Inside the Fight for Marriage Equality: 10 Years Later

A conversation with Freedom to Marry founder Evan Wolfson on the 10th anniversary of the landmark Supreme Court ruling Obergefell v. Hodges.

If you’ve ever attended a gay wedding in America, you have, in large part, Evan Wolfson to thank. Not for the party, of course. But for the fact that the marriage is legal at all.

It’s been exactly ten years since the Supreme Court’s landmark ruling in Obergefell v. Hodges made marriage equality the law of the land in all 50 states.

It was a victory so historic and generationally defining that it can be easy to forget it wasn’t always inevitable. It had to be imagined into existence. And Evan Wolfson is one of the pivotal lawyers who did exactly that. (Or, as the kids say, he manifested it.)

In 1983, Wolfson wrote his Harvard Law thesis on the legal case for marriage equality. It was a document so wildly ahead of its time that it wasn’t so much viewed as controversial as it was simply unthinkable.

That thesis would become the blueprint for a decades-long civil rights battle, culminating in the Supreme Court’s landmark Obergefell v. Hodges ruling in 2015.

Along the way, he argued before the Supreme Court in Boy Scouts of America v. Dale (2000) and later expanded his thesis into the 2004 book, Why Marriage Matters, being named one of Time magazine’s 100 most influential people in the world.

Wolfson founded the non-profit Freedom to Marry and led it until its goal was achieved in 2015 and the group voluntarily shut down.

In January of this year, President Biden awarded him the Presidential Citizens Medal, one of the highest civilian honors in the United States.

Not too shabby.

But Evan is not a look-at-me guy. He’s more of a look-at-what-we-built kind of humble mensch.

Earlier this month, we sat down over Zoom for an hour to discuss the milestone anniversary.

The following is our conversation, lightly edited for clarity, length, and narrative cohesion with bolded sections for ease of reading.

Peter Fox: In 2022, President Biden signed the Respect for Marriage Act. Was that more of a symbolic gesture, or did it actually repeal DOMA in full?

Evan Wolfson: Yeah. So the Respect for Marriage Act that was passed by a bipartisan vote of Congress in 2022, and signed by President Biden on the White House lawn, actually is not just symbolic. It is actually very important and meaningful. Because it, among other things—as you said—repealed the so-called Defense of Marriage Act. So it repudiated that discrimination officially with a bipartisan vote, including some who had voted for DOMA originally. But even more important, it provides that any couple that gets lawfully married in any state—or really anywhere—must be respected as married in all 50 states, as well as in the federal government, for federal protections and responsibilities, and so on. So, in other words, it embodies in law essentially a 90% protection against even the worst-case scenario where, as some people worry, if the Supreme Court were to overturn our marriage victory of 10 years ago, thereby removing the guarantee of the freedom to marry in all 50 states, we would still have legal protection for our marriages in all 50 states. So it's not just symbolic. It is a substantive protection and a guarantee that the worst that people are fearing—which I think is unlikely, anyway—but even if the worst were to happen and the Supreme Court ruling were overturned, even if you couldn’t get married in a state, for example Alabama, Alabama would still have to legally honor the lawful marriages of people who leave Alabama, go to California or New York or New Jersey or Colorado, and get married and come back home.

So we’re in a stronger position now because of the Respect for Marriage Act than we were even in the lead-up to our win, because we succeeded in passing that legislation that now mandates federal and interstate protection for marriages.

Peter Fox: It's a very refreshing response, because it's optimistic, and it's a lot more optimistic than you'll hear from certain activists online. I think among LGBTQ activists, there’s a real fear that like this is going to be overturned the way Roe was, and if it's overturned, like they'll lose rights. But it sounds like what you're saying is, even if that happens, there's a way to make it work.

Evan Wolfson: Yeah, well, I mean, you know, of course, people are right to be concerned about the terrible climate in our country and the bad politics and the dangers and the attacks that some—in a minority, but a minority wielding disproportionate power—would like to inflict on gay people, on trans people, on all kinds of other groups of Americans. So people are right to be worried about that, and to be frustrated and angry and disgusted and embarrassed by the toxicity of some of the politics. But people should not just sit around worrying, and should not sit around cataloging all the ways in which things might even still get worse. Things are bad enough already, and we should get to work. And we should get to work meaning taking back political power and getting our country on the right track—not just sitting and stewing and assuming that all kinds of bad things that the right wing might like to do have already happened. That’s not true, and we are in a stronger position than people may think, even though we also face very serious threats that we need to fight. And if we fight those threats successfully, we will protect ourselves against further threats.

And on the question of optimism—I generally don’t describe myself as optimistic. I generally describe myself as hopeful. And I absolutely believe there’s always going to be a pathway forward, and we can do the work, and we can overcome terrible things, including, you know, the AIDS epidemic, the rise of the religious right, not to mention, of course, race discrimination, the oppression of women, etc. So I always believe we can work and find a pathway forward, and the best way to do that is to begin with hope rather than to begin by making things even worse than they are and spending all our time worrying.

The Respect for Marriage Act was a bill that we wrote as part of our campaign to win marriage. I think we actually wrote it back in 2009, 2010—give or take—and I’m the one that actually came up with the name, Respect for Marriage Act, back then.

Peter Fox: Didn’t know that.

Evan Wolfson: And it was introduced by Jerry Nadler and later Dianne Feinstein in the Congress, and we pursued that as one tool in our campaign to win, building toward the Supreme Court. We actually did not intend to pass it. We didn't really believe it was likely that we would be able to get it to pass through Congress because of how divided the politics were at the time. We saw it as one methodology, one tactic in our organizing effort to build support for the freedom to marry in a way that would shape the climate so that we could win in the Supreme Court, which was our strategy. We did not think it was likely to pass. But many years later, after we won—after our campaign succeeded and we won 10 years ago in the Supreme Court—support continued building. The bipartisan support continued growing, and we found ourselves with the cumulative momentum of what we had done at a moment when we actually might be able to pass the bill. And so, thanks to the strong leadership of President Biden, but also Senator Tammy Baldwin, Nancy Pelosi, Chuck Schumer, and others, we seized the moment, including the threat that Clarence Thomas and Alito were pushing out at that time in the Dobbs decision overturning Roe v. Wade.

Peter Fox: Was your strategy from the start, always about taking it to the courts versus getting it on ballots?

Evan Wolfson: Yeah. So the strategy was to create a climate in which we could win in the Supreme Court. We looked at—what did we want? We wanted to affirm the freedom to marry nationwide and make sure marriages are respected throughout the country. That was the goal. From goal, you go to strategy—so how are you going to make that happen? Well, in our system there are basically two actors that can bring the country to national resolution: either the Congress or the Supreme Court. The other way would have been, as you just said, to just go state by state by state by state, plotting through, you know, Mississippi in the year 2080. But we didn’t want to wait that long. So we looked at which of those two actors that can bring the country to national resolution is the most likely for us to succeed. And Congress, for the reasons I mentioned earlier—was divided and sometimes dysfunctional—and it didn’t seem likely we were going to be able to get it through Congress.

It was also not legally clear that Congress has the power to require marriage in all 50 states. Marriage is, in the first instance, governed by the states. It’s the states that issue marriage licenses, not Congress. So it wasn't 100% clear that Congress could pass a national marriage law. Congress can regulate interstate relations, which is where the Respect for Marriage Act comes in, but the affirmative granting of licenses is something that the Constitution most likely leaves to the states. So, for all those reasons, we decided that the strategy would be we would aim to win in the Supreme Court. The problem with that was we had already lost in the Supreme Court [Baker v. Nelson (1972)].

I wasn’t the first one to think of the idea of gay people getting married. In that 1983 paper as a law student, I was writing about the first wave of marriage litigation that had begun in our movement immediately after Stonewall. Stonewall was 1969, and in the early seventies, couples began going to court seeking the freedom to marry. And one of those cases reached the Supreme Court, which in 1972, like all the other courts in that first wave, threw the case out—basically said, there’s no claim here. The couples have no right. There is no such thing as gay people being able to marry. The freedom to marry doesn’t protect these couples against the denial. And those cases all lost. I was writing about those cases 10 or so years later, saying, let’s not take that no for an answer. Here’s a way to move it forward.

And so the rest of the strategy became creating the climate that would enable us to win in the Supreme Court. But one of the methods we used to create a climate to win in the Supreme Court was to try to win marriage in multiple states, to build a critical mass of states. That was track one of the strategy. Track two of the strategy, synergistically, was to build a critical mass of public support—to grow, to grow, to grow support. We were at 11% when I wrote my paper in 1983. That’s not a critical mass. So we wanted to get a higher number of support. Ultimately, we wanted to get to majority support—and even beyond. And so one of the methods we used, among many, was, for example, to introduce this bill in Congress. Not because we actually thought we could pass it, but because we thought it would help build discussion and give us a vehicle for engaging Beltway influencers, including members of Congress and ultimately the courts, so that they would be ready to rule in our favor when the case came at the right time, and the Respect for Marriage Act was initially created as a tool, not as an actual legislative tool, legislative vehicle for actual passage, as as we built momentum and as we did the work, and as we change hearts and minds and as we seized opportunities, and as we also use threats against us as a call to action. There came an opportunity to pass the Respect for Marriage Act, and that's what we did in 2022 seven years after we had already won the freedom to marry.

Peter Fox: Not to make you sound super old, but how were you becoming an expert on marriage laws in the ‘80s. Not just the question of gay rights, but understanding that marriage touches a thousand different federal benefits and legal protections. How were you figuring all that out, as someone still in your twenties?

Evan Wolfson: Yeah. Well, you know, back before the internet, we read books. We went to these giant buildings called libraries. We read law journals, which were actually published in print, and you would go to either the libraries or get them in the mail. There were giant books that collected Supreme Court cases, and that's what lawyers and law students did. They actually went through all these vast materials. And there were also services that did some research and also published serials.

Peter Fox: Were you surprised when you were doing your research that there was a 1972 case for marriage equality?

Evan Wolfson: I can't remember now exactly, but I vaguely think I had known about that. I mean, there was obviously a lot of national discussion. And, you know, back in the day, we had newspapers.

Peter Fox: Yeah, I grew up without internet for like, three years too. I only really ask because, you know, people always talk about with homophobia, it's because there was so much ignorance, because there was a lack of access to information, so you really had to go out of your way to find it, so you were someone who was able to find it in not the easiest places.

Evan Wolfson: Yeah. Yeah. I mean, it's true that the Internet gives us all just this extraordinary access to information at, you know, at the tap of a finger. And that is one of the great powers and great opportunities that we have in our current moment. The downside of the internet is it also floods us all with so much information, so much noise, and so much disinformation, that it becomes harder to even pay attention, it becomes harder to find the truth, and it becomes harder to engage in discussion in a way that will on the basis of shared facts and to really be able to find your way to truth and persuading people.

You know, it gives you a great tool, but it also has some disadvantage, and so that one of the lessons of that is learn how to use the tool and don't be a prisoner of the tool, you know, find other ways of gaining information, of validating information.

Peter Fox: Yeah, at the same time, the internet was so instrumental in normalizing acceptance and even, like, celebration of gay people. It almost seems like not a random coincidence that the marriage movement took off right as social media was really taking off in the 2010s.

Evan Wolfson: I want to quibble with how you phrased that. The internet didn’t do that. People did that using the internet as a tool.

Peter Fox: Right. But people were changing their profile pictures to having a rainbow gradient over their face. “Love is Love” went viral. That was kind of a phenomenon.

Evan Wolfson: They were doing that because other people were reaching them with a call to action, with stories, with an environment of opportunity. It didn't just happen. You know, there's no internet button for let's make the world better for gay people, right?

Peter Fox: Yeah, I actually wanted to ask you something: when you created the Freedom to Marry organization, were you ever hoping that you would argue before the Supreme Court for one of the marriage cases?

Evan Wolfson: No, not at that point. I mean, I had, as you know, already argued in the Supreme Court in the Boy Scouts case. It was a thrilling, scary, incredible experience—and I absolutely would’ve welcomed the chance to do it again.

But at the same time, when I left Lambda [Legal], where I’d been one of the key litigators in the movement, and one of the early litigators on marriage, alongside my co-counsel—we had already won the world’s first-ever ruling in favor of the freedom to marry in Hawaii in 1996. When I left Lambda to start Freedom to Marry, I made a decision: I wasn’t going to litigate anymore.

I stepped back from being a litigator—not because I didn’t love it, but because I knew there were other truly great litigators who could take on that piece of the strategy. And the strategy needed more than just litigation.

What I saw was a huge need for someone to step out and galvanize everything else that needed to happen—the public education, the messaging, the organizing, the political work. And that’s what I committed myself to with Freedom to Marry, trusting that the litigation side was in very good hands.

Peter Fox: How instrumental was your organization, Freedom to Marry in getting the marriage movement started and mobilized? Would we have this 2015 Supreme Court decision if Freedom to Marry wasn't part of it?

Evan Wolfson: Freedom to Marry was instrumental but it was not the only contributor and not the only factor, but it was an an instrumental factor. And I don't think we would have gotten there as soon as we did without Freedom to Marry.

And the reason for that is, I think that in order to win, we needed four things.

Number one, we needed the Constitution and the guarantees of liberty, ie the freedom to marry, equal protection and what the constitutional system embodies, the right to protest, the right to petition elected officials and courts for the redress of our grievances, as the Constitution says, we needed an independent judiciary, a robust free press, the right to protest, et cetera. We needed all of that constitutional system that we could leverage to get to end this discrimination and our exclusion from marriage. But as we all know from our history and as we know from our daily perusal of the internet today, those that constitutional system doesn't enforce itself. It doesn't it doesn't self execute, and it's fragile and it can be damaged and ignored.

So in order to invoke that constitutional power, we needed three other things: we needed a movement. We needed a strategy, and we needed a campaign.

There are many organizations, many players, many methodologies of change, litigation, legislation, public education, direct action, electoral work, fundraising. There are many egos, there are many battles, there are many states, there are many years, there are many pieces that were going to be necessary in order to change the hearts and minds and the law in order to win marriage. No one person, no one organization, no one methodology did it all. Even though our strategy was litigation-centered, we needed to do all the other things in order to create the climate in which litigation could succeed in a way that it hadn't back in 1972 so we needed a movement. We needed this multiplicity. But if you only have a movement, you have this swirl of random activity and actions, and some people think this, and some people think that, and this happens. And then so we needed the two other things as well. We needed a strategy. And I already mentioned that earlier. I can talk more about what our strategy was, but we we had a strategy. Now, not everyone had the same strategy, but you don't need every you need enough. That's one of my rules of activism. And so what we needed to do was to bring together a critical mass of action around a winning strategy, even if some people didn't agree, even if some people were contributing to that strategy without knowing it.

Peter Fox: And what constitutes a critical mass is that the majority of the states or just a dozen?

Evan Wolfson: We didn't know exactly what a critical mass would be, but it was more than zero, which is what it was when I started. The second track of the strategy was to have a critical mass of public support. We didn't know what that was, but it was more than 11% which is what it was when I started. It's more than 27% which is what it was when my co-counsel and I did the Hawaii case [in 1996] and won the first ruling, but ultimately didn't cross the finish line at that point, because we didn't yet have that critical mass. And the third track of the strategy was to tackle and end the federal discrimination, the so-called Defense of Marriage Act, that was added on top of the state discrimination that we were challenging. So we needed a strategy, and we had a strategy, and it was on freedom to marry’s website. It was called the roadmap to victory. You can still see it if you go to the website.

Peter Fox: It’s interesting how The Defense of Marriage Act was signed into law as a direct response to the case you argued in Hawaii [in 1996]. But even without DOMA, there still wouldn’t have been marriage for gay couples without these lawsuits moving forward. So, how much harder did DOMA actually make it? The 2015 Supreme Court ruling came after part of DOMA was struck down.

Evan Wolfson: So, the discrimination we were challenging, and by we I mean decades of couples and lawyers and activists and gay people generally, over 40 years, was the denial of marriage. In other words, our exclusion from marriage. In the first instance, you are denied marriage by a state. States in our system, the American system is pretty unusual in this regard compared to most countries. But in the United States, marriage licenses are issued by states. There is no marriage law at the national level. It's all state by state by state. So the discrimination that people were encountering when they went to court in the early 70s, when they went to court in the 90s, when they went to court was discrimination by the states. If you live in New York, you go to the New York City Clerk and you ask for a marriage license; New York would have said no at one point. So that was the discrimination when we began mounting the turning point challenges.

In other words, there was that first wave of marriage litigation back in the early 70s. They all lost, the couple that went to the clerk in Minnesota, and were denied a license. And then they went to court in Minnesota, and that case went all the way to the Supreme Court. Other couples went the clerk in Washington. There was a case in Maryland, etc. They were all denied, and then they lost in court. They were denied at the state level. In Hawaii [1996], [gay] couples went to the clerk's office and asked for a marriage license. They were denied. We then organized the effort and eventually had the world's first ever trial, and for the first time ever won in court. The court said these couples must be given a marriage license. While that was happening, literally, while Dan Foley and I, my non gay co counsel, and I were in court in Hawaii, fighting in the courtroom to win the freedom to marry Congress, spurred by the Republican presidential campaign, actually jumped into the action and decided to pass another law at the federal level, saying that even if those couples win in Hawaii, the federal government will not honor their marriages. So even before we had won marriage anywhere, politicians in Washington were passing a discriminatory law, a new discriminatory law called the Defense of Marriage Act, to say that even if we succeed in winning someday in some state, they will not respect that marriage at the federal level. And they also ostensibly gave permission to the other states to not honor the marriages either. So, when DOMA was passed in 1996 by, you know, Republicans in Congress, but with an overwhelming bipartisan vote, and signed into law by Bill Clinton during a presidential campaign, and when that was passed, it was hypothetical, because we didn't have the freedom to marry anywhere. And what I said at the time was, this is, you know, this is disgusting, it's discriminatory, it's unconstitutional, it's wrong, but it won't stop us, because what they didn't do was say states may not issue marriage licenses. What they did say was, we're going to discriminate, even if a state does so. Our first step had still had to be to win marriage in some state, and that's what we launched this campaign to do.

Peter Fox: Yeah, I wonder why they didn't make it even broader.

Evan Wolfson: Arguably, because it's not clear that Congress has the authority to regulate marriage in the sense of saying what a marriage is or isn't. What Congress may have the authority to do is to say how the federal government will treat the marriages that are celebrated by the states, and it does have the ability to regulate the interstate relationships under the Full Faith and Credit Clause, but it arguably doesn't have the power to directly regulate marriage itself. That is a matter initially left to the states under the guarantees of the federal constitution.

Peter Fox: After the Hawaii case and the passage of DOMA, as you were launching Freedom to Marry, what was the climate like within the broader gay rights movement? I’ve heard different things. Some say marriage wasn’t really the priority at the time—that the focus should be on things like housing, workplace discrimination, and other immediate protections. But you believed marriage should be the focus. And in the end, you were proven right, that by winning marriage, so many of those other barriers and forms of discrimination would collapse underneath it.

Evan Wolfson: Well, you may know some gay people, and you therefore may have discovered that gay people don't always agree, right?

When I first started making the case for marriage—first as a law student, and then as a volunteer attorney at Lambda Legal while working my day job as a prosecutor—the movement itself was divided. Not just the public, but even within the LGBTQ community.

After moving to New York from law school, I spent my nights and weekends volunteering at Lambda, doing pro bono legal work, and pushing the idea that we needed a marriage strategy. But like the broader public, Lambda—and really, all the other LGBTQ organizations at the time—was deeply divided on whether marriage was the right fight.

There were really two kinds of resistance within the community.

First, the ideological camp. These were people who believed marriage was a flawed institution—patriarchal, oppressive, outdated—or that as gay people, we shouldn’t be fighting to assimilate. We should be changing the system entirely, not trying to join it. We should be outlaws or revolutionaries, not people asking for inclusion into traditional structures.

This was especially common among the activist circles that made up most of the movement’s leadership at the time. And remember, back then, the movement was much smaller than it is today.

The second camp was strategic. These were people who may or may not have agreed with marriage in principle but felt it wasn’t the right fight at the time. They were worried it would be too far, too fast—a distraction from more urgent battles like fighting AIDS, housing discrimination, workplace protections, and custody rights.

I understood that perspective. I didn’t agree with it, but I understood where it came from.

I wish I could say it was my brilliant, tenacious arguments that changed everyone’s mind. But that wouldn’t be true.

What really changed things—what transformed the conversation—was AIDS.

AIDS shattered the silence around gay lives. It shattered the illusion that we could just be left alone and be okay. Suddenly, it was clear how vulnerable we were to discrimination, to exclusion, to being cut out of our own families and relationships.

People were dying, and their partners—people they had built their lives with—were denied hospital visits, health care, inheritance, even access to their own homes when families swooped in and took everything. You couldn’t ignore it.

AIDS shifted the movement from one that had largely been about “let us be” to one that said, “let us in.”

Peter Fox: I’ve heard that said before, but didn’t AIDS also deepen homophobia? Because now that people realized that gays were everywhere, if you were already homophobic, then it sort of validated the fear that these scary people are everywhere.

Evan Wolfson: Yes, it absolutely got worse before it got better, and not first and foremost in the matter of death and illness and suffering that you know so many of us had to endure, but also in the fear and the stigma and the exploitation by the religious right and by the Republican Party to try to demonize gay people and demonize people with HIV, et cetera, et cetera. Yeah. I mean, absolutely, it got worse before it get better. And one of the lessons for today is as we deal with the current challenges of discrimination and stigma and the assault on democracy and the lawlessness and the corruption of the Trump and Republican regime is it will get worse before it gets better, but as it gets worse, it also shakes people's conscience. It awakens people. It educates people. It gives us the opportunity, if we do our work, to transform the situation. And just as we had to in the face of AIDS and discrimination back in the 80s and 90s, so we now are called to do today.

Peter Fox: What are the current legal challenges that you think we should focus on? A few years ago, the author, Jamie Kirkchick, wrote an article in The Atlantic on how gay rights have been won, which maybe was controversial to the prevailing view in movements in regards to gay right, not the various transgender rights litigations. But what are the challenges that you think need to be focused on, or that there could be pushback in the future? Or are you focusing on legal challenges in a completely different area?

Evan Wolfson: Well, as you know, I’m not on the front lines of the movement anymore. I don’t run an organization, and I’m not working inside any of the legal groups. But I still stay close with the friends and colleagues I worked with, and I get asked for advice sometimes.

I’ve written amicus briefs in recent Supreme Court cases on transgender rights and on pushing back against efforts to carve out religious exemptions for discrimination. But most of my work now focuses on supporting democracy and helping other causes—women’s rights, gun control, climate, healthcare, education. I try to share the lessons that worked in the fight for marriage and help others apply them to whatever frontline work they’re leading.

That said, even though we’ve transformed the place of gay people in American life—and in many countries around the world—there’s still a long way to go.

The full set of legal protections hasn’t been achieved. We still need:

• A federal civil rights law, like the Equality Act, which has passed the House but never made it through Congress.

• Stronger state laws protecting against discrimination—not just in employment, where the Bostock Supreme Court ruling was a major win, but also in public accommodations, housing, and credit.

• Protection not just at large companies but across industries, small businesses, and all the places where discrimination still happens.

There’s a lot of legal work left to do—both defensive and affirmative.

But the goal isn’t just good laws. The goal is good lives.

Our work isn’t finished until every person—gay, trans, non-gay—can live fully and openly without fear of being denied opportunities or facing discrimination. Even the fear of discrimination pushes people into the closet. It cramps lives. It creates depression. It makes people less able to pursue happiness, which is supposed to be part of the American promise.

So the work has to happen on many levels: legal, cultural, familial, spiritual. It’s all the work of a movement.

Peter Fox: Well, thanks so much. Evan, this was so comprehensive and always really enlightening hearing from you.