support and to bring the pieces and methodologies together to win.

And that became the campaign that we eventually branded and organized as Freedom to Marry, which was aiming at creating the climate in which legislative work, ballot measure work, persuasion, and litigation could all happen in order to get us from 0 to 50 states, to get us from zero to our country, to get us from zero to more countries around the world.

And as the culmination of that struggle and long term battling and campaign and many, many defeats as well as victories in 2015, we were finally able to have created the climate and then be able to go to the Supreme Court to p them and Persuade them and help them to turn their no into a yes.

And so the culmination of the campaign, after winning battles in states and hearts and minds and around water coolers and family kitchen tables and so on, was to succeed in persuading the Supreme Court to end marriage discrimination nationwide.

And that was the obergefell decision in 2015, one of the many, many court decisions that we began by losing, losing, losing, losing, and eventually were able to turn into win by creating the climate and doing the multi methodological work that enabled that litigation to succeed. And so in 2015, a decade ago, we won the freedom to marry nationwide. We had already won in many states, and now we brought the country to national resolution. And of course, the work hasn't stopped there.

We've continued to harness the power of the marriage conversation and the marriage strategy and the marriage model to advance the other work that is urgent not only in the United States, but in many, many countries. And we've gone from zero countries in the world where same sex couples could MARRY now to 39 and counting. More than a billion people now live in a freedom to marry country worldwide, including of course, our own.

And we've used that power of the conversation, that vocabulary of love and commitment and family and dignity and inclusion and freedom and pluralism to advance not just marriage, but partnership rights, protections against discrimination, decriminalization, first in the United States and then in other countries where we need to continue that work and also advancing trans rights, youth rights, student rights, inclusion, et cetera.

And so, as everybody knows, we have made enormous progress and we've changed the map in the face of the place of same sex couples and gay people and trans people. And the work is far from finished. There's so much more to do, both to defend what we've won and to continue advancing here in the United States and in other countries. When did you start this? When. How many decades did you, did you go through?

I had done a few little things here and there, but my real beginning as a long term activists was with, with this paper, this thesis in law school, which I wrote in 1983. Okay, so, so it was Dec. It was Decades of work for me. I mean, it was from 1983 until we won in 2015 was 32 years of engaging in one form or another. And as I said, I was not the first, I was not the one who began it all.

So it was more than four decades to achieve that transformation and to win the freedom to marry, and not just win the freedom to marry, but to advance the place of Gay and trans people here in the United States and in other. Other parts of the world. I mean, people have to understand when.

When I was, you know, a young person and a student and an early activist and so on, that was at a time when it was criminal in most places in the United States, as well as in many countries around the world, as it still is in some, to have sex, let alone to have relationships. It was a time when there were almost no protections against discrimination in employment and housing, in access to services, in treatment by the government, and so on.

And we, you know, we still have a long way to go, but, of course, we have massively changed that landscape. And public support for gay people and for trans people and for inclusion and for pluralism grew massively as we engaged and persuaded and battled and changed hearts and minds. When I wrote my law school thesis in 1983, 11% of the American people supported the freedom to marry.

Now we're at 70% or more, including people who were formally opposed, including older people, Republicans, even conservatives, people who identify as religious, et cetera. We have moved hearts and minds and changed the law. And the work is not finished. And there's much more we need to do. Right. The conversation continues. So tell us, how secure is marriage equality under the law today?

Well, I think everybody is aware, and if you weren't aware two weeks ago, you're aware now, that we are in a very dark and dangerous time in the United States, not to mention several other countries, as we see surging efforts at autocracy, oligarchy, power and wealth grabs, chaos, corruption from Trump, the Republicans who are enabling him, the oligarchic forces who are bankrolling him and sometimes directly colluding with him.

And so this is a very dangerous time for not just for gay people, but for democracy itself and for our American freedom, our pluralism, our national security, which is under assault by these corrupt forces. And so when you ask, how secure is the freedom to marry? In. In one sense, nothing right now is secure in the sense of we don't have to do anything and we don't have to worry and we call, just sit back and watch the chaos. We have threats to everything we care about that are underway.

But if what you mean by the question is, should we be particularly worried about losing the freedom to marry we fought for and won over decades, I would say that's not the number one thing to be focused on. It's not the number one thing to worry about. Anything can happen. Bad things can happen. There are bad things that are happening. But there are enough bad things that are happening already that we don't have to spend all our time trying to catalog more bad things that might happen.

Let's just get to work and block those bad things and move our country in the right direction and organize and persuade and build and reinvigorate our democracy. And if we do that work, we will prevent the other bad things that haven't happened yet from happening. So rather than, as I said, sitting around cataloging all the bad things that could happen, it's much better to see the bad things that are happening, engage, push back, and fix the crises that are in the country already.

And how would you go about doing that? Well, let me just say, give a little more detail on why I prioritize that way. We didn't win the freedom to marry as a gift from the Supreme Court. We won it over decades of engagement, struggle, battles, and as I said earlier, multiple methodologies, litigation here, legislation there, work at the local level in the states as well as at the federal level, in Congress and in the courts and in the Supreme Court.

So even if the Supreme Court were to do something terrible, that doesn't erase everything else that happened, it doesn't change all the advances that have been made in the states, at the federal level, in Congress, in the hearts and minds, in the communities, et cetera, it might make things worse, it might make things a little more challenging. But this wasn't handed to us as a package, and it's not all going to go away in one fell swoop, even if something bad were to happen in this category.

So to be concrete about it, even just last November, this last election, which narrowly but significantly went wrong at the level of the presidency and Congress, we saw three states write the freedom to marry into their constitutions. We saw multiple jurisdictions over the course of the last several decades solidify their commitment to dignity and equality and love and freedom. So even if the worst were to happen, those bad things, those things don't go away.

It moves us maybe slightly more in a checkerboard direction again, but it doesn't clear the board. It doesn't wipe everything away.

And of course, most significantly, during the last couple years, two years ago, actually, to be precise, President Biden signed into law the Respect for Marriage act, which is federal legislation that was passed by a bipartisan vote of Congress in 2022, affirming the freedom to marry and making clear that even if the Supreme Court were to say there is no nationwide guarantee of the freedom to marry, that if couples are legally married anywhere, whether in the United States or in other countries,

including the 38 other countries that we won, those marriages will be respected by the federal government and must be respected by states throughout the United States. So in other words, even if the Supreme Court did the worst thing, something that maybe there are two votes on the Supreme Court to do, but I doubt there are five, and said we were wrong in saying there's a national freedom to marry, we're going to return the question to the states.

Even if they did that, and even if some states under Republican domination and religious right wing pressure pushed in the wrong direction and tried to take away the freedom to marry, say in Alabama, people in Alabama would still have under this federal legislation the ability to get married in Georgia or in New Mexico or in California or New York, et cetera, et cetera.

And when they come home to Alabama, in that hypothetical, Alabama would have to honor and respect those marriages as marriages, and so would the federal government.

So the protections and the advances and the progress that has been built is not just one little thing that can somehow be overturned by an executive order, as we've seen in the chaotic corruption of the last two weeks, nor can it be overturned lightly by the Supreme Court, even if the Supreme Court were inclined to do that, which I actually don't think is the case.

So that's why I'm saying to people, instead of sitting around worrying about this small, scary, but very hypothetical and not yet present question, focus on the things that are happening and the things we can do right now to make the country better. Sounds like great advice. Again, our listeners always, they have questions, they always think the worst, of course, and they think about if it would go back to the Supreme Court.

Is it at all possible that even the Respect of Marriage act could be overturned?

The Respect for Marriage act for Marriage Act. So again, can things happen? Yes, anything can happen. And we know from history that bad things do happen. And we know from current events that bad things do happen. But is that the most likely thing to happen?

No. And so again, instead of sitting around spending hours and hours and hours and working yourself into a state over some hypothetical that theoretically could happen, but why not just focus on the things that are happening, the things that haven't happened, and how we can make them not happen and how we can fix what is happening? I think the way to get through difficult and dark periods, and we have had to do that before.

We are not the first people to face threats to democracy, to gay rights, to our community, to pluralism, to dignity, to various communities. We're not the first ones to face scary, difficult times. The way to get through them is not by predicting your own doom and sitting around wallowing. The way to do it is to stay informed, stay engaged, but also turn some of that off and go engage with other people on actions that will prevent the worst and achieve the better.

So people want to know also, would they be better off living in a blue state or with strong protections or, you know, stay put where they are? I know nothing has happened, and we understand that, but would moving to a blue state with, like, those three states that enacted marriage equality into their constitutions? I believe it was California, Colorado, and Hawaii most recently. Others have done it prior to that, over the years. Yeah, right.

Would moving to a blue state that had those protections be better off for the average LGBTQ person? Well, there are certainly some states that have much better law and much better political cultures and much better levels of overt public support and much less dysfunctional political imbalance and Republican power grabbing beyond their levels of support. There are some states that are much better than others when it comes to those factors.

And so to the extent those are the factors that matter most to you, and they are certainly factors that shape the legal environment in which people live, then, yes, the answer is, of course, there are states that are better than others when it comes to those. Indisha. When it comes to those criteria. But we also choose to live based on a lot of reasons.

We all, we all make these choices and, you know, it has to do with family and environment and connections and friends and cost of living and environment and activities and so on. And not everybody is as free to choose or can as easily choose as others. People are tied in various ways, whether it's their jobs, their families, their work, their. Their. Their levels of. Of personal security, et cetera. So it's, you know, it's easy to say when you look at just the legal criteria.

Some states are, are, quote, better than others. Some states are. Are more protected than others. And that is clearly true. And if that's what you want to prioritize, then find a way to get to another community, another state, another job, another friend circle, et cetera. But that's not something that one should just say lightly. And people shouldn't have to do it. And we don't have to think of ourselves as being in that place. We can also fight for the communities we live in.

We can fight for where we are. We are living through dangerous, chaotic times, but we also shouldn't make things worse than they are. We don't have to imagine we're immediately the Handmaid's Tale. We're immediately in Germany in the 1930s and so on. Can bad things happen? Yes, but don't make them worse than they are. Don't surrender in advance. Don't predict your own doom.

And so people have to decide on their own comfort level, their own security level, their own level of engagement, and their own all these factors as they make those decisions. And I would say it's really important that we protect ourselves, but it's also important that we work for the communities and people and values that we care about. And that has to happen throughout the United States, even if it won't happen evenly or linearly throughout the United States.

So we'll try to get off the topic of the doomsday, you know, thing. Wallowing. Wallowing, right. So how would you go about fighting back? Tell our audience what you would do or what people should do in order to fight back? Yeah, I think we need to call out the bad things that are happening. We need to put pressure on those who are doing bad things. We need to encourage others to join us in those activities.

We need to convey a message and a pathway of hope and determination and the understanding that it will take time and won't be fixed overnight, but that there are actions and pushpoints, facts and building that can happen, hopefully collectively, but to which we all individually bring our part to get our country on the right track.

And so that means that those of us who live in the states that are further along and better protected and where the elected officials are more responsible, we need to encourage them and help them to make their voices heard, to block bad nominations, to block bad actions. We need to, in those states, when we live in those states and those communities, support organizations that are going to court, that are providing safety nets and support to the communities under assault.

We need to engage in the political work of building up the political parties, the political voices who are going to run races and engage in the lobbying and the political election work, et cetera, building toward the elections in order to turn the tide. And those who live on the ground in the more challenged states or the places where there are elected officials who are bad or who are not doing what they need to do, they can play an even more important role.

And those of us who live in other states need to support those activities on the ground in the purple states and in some of the red states in order to flip some legislative seats, in order to encourage local officials and other officials to speak out and to denounce in order to make sure that attorneys, generally general, are doing what they need to do and ultimately need to take back control of Congress and take back control of the White House and create a political environment in which the

right elected officials and the courts who are appointed by them or shaped by them will stand up to bad stuff and do the right thing. And, you know, as that little picture suggests, this won't happen overnight and it won't happen in one step. But don't be daunted by the fact that you can only do what you can do, do what you can do, and know that you're supporting and encouraging others to join you in that momentum and that work.

The election was a cataclysmic election in terms of the consequences we're seeing play out right now. And it is going to get worse before it gets better. And at the same time, we shouldn't overread what happened. What happened was a narrow loss in a terrible political climate for incumbents and for government all across the world. And that enabled anti government forces and anti equality forces and anti justice forces and forces, just a plain outright corruption to seize power right now.

But the environment in which we will engage them and the environment in which they will next go to where we will have the next election will not have the same dynamics and burden and the aftermath of the pandemic and the sourness of the economy and the terrible weight on incumbents and so on. So we need to push back where we can right now. We need to call it out.

We need to make elected officials own what is happening so that they feel pressure, even if not directly right now, as they get closer to election. And we need to build toward the next set of elections in which we try to take back power in district by district, legislature by legislature, state by state, and at the national level. That's how it's going to change. I know that doesn't sound like, wow, that's an immediate recipe for improvement.

Things do take time, but as the story of the freedom to marry suggests, where you began our conversation, things do take time. And yet we can achieve change. We make things better. It can happen, and that's how it's going to happen. And it won't take 40 years. This will take a few years to fix the damage that's being done and to get things back on track. But a bit of engagement can actually trigger a fair amount of change when the moment is right.

And you never know exactly when that's going to be. So you want to be out there doing what you can as we go forward, contributing, donating, speaking out, volunteering, sending letters, visiting elected officials, and don't bang your head against the worst. Go find the reachable but not yet reached. Go find the places where things can be moved. Don't focus on the worst all the time. Focus on the pathways forward. That's great advice. That's great advice.

Are there any particular organizations or movements you recommend supporting? Yeah, absolutely. To protect LGBTQ rights? Absolutely. We have the pillar organizations in our own movement, whether it be Lambda Legal or GLAD in Massachusetts, the aclu, the national center for Lesbian Rights.

We have democracy organizations that are fighting hard to defend our democracy and to go to court where necessary and to engage politically and create the climate and enlist experts and marshal voices, whether it be in the military or in business, and others who are protesting and speaking out against the corruption that we see in the Trump administration and enabled by the Republicans.

So organizations like Stand Up America or Indivisible or Protect America or the or the many other similar kinds of organizations that people can join to be part of a group and to get support from those groups. And it's important for people to engage and support the Democratic Party. Now, the Democratic Party is not perfect. You don't have to be a capital D Democrat all the time. But right now the Democratic Party is a crucial, beleaguered vehicle for small d democracy.

And unfortunately, they're the only one of one of the two big parties who, who can disagree on a whole bunch of things and disagreement is legitimate. But we. But when a party is disagreeing with democracy itself and the rule of law itself, then it is a danger and it has to be defeated. And right now, the only major party that is not a danger to the rule of law is the Democratic Party.

So I don't say that as somebody who believes you have to be partisan, but sometimes you do have to be partisan, and this is one of those times. So there are the community organizations, there are the broader national organizations like a Stand Up America or an aclu, et cetera.

There are the various causes and I'm sure many people listening to this may particularly hold near and dear to their heart, whether it be women's rights or reproductive rights or immigrants rights or Jewish support or Muslim support.

Whatever your particular cause and focus is, you can contribute to the larger whole and stand in solidarity with the other communities and should also keep an eye on democratic political engagement also, because while it's important to support the non profits we support and the various communities we support, the causes we support, right now we have to support our democracy itself. And we have to mobilize politically as well as in the community work that many of us care about. Awesome.

As someone on the front lines of this fight, what gives you hope for. The future, for marriage, equality, for marriage? Well, we continue to win more countries around the world. I mean, we've won countries just in the last few years as diverse and as difficult and as complex as Nepal, Thailand, Estonia, Greece. I mean, I could go. I could go through the, you know, the most recent wins over the last several years, let alone the going from zero that we had to start with.

These are not countries that are all, shall we just say, Canada or Sweden or Holland, et cetera. And by the way, none of those countries were easy either. So part of what gives me hope is my own lived experience as an activist and as somebody, as a citizen, knowing that it's always been difficult, and it's often been difficult, dark and challenging, and we've often been defeated and lost, and yet we prevailed, yet we engaged, yet we persisted, and yet we won.

So that's my own experience of activism. And of course, that's also true in the broader activism here as a gay person, as somebody who worked on AIDS and somebody who worked for gay rights and set the stage for the progress we already have. We live through terrible, terrible times, and they were terrible. And right now is a terrible time for many people and a threatening time for our democracy. And yet there are pathways forward. There are ways to succeed.

And it's not only my own lived experience that tells me this. It's also history that tells me this. And one of the things that gives me great inspiration and instruction is loving history, Reading history, being aware of history, reading biography, seeing the struggles that others have engaged in, the.

The long time it's taken, the time that people have had to stick with it over difficult challenges, et cetera, and knowing that we are living in such a time, a historic, challenging time right now. And yet if we do our part and reach meet the moment, we can move things forward. So it's partly the inspiration of others, and it's partly the inspiration from history.

And then it's the actual gratification that comes from being part of making a difference, joining with other people who share your values, who you may disagree with on various things, just as we disagree with our families, but we still love them. You may disagree on this or that, but you share a vision of the world and values and decency and dignity and inclusion and love. And armed with all of that, a group of us can make A difference. And we've shown that before, and we have to show it now.

Now. Excellent. Is there any one thing that you want listeners to take away from this conversation?

What would it be? Stay hopeful. Stay engaged. Be part of the work. It will take time. It will get worse before it gets better, but we can make it better. And the way to get through these difficult times is to, as I said earlier, stay informed, but don't wallow. Convey hope and determination. Find others, engage with them. Take action, build on that action and then build on that action and savor the progress and find other joy in life to sustain you as you keep doing that work. That's great.

Is there anything else that you'd like to add, Evan? No, I really think that is the key point. You know, that. Don't react, don't overreact to everything. Be clear about where you want to go. Be clear about what it's going to take to get there. Do your part. Nobody can do everything. No one person, no one cause, no one battle is going to do it all. And yet together we can make change.

And the freedom to marry work that I led and that we have, you know, that we succeeded in is now written up in many books as the model of success, as proof of change, et cetera, et cetera, et cetera. And one of those books gave a very interesting metaphor that I always really liked.

After I had stopped doing this work and was able to start teaching the work and looking at it, they talked about a vision of, imagine this terrible edifice of oppression and statue of a dictator on the top, and these pillars that look immovable and fearful. And people begin shaking these pillars trying to topple that statue and bring down this oppressive regime. And in the beginning, they're shaking and shaking, but nothing seems to move.

And quote, nothing seems to be happening, and it's shaking and nothing and shaking and nothing. And then a pillar comes down, and then another pillar comes down, and then the statue topples, the oppression is over. And then people turn around and say, well, that was inevitable. That was, you know, that that happened.

But what about next? What about this? What about that? And the point of the metaphor is that there will be periods where it seems like everything's terrible, nothing's happening, et cetera, et cetera, et cetera. But don't keep saying everything's terrible and nothing's happening. Convey the opportunity to bring the peace, bring the building block, join the group, do the work. And that's how the pillars come down, and that's how we succeed. And history has proven that.

And our own lived experience as gay people, as Americans, as people of a certain age, as young people who have their energy and vision, our own experience and history tells us that this is how we can make things better. And that's the opportunity we have right now. Great advice. Thank you so much, Evan, for your time. It was great. You're my hero. You always will be. And thank you again. We'll speak soon. Thank you. I look forward to seeing the actions that flow. And there will be action.

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