Why did securing marriage equality move from a marginal consideration within major organizations in the mainstream LGBTQ+ rights movement in the United States in the 1980s to the lynchpin of these organizations’ overall strategy for achieving a broad constellation of legal rights for sexual orientation and gender identity minorities in the 2010s (Eskridge and Riano Reference Eskridge and Riano2020; Frank Reference Frank2017; Solomon Reference Solomon2015)? Why did major organizations seeking to advance LGBTQ+ rights in the United States shift their strategy on the marriage issue from pursuing individual cases in court (and suppressing “premature” litigation) to advancing a “multidimensional advocacy” strategy combining litigation with public education, coalition-building with non-LGBTQ+ groups, fundraising and electioneering in states throughout the nation (Cummings Reference Cummings2017; Cummings and NeJaime Reference Cummings and NeJaime2010)? Why did marriage equality become such a central issue in American media serving the LGBTQ+ community during this period? And why did all of this happen even though marriage bestowed benefits only on some community members (gay and lesbian couples seeking marriage), failed to address many other forms of discrimination facing LGBTQ+ individuals and downplayed many of the more radical aspirations of the LGBTQ+ liberation movement (e.g., Beam Reference Beam, De Filippis, Yarbrough and Jones2018; Brandzel Reference Brandzel2005; DeFilippis Reference DeFilippis, DeFilippis, Yarbrough and Jones2018; Ettelbrick Reference Ettelbrick1989; Polikoff Reference Polikoff1993; Spade Reference Spade2015)?
Early law and society research on legal advocacy around same-sex marriage often examined the matter within the scholarly debate whether “impact litigation” brought by activist lawyers could bring lasting benefits for members of marginalized communities (e.g., Keck Reference Keck2009; Klarman Reference Klarman2005; Reference Klarman2013; Rosenberg Reference Rosenberg2008). More recent work has sited lawyering around marriage equality within the context of broader LGBTQ+ social movement activism (Cummings Reference Cummings2018). This research has emphasized that – contra claims by critics (e.g., Klarman Reference Klarman2005; Rosenberg Reference Rosenberg2008) – LGBTQ+ lawyers never relied exclusively on impact litigation to advance marriage equality in the United States, but instead viewed litigation as only one tactic among many (legislative lobbying, grassroots organizing, public education, media work and so forth) to be used in coordination with broader LGBTQ+ social movements to accomplish their goals (e.g., Cummings Reference Cummings2017; Reference Cummings2018; Cummings and NeJaime Reference Cummings and NeJaime2010; Eskridge Reference Eskridge2002; Eskridge and Riano Reference Eskridge and Riano2020). However, while this important revisionist work has effectively described multidimensional advocacy around marriage equality in the context of LGBTQ+ legal activism (Cummings and NeJaime Reference Cummings and NeJaime2010), it has not yet fully explained the emergence of marriage equality as a top movement priority or accounted for the institutionalization of multidimensional advocacy as the broadly endorsed means for achieving this objective. What is needed is a theoretically informed explanation that avoids flattening within-movement conflicts or making multidimensional advocacy for marriage equality an inevitable response either to constituent demands or to external political, social or economic pressures.
In this article, we focus on explaining the ascendancy of marriage equality, and the rise of multidimensional advocacy as the strategy for achieving it, in professional LGBTQ+ legal advocacy in the United States over the past four decades. Our research highlights the pivotal contributions of Evan Wolfson, a lawyer and advocate with Lambda Legal and Freedom to Marry. Combining an explaining-outcomes process tracing case study (Beach and Brun Pedersen Reference Beach and Brun Pedersen2016) of Wolfson’s innovations within the mainstream LGBTQ+ rights movement in the United States and a quantitative content analysis of a unique dataset of articles in LGBTQ+ media between 1989 and 2008, we find that Wolfson acted as a political and strategic entrepreneur within the professional LGBTQ+ movement (e.g., Carpenter Reference Carpenter2001; Kingdon Reference Kingdon2011; Riker Reference Riker1986; Schickler Reference Schickler2001; Schneider and Teske Reference Schneider and Teske1992; Sheingate Reference Sheingate2003). In this role, Wolfson developed influential new arguments, built powerful new organizations, brokered compromise agreements among diverse factions, attracted new sources of funding and organizational support and assisted local grassroots advocates throughout the nation. Wolfson’s position at the intersection of multiple LGBTQ+ organizations and engagement in advocacy at multiple levels of American government allowed him to serve as a central coordinating figure among various LGBTQ+ rights organizations, pro-LGBTQ+ grantors and ally organizations in the United States. This was particularly true after 2001 and his formation of Freedom to Marry, his national marriage equality organization. This provided him special leverage to promote the cause of marriage equality – and his distinctive perspective of how to achieve it – among these groups. Moreover, as we show, through these activities Wolfson successfully captured the attention of the highest circulation LGBTQ+ periodical of the day, The Advocate, enabling him to elevate the issue of marriage in the broader LGBTQ+ community in the United States.
Yet even as Wolfson’s political and strategic entrepreneurship advanced the interests of gay and lesbian couples enthusiastic about marriage, it downplayed other issues of concern to LGBTQ+ people and marginalized the more radical aspirations of some members of the LGBTQ+ community in the United States. Wolfson was visionary in insisting that marriage should be available to anyone regardless of sexual orientation, but his politics were conservative insofar as they valorized the traditional institution of marriage, prioritized the integration of LGBTQ+ Americans into “mainstream” American culture and emphasized consensus-building rather than confrontation in LGBTQ+ advocacy. In the end, Wolfson’s entrepreneurship sought to advance LGBTQ+ rights while simultaneously reaffirming conventional social institutions and norms in American society (Spade Reference Spade2013; Reference Spade2015) and strengthening ties with mainstream political and cultural institutions, such as philanthropic grantors (Francis Reference Francis2019) and social science researchers (Rosenfeld Reference Rosenfeld2021). In this sense, Wolfson’s entrepreneurship in the LGBTQ+ advocacy movement parallels patterns in other social movements – such as the women’s movement and the civil rights movement – that have also tended to prioritize the interests and values of relatively privileged subgroups (e.g., Breines Reference Breines2006; Crenshaw Reference Crenshaw1989; Strolovitch Reference Strolovitch2008).
This study advances recent scholarship on the “social movement turn in law” (Cummings Reference Cummings2018) by linking it to research on political entrepreneurship, to theorize processes by which individual legal advocates work within movements to raise attention to particular issues and disseminate multidimensional advocacy strategies, thus giving rise to new forms of organization and advocacy. Our research is also in conversation with recent work (Beck Reference Beck2022; Chua Reference Chua2015; Reference Chua2016; Heyer Reference Heyer2015; Steinman Reference Steinman2005; Vanhala Reference Vanhala2018a; Reference Vanhala2018b) exploring how individuals and groups creatively adapt legal ideas and strategies to change how their communities understand law and advocate for their rights. Finally, our research adds to the historiography of the emergence of marriage equality as a top priority within the LGBTQ+ advocacy movement (e.g., Ball Reference Ball2010; Eskridge Reference Eskridge1993; Eskridge and Riano Reference Eskridge and Riano2020; Klarman Reference Klarman2013; NeJaime Reference NeJaime2014) by exploring how individual entrepreneurship contributed to this development in the United States.
Multidimensional advocacy in legal activism for marriage equality
Prior to Obergefell v. Hodges (2015), in which the U.S. Supreme Court declared that the Fourteenth Amendment’s Due Process and Equal Protection clauses protected gay and lesbian couples’ right to marry, prominent legal scholars and social scientists (Klarman Reference Klarman2005; Rosenberg Reference Rosenberg2006; Reference Rosenberg2008) sharply criticized LGBTQ+ legal advocates’ efforts to achieve marriage equality in the United States. According to this perspective, advanced most forcefully by Rosenberg (Reference Rosenberg2006; Reference Rosenberg2008), LGBTQ+ legal advocates relied heavily, if not exclusively, on impact litigation to achieve their objectives, straining courts’ enforcement capacities and spurring powerful political backlash from conservative activists, Republican (and some Democratic) elected officials and the mass public. Although Rosenberg’s primary objective is to assess the influence of litigation on social outcomes such as elite support, media attention and public approval, he repeatedly – though generically – refers to “Progressives,” “proponents,” “litigants,” and “activists” as drivers of (in his view untimely) lawsuits that sparked backlash and thereby set back the movement for marriage equality (Rosenberg Reference Rosenberg2008: 339–340, 342–43, 347, 416). In perhaps his most explosive claim, Rosenberg (Reference Rosenberg2006: 797) argued that “… the progressive agenda was hijacked by a group of elite, well-educated and comparatively wealthy lawyers who uncritically believed that rights trump politics and that successfully arguing before judges is equivalent to building and sustaining political movements.” “The battle for same-sex marriage would have been better served if [LGBTQ+ legal activists] had never brought litigation, or had lost their cases,” he concluded (Rosenberg Reference Rosenberg2006: 813).
Other scholars have argued that Rosenberg’s characterization of the strategies of LGBTQ+ legal advocates are partial and potentially misleading (e.g., Andersen Reference Andersen2009; Cummings and NeJaime Reference Cummings and NeJaime2010; Purvis Reference Purvis2009).Footnote 1 Whereas Rosenberg presents LGBTQ+ legal activists as naïve political actors who placed unwarranted hope in the power of litigation to bring about social change, work by scholars such as Purvis (Reference Purvis2009), Keck (Reference Keck2009), Cummings and NeJaime (Reference Cummings and NeJaime2010), NeJaime (Reference NeJaime2014), Frank (Reference Frank2017) and Eskridge and Riano (Reference Eskridge and Riano2020) has carefully documented that LGBTQ+ legal activists were aware of the limitations of litigation and used a wide variety of strategies in pursuit of marriage equality. In particular, Cummings and NeJaime (Reference Cummings and NeJaime2010), NeJaime (Reference NeJaime2014) and Cummings (Reference Cummings2017) have shown that LGBTQ+ activists deployed what Cummings and NeJaime (Reference Cummings and NeJaime2010: 1242) call “multidimensional advocacy” – “advocacy across different domains (courts, legislatures, media), spanning different levels (federal, state, local), and deploying different tactics (litigation, legislative advocacy, public education)” – to advance the cause of marriage equality. This research provides an important corrective to Rosenberg’s analysis by revealing the diversity and sophistication of LGBTQ+ legal activists’ techniques in pursuit of their objectives.
At the same time, however, this important work leaves vital matters undertheorized. Rosenberg provocatively titles the concluding section of his discussion of LGBTQ+ legal advocacy on same-sex marriage in the United States, “When Will They Ever Learn” (Reference Rosenberg2008: 415). Because it seeks to challenge Rosenberg’s simplistic characterization of LGBTQ+ legal activists’ priorities and strategies, research by Cummings and NeJaime, Eskridge and Riano, Purvis and others focuses on carefully documenting and describing the multidimensional advocacy tactics of these figures. While this work was essential, it gives comparatively little attention to theorizing the processes or mechanisms that explain the emergence of marriage equality as a top LGBTQ+ legal movement priority in the United States or the institutionalization of multidimensional advocacy as the strategic template of the movement. Now that there is fairly strong scholarly consensus that LGBTQ+ legal activists used a sophisticated multidimensional advocacy strategy to advance the cause of same-sex marriage, the time has come to provide a theoretically informed explanation of its emergence and institutionalization; to demonstrate, in other words, how LGBTQ+ activists learned to build a successful movement for marriage equality in the United States and how entrepreneurs played a central role in that process.
Political entrepreneurship in multidimensional advocacy for marriage equality
Over the last few decades, scholars across many fields, including political science, sociology, organization studies, economics and sociolegal studies, have studied the role of entrepreneurs (Schneider and Teske Reference Schneider and Teske1992: 737; for reviews see, e.g., Leca et al. Reference Leca, Battilana and Boxenbaum2008; Sheingate Reference Sheingate2003). This research highlights the creative agency of individual actors in the social, political and legal arenas and illustrates how this innovative activity contributes to change in social organizations, political institutions and legal arrangements. According to Sheingate (Reference Sheingate2003: 188), entrepreneurs engage in three central tasks. First, entrepreneurs “shape the terms of…debate: fram[ing] issues, defin[ing] problems, and influenc[ing] agendas.” Second, entrepreneurs are sources of innovation, asserting new ideas, altering strategies and tactics, transforming organizational routines and norms and reshuffling political coalitions (Riker Reference Riker1986; Shepsle Reference Shepsle2003). Finally, entrepreneurs find ways to “consolidate innovations into lasting change,” leaving “transformative effects on politics, policies, and institutions” (see also, e.g., Carpenter Reference Carpenter2001; Kingdon Reference Kingdon2011; Riker Reference Riker1986; Schickler Reference Schickler2001; Schneider and Teske Reference Schneider and Teske1992; Schneider et al. Reference Schneider, Teske and Mintrom2011).
Often, entrepreneurship is enabled by moments of uncertainty, instability and crisis (Fligstein Reference Fligstein2001; Greenwood and Suddaby Reference Greenwood and Suddaby2006), which – by throwing existing beliefs, routines and institutions into doubt – provide opportunities for creative acts of change. Entrepreneurs exploit such “windows of opportunity” (Kingdon Reference Kingdon1995: 166–170) to indict prevailing ideas and arrangements (Skowronek Reference Skowronek1997) and propose new ones that seem to better address the challenges at hand (Creed et al. Reference Creed, Scully and Austin2002). By effectively identifying a problem and its importance, explaining who or what is responsible for it, and proposing the objectives, means and responsibility for addressing it, the entrepreneur sets the stage for action that alters the status quo (Benford and Snow Reference Benford and Snow2000).
Even so, entrepreneurs typically lack the authority or capacity to introduce change by fiat (DiMaggio Reference DiMaggio and Zucker1988). Rather, entrepreneurship is a complex political, social and cultural process in which entrepreneurs must mobilize allies, persuade influential actors and neutralize or defeat opponents to achieve their goals (Carpenter Reference Carpenter2001; Reference Carpenter2010; Fligstein Reference Fligstein2001), all while recognizing the shifting tides and opportunities of the moment (Kingdon Reference Kingdon1995). Effective entrepreneurs win support for their objectives by demonstrating “social skill” (Fligstein Reference Fligstein2001) – that is, effectiveness in navigating complex social relations and cultures.
Three techniques are particularly effective. First, by incorporating familiar ideas, organizational forms and political or legal institutions into their innovations, entrepreneurs make their ideas more socially acceptable, and thus more likely to be taken up by others (Campbell Reference Campbell, Magnusson and Ottosson1997; Carpenter and Sin Reference Carpenter and Sin2007; Douglas Reference Douglas1986; Gamson Reference Gamson1992; Greenwood and Suddaby Reference Greenwood and Suddaby2006; Leca et al. Reference Leca, Battilana and Boxenbaum2008). Second, entrepreneurs recruit allies to their cause by strategically tailoring their innovations to resonate with the interests and identities of potential supporters, thereby further encouraging take-up and dissemination (Chua Reference Chua2015; Creed et al. Reference Creed, Scully and Austin2002). And third, as Carpenter has argued at length (Reference Carpenter2001; Reference Carpenter2010), entrepreneurs build confidence among potential allies by developing their innovations in an incremental fashion. An incremental approach allows political and strategic entrepreneurs to demonstrate the feasibility of their innovations and bring in stakeholders, while at the same time avoiding catastrophic errors that could alienate potential supporters and mobilize political opponents.
Of course, political entrepreneurs are not all-powerful. An important, though implicit, throughline in our discussion of creative recombination, brokerage with varied interests, and incremental innovation is that political entrepreneurs work within pervasive systems of values, interests and organizations that inevitably limit the scope of innovations. A related observation – though not one highlighted in the literature on political entrepreneurship – is that entrepreneurs may tend to advance the interests and values of relatively privileged subgroups within movements. A significant literature in the study of social movements (e.g., Crenshaw Reference Crenshaw1989; Smooth Reference Smooth2011; Strolovitch Reference Strolovitch2008) notes that movements commonly foreground the interests of powerful subgroups. We find it quite plausible that a partial explanation for this regularity is the tendency of political entrepreneurs to emerge from, and advance the interests of, these privileged subgroups. Finally, because entrepreneurs representing marginalized groups are often dependent on privileged groups in society for patronage and resources, they may be constrained from adopting agendas and strategies that directly challenge the interests of the powerful (Francis Reference Francis2019). Given these constraints, political entrepreneurs are often “conservative revolutionaries” who reaffirm existing values and interests even as they alter them (Landy and Milkis Reference Landy and Milkis2000; Skowronek Reference Skowronek1997).
Sociolegal research has highlighted the role of entrepreneurs in diverse legal advocacy movements. In a study of American Indian tribal leaders’ efforts to gain recognition of their sovereign political status, Steinman (Reference Steinman2005) shows how these leaders used “institutional entrepreneurship” – including exploiting the multiplicity and complexity of laws touching tribal governance and mobilizing resources inside the state – to assert the sovereign status of their tribes. In her study of Myanmar’s sexual orientation and gender identity movement, Chua (Reference Chua2015) shows that entrepreneurial local activists creatively adapted human rights concepts to resonate with local cultural and religious beliefs to cultivate oppositional consciousness and empowerment among sexual orientation and gender identity minorities and thereby inspire collective action despite repressive conditions. Finally, Vanhala (Reference Vanhala2018a), in a study of legal mobilization of environmental groups in Finland, France, Italy and the United Kingdom, highlights the role of “strategy entrepreneurs,” who introduced new strategies and tactics to their organizations, to account for variation in groups’ decisions to mobilize the law despite similar opportunity structures.
Our work builds particularly on Vanhala’s (Reference Vanhala2018a; Reference Vanhala2018b) emphasis on strategy entrepreneurs’ central role in producing change in the legal strategies and tactics of advocacy organizations. However, whereas Vanhala emphasizes how strategy entrepreneurs may exploit organizational cultures and legal regimes to reorient their organizations toward litigation, our research highlights the role entrepreneurs may play in shifting their organizations away from litigation toward multidimensional advocacy strategies that incorporate electoral, lobbying and consciousness-raising tactics. Additionally, our work centers the role of strategy entrepreneurs in leading their organizations to reorder their issue agendas – spurring heightened attention to a previously ignored issue and downgrading the importance accorded to other issues – as well as their strategies and tactics. Third, our research shows how entrepreneurs may extend their agendas into the broader communities they (purport to) represent through advocacy in specialized media serving these communities. Last, our research is attentive to the distributive implications of entrepreneurship within groups – that is, how entrepreneurship may lead to the prioritization of the interests and values of powerful subgroups (and/or influential patrons) at the expense of weaker subgroups.
Methods
We advance our argument with a multi-method research design. One arm of our research design is a quantitative analysis of a unique dataset of articles focused on legal issues and published in The Advocate, the longest-running periodical serving the LGBTQ+ community in the United States (Streitmatter Reference Streitmatter1993). During the period under analysis, The Advocate could be found coast-to-coast, with a peak circulation of 140,000, making it the largest of the country’s 300 LGBTQ+ publications (Abelson Reference Abelson2000; Streitmatter Reference Streitmatter1993). Attesting to its importance, The Advocate receives coverage in prominent mainstream media outlets like the New York Times and The Wall Street Journal (e.g., Gadd Reference Gadd2012). Although The Advocate focused on issues of primary relevance to gay men in its early years, during the period of study here (1989–2008), its scope expanded to cover issues of relevance to the gay and lesbian community more broadly. For example, in 1990 it altered its subheader from “The National Gay Magazine” to “The National Gay and Lesbian Magazine” (Sender Reference Sender2001). However, The Advocate has been criticized for privileging the positions of gay men and lesbians, while overlooking issues important to other members of the LGBTQ+ community (Gadd Reference Gadd2012).
To obtain our unique collection of articles from The Advocate, we used the ProQuest LGBT Magazine Archive, which maintains comprehensive coverage of articles appearing in that journal, and searched for any articles appearing between 1989 and 2008 in which the keyword “court” appeared.Footnote 2 In doing so, we capture discussions related to legal strategies from the earliest years of Wolfson’s career to the latest years for which articles were available for The Advocate. In total, we have 2,564 articles over the timespan.
Next, using a combination of quantitative content analysis techniques, we investigate empirically the prominence of Evan Wolfson in reporting on legal issues in LGBTQ+ media. First, using named entity recognition and co-occurrence network techniques, we track mentions of Wolfson and other actors across two decades of LGBTQ+ media discussing the courts. This initial quantitative content analysis demonstrates that Wolfson is often discussed and a central actor with respect to LGBTQ+ media coverage, and that – unlike many others – Wolfson remains a consistent presence throughout those two decades.
We also demonstrate that Wolfson is closely connected in this reporting with the topic of marriage equality and show that attention to Wolfson and marriage equality in LGBTQ+ media increased in tandem with Wolfson’s development (discussed in our qualitative case study, explained below) of new ideas and organizational forms to promote this agenda. We do this by leveraging structural topic models (STMs), an approach for estimating the thematic structure of a corpus of documents and the association of individual documents with the different themes (or topics) (Roberts et al. Reference Roberts, Stewart, Tingley and Airoldi2013). Our use of STM allows us to incorporate document-specific variables in the estimation of the structure of the topics and to examine the relationship between those variables and the topics. This is crucial for our research design because Wolfson’s contributions to the legal consciousness of the LGBTQ+ community were centrally connected with one variable: time. As we will argue in what follows, Wolfson gradually expanded and centralized his advocacy, eventually leading a well-funded organizational effort to advance marriage equality through public education, legislation and litigation. Therefore, we would expect that Wolfson’s contributions to articles would also change over time, with increases in discussions of marriage equality and declines in attention to other legal topics that Wolfson had worked on. Moreover, given the difference in the character of his advocacy that we document below – moving from litigation-based efforts to multidimensional advocacy – we expect that, as Wolfson believed, issues with a broader support structure might enable more sustained attention. The STM that we present in this article allow us to assess the evidence for these expectations in a systematic fashion in our collection of articles from The Advocate.
To do this, our STM focuses on a corpus limited to only those articles where Wolfson was specifically mentioned. The resulting corpus is 85 documents. From the texts, we remove capitalization, numbers, punctuation and a standard list of frequently occurring words (e.g., “the,” “a”). For purposes of estimating the STM, we retain only those words occurring in at least 5 percent of documents. The resulting corpus has 1,965 unique words across the 85 documents. While topic models are generally unsupervised (i.e., they are estimated without significant human guidance), they do require specification of the number of topics. Given the relatively small number of articles, we explored alternative relatively small settings for the number of topics (4, 6, 8 and 10 topics, respectively) and settled on a topic model with 6 topics based on standard diagnostics available in the Online Appendix.
The other arm of our research design is an explaining-outcomes process tracing case study (Beach and Brun Pedersen Reference Beach and Brun Pedersen2016) of Wolfson’s entrepreneurship. Although the case study is organized in the form of a historical narrative, it is tightly focused on substantiating, via the accumulation of qualitative evidence, the various processes of entrepreneurship. This includes the formulation and circulation of new ideas, development of new organizational forms, establishment and maintenance of political coalitions, incremental innovation and so forth. It shows how Wolfson influenced (1) the endorsement by mainstream American LGBTQ+ advocacy organizations of marriage equality as a top priority; and (2) the adoption by these organizations of multidimensional advocacy as the consensus strategy for achieving this objective (e.g., Mahoney Reference Mahoney2015).
Following recent guidance on evidence acquisition for qualitative research (Fairfield and Charman Reference Fairfield and Charman2022), we take a pragmatic approach, exploiting the best evidence we can muster to document and substantiate the processes of Wolfson’s entrepreneurship we specify in our theoretical argument. Our research leverages diverse sources of evidence, including oral history interviews, contemporaneous documents, archival information, news reports and secondary literature. One critical source was the Freedom to Marry Oral History Project undertaken by the Bancroft Library at the University of California Berkeley, which produced 23 interviews (and nearly 100 h of recordings) with Evan Wolfson and other major players in the LGBTQ+ legal advocacy movement. A second important source of contemporaneous evidence was the website of Freedom to Marry, Wolfson’s marriage equality advocacy organization, which archives hundreds of documents from the organization’s history, including detailed historical information about the organization’s activities and budgets between 2003 and 2015. We were also able to obtain insights on Wolfson’s activities from dozens of relevant contemporaneous documents from the archived websites of Freedom to Marry and Lambda Legal, which are maintained by the Internet Archive; as well as from nearly 20 of Wolfson’s own published and unpublished legal writings. Further evidence was taken from the high-quality secondary literature on the LGBTQ+ legal movement, including Andersen (Reference Andersen2009), Solomon (Reference Solomon2015), Frank (Reference Frank2017) and Eskridge and Riano (Reference Eskridge and Riano2020).
Our research proceeds as follows. First, we demonstrate the prominence and centrality of Wolfson in coverage of law and courts across two decades in The Advocate, the longest-running and largest LGBTQ+ magazine in the nation (Streitmatter Reference Streitmatter1993). To do so, we use named entity recognition models to identify all mentions of people from articles in The Advocate, then analyze how frequently those individuals are mentioned, how central they are to the network of people being discussed in the space of law and courts and how that prominence changes over time. Second, we use an explaining-outcomes process tracing case study to document and substantiate Wolfson’s evolution as an entrepreneur. Our approach leverages the diverse qualitative evidence described above to document Wolfson’s influence as an entrepreneur in raising attention to the issue of marriage equality in the LGBTQ+ advocacy movement in the United States and coordinating major movement actors around a multidimensional advocacy strategy. Finally, building off these earlier sections, we return to our quantitative content analysis of articles in The Advocate, using STM to show how articles discussing Wolfson in The Advocate more frequently discuss the topic of marriage equality, following a timeline that parallels our qualitative narrative.
The quantitative case for Wolfson’s significance as an entrepreneur for marriage equality
We begin by documenting just how prominent Wolfson was in the legal spaces of the American LGBTQ+ community, using the corpus of articles from The Advocate we have collected. We begin our analysis by quantifying the prominence of Wolfson relative to other actors across this entire series of articles. Using named entity recognition statistical models trained to identify names (i.e., “Evan Wolfson,” “Pat Robertson”) from unstructured text, we identified all mentions of people across the entire corpus of articles.Footnote 3 In Figure 1, we plot the counts for all people mentioned more than 20 times in The Advocate articles including references to courts.
Figure 1. Total mentions of people across articles in The Advocate.
The two most mentioned actors – former presidents Bill Clinton and George W. Bush – are perhaps unsurprising given their central political roles. Moreover, other former presidents and presidential nominees are near the top of the list. Given the primacy accorded to presidents as the heads of their political parties and as pivotal legislative and administrative leaders, this fits with standard understandings of political coverage (Eshbaugh-Soha and Peake Reference Eshbaugh-Soha and Peake2011). We also observe several prominent opponents of LGBTQ+ protections regularly mentioned (e.g., Jesse Helms, Pat Robertson), as well as celebrities (e.g., Ellen DeGeneres, Jenny Jones) and Barney Frank, the congressman from Massachusetts who publicly came out as gay in the 1980s and who served as a tireless advocate of LGBTQ+ rights throughout his career in office. Wolfson stands out among this impressive list of individuals, with a total number of mentions similar to that of the two former presidents at the very top of the list. Thus, it is evident that Wolfson is a very prominent actor in The Advocate’s coverage of legal issues.
The importance of Wolfson in coverage of legal issues in The Advocate is further evident in the co-occurrence of these major actors in articles. To see this, in Figure 2, we plot a visualization of a co-occurrence network.Footnote 4 The result is that the three most prominent actors – former Presidents Clinton and Bush, and Wolfson – are centrally located. Moreover, note the number and magnitude of edges connecting these three central actors to the remaining actors in the set. These patterns reveal that Wolfson is routinely featured in articles that also feature other prominent allies and adversaries of the mainstream LGBTQ+ community. In all, we have strong evidence of the centrality of Evan Wolfson in coverage of the courts in The Advocate.
Figure 2. Co-occurrence network of prominent actors in The Advocate articles discussing courts.
Importantly, Wolfson achieved this preeminence not by being the singular focus at a particular point in time, as in the case of the former presidents, but by being a consistent presence across the entire 1989–2008 period. In Figure 3, we plot the number of mentions (y-axis) over time (x-axis) for our top eight most prominent actors across the entire time series. For many of the other actors, coverage is more episodic, with big peaks during particularly notable periods. For instance, former Presidents George W. Bush and Bill Clinton are covered more extensively around elections; Jesse Helms and Pat Robertson are featured more extensively in the earlier period, when they were most politically active; and Matthew Shephard, the victim of a hate-motivated murder, and Sharon Bottoms, who lost custody of her child through the Virginia courts primarily because she identified as a lesbian, are covered mostly around the time of relevant legal proceedings. In contrast, Wolfson is regularly mentioned in 5 to 10 articles a year across nearly the entire 20 years under study, further demonstrating his prominence.
Figure 3. Mentions of most prominent actors over time.
We conclude that Wolfson was a central figure in news coverage related to LGBTQ+ rights throughout the 1989–2008 period in the highest circulation periodical serving the LGBTQ+ community in America. In the remainder of the article, we trace how this prominence reflects Wolfson’s influence as a political entrepreneur in the mainstream LGBTQ+ rights movement, first, through an in-depth historical qualitative analysis; and second, through an STM content analysis of the news articles in our dataset. We begin with our historical analysis and detail throughout the growth and development of Wolfson’s interest in marriage equality and the evolution of his thinking toward multidimensional advocacy.
Wolfson’s early interest and advocacy in marriage equality
Wolfson was born in 1957 and raised by Jewish parents in a suburb of Pittsburgh, Pennsylvania (Rapp Reference Rapp2010). After graduating from Yale in 1978, he joined the Peace Corps, gaining his first experience advocating, here for education in a village in Togo, West Africa. During his tenure in the Peace Corps, Wolfson encountered several individuals who would likely identify as gay in a Western cultural setting but felt culturally and socially constrained from doing so in their own communities. During this time, Wolfson also began to have romantic relationships with men (Wolfson Reference Wolfson2017: 32). Wolfson subsequently enrolled in Harvard Law School (Funk Reference Funk2018) and revealed his sexual orientation to several close friends (Out Leadership 2022). During his studies at Harvard, Wolfson joined the first LGBTQ+ advocacy organization on campus, the Committee on Gay and Lesbian Legal Issues (Birbrair Reference Birbrair2015).
At Harvard Law, Wolfson’s interest in LGBTQ+ advocacy culminated in his third-year thesis, which advanced a legal argument for same-sex marriage. The thesis holds historical significance as possibly the first comprehensive academic case for marriage equality, introducing central ideas Wolfson would later champion in his career (Funk Reference Funk2018). Wolfson argued that marriage is a fundamental human and constitutional right for all regardless of sexual orientation. He maintained that government enforcement of the “morality” preferred by the majority infringes on the Constitution’s commitment to individual liberty and choice (Wolfson Reference Wolfson1983: 69). However, in addition to providing technical legal arguments, Wolfson’s thesis presented broader political and social claims on behalf of the freedom to marry. An extended section of the thesis reviewed historical evidence and contemporary scientific research that, Wolfson argued, “compels a rejection of sexualist stereotypes and prejudices regarding people leading gay lives” (Wolfson Reference Wolfson1983: 4). Additionally, he reviewed social scientific research documenting the evolution of marriage from a legal and economic institution dedicated to successful procreation to a voluntary partnership centered on self-expression and self-exploration (Wolfson Reference Wolfson1983: 31–43).
Wolfson’s thesis exemplified an entrepreneurial approach to marriage equality advocacy by incorporating ideas from various sources to appeal to diverse audiences (e.g., Campbell Reference Campbell, Magnusson and Ottosson1997; Carpenter and Sin Reference Carpenter and Sin2007; Douglas Reference Douglas1986; Gamson Reference Gamson1992; Leca et al. Reference Leca, Battilana and Boxenbaum2008). In doing so, it also reflected Wolfson’s early recognition of the need to build broad support coalitions, a fundamental element of his later strategizing around multidimensional advocacy.
Still, though visionary in some ways, Wolfson’s embrace of the traditional institution of marriage reflected a “conservative revolutionary” (Marc and Milkis Reference Landy and Milkis2000) approach to entrepreneurship on behalf of LGBTQ+ rights that emphasized the similarity, rather than distinctiveness, of LGBTQ+ interests and needs to those of cisgender straight people. Contrary to those who believed that the LGBTQ+ community should challenge conventional, straight institutions and values, Wolfson took for granted that a central objective of LGBTQ+ activism was integration into “mainstream” American society (Rosenfeld Reference Rosenfeld2021). He asserted that
admitting gay individuals who so desire to the social institution of marriage…is an essential step toward the fulfillment of these individuals’ rights and the achievement of social interests. Same-sex marriage is a message of freedom and equality, not to mention love, from the self-identifying participants as well as from society to them and to itself. (Wolfson Reference Wolfson1983: 3–4)
If this approach had the potential to broaden support among non-LGBTQ+ Americans, Wolfson’s endorsement of marriage and focus on love instead of, or in addition to, arguments about rights and discrimination also threatened to antagonize those in the LGBTQ+ community who felt it privileged coupled monogamous relationships, ignored the concerns of more vulnerable LGBTQ+ people and blunted the radical potential of the LGBTQ+ rights movement (e.g., Beam Reference Beam, De Filippis, Yarbrough and Jones2018; DeFilippis Reference DeFilippis, DeFilippis, Yarbrough and Jones2018; Spade Reference Spade2015). We thus see in Wolfson’s earliest writings an emergent difficulty that bedevils many social movements (e.g., Crenshaw Reference Crenshaw1989; Smooth Reference Smooth2011; Strolovitch Reference Strolovitch2008) – a tendency of a new entrepreneurial agenda to challenge, and possibly sideline, the interests and concerns of particularly marginalized groups within those movements.
Wolfson’s pro bono work and emergence as a marriage equality advocate in the mainstream LGBTQ+ movement
After Harvard, Wolfson served as an assistant district attorney in the Kings County District Attorney’s Office in Brooklyn, New York from 1983 to 1988 (Funk Reference Funk2018), before briefly serving in the Office of Independent Counsel investigating the Iran-Contra scandal (Hanania Reference Hanania1996). During this period, Wolfson provided pro bono counsel for Lambda Legal, one of the nation’s premier LGBTQ+ public interest law organizations (Wolfson Reference Wolfson2017: 60–61). This pro bono work provided Wolfson with opportunities to incrementally advance his entrepreneurial project to center marriage equality within the LGBTQ+ legal advocacy movement.
One essential entrepreneurial tactic, particularly early in the entrepreneurial process, is incremental innovation (e.g., Carpenter Reference Carpenter2001). Through such experimentation, entrepreneurs can test new ideas and organizational forms, demonstrate their potential viability and expand their coalitions of support. Wolfson’s pro bono work allowed him to field test legal theories that would later feature centrally in constitutional challenges to marriage equality bans (Hanania Reference Hanania1996). As a member of the legal team representing Michael Hardwick before the U.S. Supreme Court in Bowers v. Hardwick (1986), Wolfson drafted Lambda’s amicus curiae brief, building on the ideas from his Harvard thesis to argue that same-sex intimate relations are protected by the right to privacy, and by the concept of liberty in the Constitution (Lambda Legal Amicus Curiae Brief 1986, i, 13; Wolfson Reference Wolfson2017: 50). Although a majority of the Court rejected these arguments in Bowers – handing the LGBTQ+ movement a devastating loss that nearly led Wolfson to leave the legal profession (Andersen Reference Andersen2009; Heller Reference Heller2015) – the Court would later adopt them in Lawrence v. Texas (2003), overruling Bowers and striking down bans on sodomy; and in Obergefell v. Hodges (2015), recognizing marriage equality.
Moreover, if Wolfson’s innovative legal arguments failed to persuade the Court in the short term, they nonetheless helped Wolfson win new allies, which in turn granted him expanded opportunities for entrepreneurial innovation on behalf of marriage equality. Indeed, Wolfson’s work on the Bowers litigation so impressed Lambda’s legal director, Paula Ettelbrick, that Ettelbrick invited Wolfson to join the organization as a full-time staff attorney in 1989 (Wolfson Reference Wolfson2017: 76). Thus, Wolfson’s early legal theorizing around marriage equality, coupled with his skill as an attorney, opened the door to much more consequential opportunities to influence how one of the most important LGBTQ+ advocacy organizations approached the marriage issue.
Baehr, the Marriage Project and the Freedom to Marry Coalition: getting support for highlighting marriage
When Wolfson joined Lambda as a full-time staff attorney, marriage was not major area of advocacy or litigation there. Not only did the issue seem to pale in significance relative to other areas of anti-LGBTQ+ discrimination and the AIDS crisis, but marriage equality advocacy was actively opposed by prominent Lambda staffers who believed that marriage was a patriarchal institution that failed to provide recognition to diverse family forms and obstructed the radical liberationist promise of the LGBTQ+ rights movement (e.g., Ettelbrick Reference Ettelbrick1989; Frank Reference Frank2017: 83–86).
In the unsympathetic climate toward marriage equality within the LGBTQ+ legal movement of the mid-to-late 1980s, Wolfson engaged in a process of advocacy with multiple audiences and in multiple forums over a prolonged period which is known in the literature on political entrepreneurship as “softening up” and is viewed as a critical precursor to more advanced entrepreneurial efforts (e.g., Kingdon Reference Kingdon2011: 127–131). During this unpromising period, Wolfson advocated – consistently, and sometimes vociferously – that Lambda and other LGBTQ+ organizations make marriage equality a priority, both in private conversations with staff attorneys at Lambda, and in joint organizational strategy meetings, known as the Litigators’ Roundtable. This group included representatives from other major organizations in the American LGBTQ+ advocacy world such as Gay and Lesbian Advocates and Defenders (GLAD), the National Center for Lesbian Rights (NCLR), the National Gay and Lesbian Task Force and the American Civil Liberties Union (ACLU) (Funk Reference Funk2018).
However, reflecting the widespread skepticism toward marriage equality that was prevalent in the LGBTQ+ advocacy movement at the time, these efforts largely fell on deaf ears (Eskridge and Riano Reference Eskridge and Riano2020: 76–77). Indeed, Kate Kendall, an attorney with the NCLR, remembers thinking at the time that “I don’t understand why marriage is a goal we’re pursuing. It seems to me to be very patriarchal and why would we want to pursue a system and thereby aid the patriarchy rather than undermining it” (Kendall Reference Kendall2017: 13). Wolfson’s aggressive advocacy on behalf of marriage equality within Lambda during this period led to serious clashes with senior staff. When the plaintiffs in an early Hawaii marriage equality case – what would ultimately become Baehr v. Lewin (1993) – approached Lambda for legal counsel on the basis of Wolfson’s burgeoning reputation as an advocate of marriage equality (Freedom to Marry 2022a), resistance within Lambda to involvement was so strong that Wolfson was briefly fired due to his vocal criticism of the organization’s refusal to intervene in the case (Frank Reference Frank2017: 94).
However, Wolfson was soon reinstated, and though Lambda (and all of the other LGBTQ +legal organizations in the United States) declined to formally participate in Baehr, Wolfson was authorized by new Executive Director Kevin Cathcart to support the suit, first as amicus curiae and informal advisor to Hawaii civil rights lawyer and lead counsel Dan Foley, and later as co-counsel (Wolfson Reference Wolfson2017: 100). This was an important moment in Wolfson’s political entrepreneurship on behalf of marriage equality, as it allowed him to present in court for the first time his legal theory, drawn from his Harvard thesis, that gay and lesbian people had an equal right to marry free from government interference (Lambda Legal Amicus Curiae Brief 1992: 1). Although the Supreme Court of Hawaii declined to endorse Wolfson’s arguments, it ruled that the state’s ban on same-sex marriage was unconstitutional because it discriminated against same-sex couples on the basis of sex (Eskridge and Riano Reference Eskridge and Riano2020: 89). The ruling was short-lived as voters soon passed a constitutional amendment restricting marriage to heterosexual relationships, but the Court’s decision in Baehr validated Wolfson’s entrepreneurship on behalf of marriage equality, with profound and far-reaching consequences for LGBTQ+ legal and political advocacy.
In the language of research on political entrepreneurship, the victory in Baehr opened a “window of opportunity” (Kingdon Reference Kingdon1995: 166–170) in which Lambda (and the LGBTQ+ advocacy movement more generally) became much more amenable to the legal and political arguments that Wolfson had been attempting to “soften them up” (Kingdon Reference Kingdon2011: 127–131) to for several years. Mary Bonauto, an attorney with GLAD who played a central role in marriage equality litigation, recalls that “It was really when the Hawaii Supreme Court ruled in May 1993 that people said we have to stand up and take notice of this” (quoted in Garrow Reference Garrow2004). Similarly, Barbara Cox, a law professor at California Western School of Law and a member of Freedom to Marry’s Board of Directors, remembers that “The first time I really knew about [marriage] was when the Hawaii litigation started.… [I]t was really the Hawaii litigation [when marriage became possible to imagine]” (Cox Reference Cox2017: 14–15).
This sea change in attitudes in the LGBTQ+ legal advocacy movement was reflected in 1994, when Lambda for the first time formally acknowledged the importance of marriage equality in the LGBTQ+ rights struggle by establishing a new Marriage Project tasked with organizing a national movement to promote marriage equality. In recognition of Wolfson’s successful entrepreneurship of the issue in Baehr, Lambda appointed Wolfson as director of the new Project (Eskridge and Riano Reference Eskridge and Riano2020: 90; Wolfson Reference Wolfson2017: 107).
With access to new resources and organizational structure, the Marriage Project insisted on a multidimensional advocacy (Cummings and NeJaime Reference Cummings and NeJaime2010) approach to marriage equality activism. Far from naively asserting that impact litigation would carry the day for same-sex marriage, as Rosenberg (Reference Rosenberg2006; Reference Rosenberg2008) has suggested, Wolfson (Reference Wolfson1997) called on marriage activists to organize locally and at the state level to do electioneering, lobbying and public education work, declaring “We [must] ask for support from non-gay people, organizations, religious leaders, politicians, and celebrities. Begin with the friendly, who still need to be asked, and move outward to those who may not say yes the first time, but who can be prompted to begin their own process toward fairness …”
Consistent with this call, the Marriage Project undertook diverse advocacy activities during the mid-to-late 1990s. To be sure, some of the Marriage Project’s activities involved participation in impact litigation. For example, Wolfson filed an amicus curiae brief on behalf of Lambda and other civil rights organizations in Baker v. Vermont (1999) (Lambda Legal 2001), the case in which the Vermont Supreme Court held that denying same-sex couples marriage benefits violated the state constitution’s Common Benefits Clause.Footnote 5 Yet Lambda’s participation in Baker was part of a broader lobbying and public education strategy. Before and during the Baker litigation, the Marriage Project worked closely with a newly organized Vermont Freedom to Marry Task Force on “groundwork by local organizers and clergy, who steadily approached non-gay neighbors, churches and organizations to educate them and seek their support” and “team[ing] with many non-gay organizations, clergy, and community leaders to build public support” (Lambda Legal 2000). Wolfson credits this multidimensional organizing work as critical to public and legislative acceptance of civil unions in Vermont (Wolfson Reference Wolfson2017: 122–123).
Meanwhile, the Marriage Project undertook numerous public educational activities to “soften up” (Kingdon Reference Kingdon2011: 127–131) elected officials, judges, opinion leaders and the mass public on the marriage equality issue. At the level of elite opinion influence, the Marriage Project organized sympathetic attorneys, law professors and law clerks to “do mainstreaming work and reach judges through conferences, publications, trainings, and creat[ing] a ‘buzz’” (Wolfson Reference Wolfson1995). At the same time, the Marriage Project undertook various efforts to educate the broader public about marriage equality and gradually normalize LGBTQ+ marriage in American society, helping to create a favorable climate for attitude change (Rosenfeld Reference Rosenfeld2021). One of Wolfson’s core duties as director of the Marriage Project was to serve as the “Paul Revere of marriage,” giving innumerable talks to public audiences and private gatherings of LGBTQ+ activists that “Marriage is Coming” (Freedom to Marry 2022a). To build public awareness and acceptance of the idea of same-sex marriages, Wolfson’s Marriage Project organized an annual “Freedom To Marry Day” involving events in hundreds of cities and towns, including major cities such as New York, Boston, Washington, D.C., Philadelphia, Las Vegas, Los Angeles and San Francisco (Lambda Legal 1997; 1999a). And to recruit allies to the cause of marriage equality – and signal to the mass public that same-sex marriage enjoyed support among influential people, and thus was socially acceptable – the Marriage Project circulated a “Marriage Resolution” that was endorsed by prominent public figures such as Coretta Scott King, Madonna, Meg Ryan and David Crosby, as well as by civil rights organizations such as the ACLU, the National Organization of Women and People for the American Way (Lambda Legal 1999b). Each of these activities reflected the entrepreneurial strategy of “softening up” through incremental educational and persuasive efforts.
In another form of entrepreneurial innovation, Wolfson’s Marriage Project helped establish new organizational forms to advance marriage equality (Carpenter Reference Carpenter2001; Riker Reference Riker1986; Shepsle Reference Shepsle2003). The Project helped organize a loose confederation of like-minded state and local organizations into a National Freedom to Marry Coalition, which included state chapters in California, Hawaii, Massachusetts, New York, Pennsylvania, Vermont and Washington by 2001 (Lambda Legal 2001). State chapters conducted public education and advocacy campaigns within specific states and municipalities to promote marriage and “fight the inevitable state-by-state backlash against the recognition of same-sex marriages” (Lambda Legal 1997). In addition to circulating the Marriage Resolution and coordinating local “Freedom to Marry Day” events, state chapters played a critical role in lobbying and electioneering in state-level struggles such as the Vermont campaign (mentioned above) and the ultimately unsuccessful California fight against legislation to prohibit same-sex marriages in 1999 and 2000 (Lambda Legal 1999a).
Entrepreneurship and elevating multidimensional advocacy in the marriage equality movement
Wolfson’s “Blueprint” for marriage equality and the origins of Freedom to Marry
Countering the excitement surrounding Baehr and the founding of the Marriage Project in the early 1990s, by 2000 the marriage equality movement was in crisis (Andersen Reference Andersen2016). Reacting fearfully to the Hawaii Supreme Court’s initial ruling in Baehr, the U.S. Congress passed, and President Clinton signed, the Defense of Marriage Act of 1996, which prohibited federal recognition of, or provision of benefits to, same-sex couples and allowed states to deny recognition to same-sex marriages performed in another state (Frank Reference Frank2017: 102–112). Two years later, Hawaii voters banned same-sex marriage via referendum by a 69–29 pecent margin, effectively overruling Baehr (Eskridge and Riano Reference Eskridge and Riano2020: 106–112; Hull Reference Hull2001). And beginning in the late 1990s, many states around the country enacted legislative or constitutional prohibitions on same-sex marriage (Keck Reference Keck2009; Rosenberg Reference Rosenberg2008: 658).
As a political entrepreneur, Wolfson sought to exploit this crisis moment to articulate a refined agenda and strategy for the marriage equality movement (Creed et al. Reference Creed, Scully and Austin2002; Fligstein Reference Fligstein2001; Greenwood and Suddaby Reference Greenwood and Suddaby2006; Skowronek Reference Skowronek1997). Wolfson laid out what he called his “Blueprint for the Movement” in the September 2001 issue of The Advocate. In a sharp critique of major American LGBTQ+ advocacy organizations, Wolfson argued that they remained too wedded to a litigation-based strategy to achieve realization of marriage equality. This strategy, even when momentarily successful, left the movement vulnerable to reversal via legislation or referendum (as had been the case in Hawaii after Baehr). Thus, rather than simply “focusing just on one court case or the next legislative battle – or … lurching from crisis to crisis,” Wolfson argued that achieving marriage equality required “focused work to attain a legal breakthrough [on marriage] in one or more states, together with sophisticated national work to create a climate of receptivity” (Wolfson Reference Wolfson2001, emphasis added). These efforts to create a climate of receptivity – most of which would be undertaken within specific state-level campaigns – would be coordinated and supported by a “national resource center” that would help provide overall strategic direction and focus for the movement. Thus, far from being a naïve advocate of impact litigation (as Rosenberg Reference Rosenberg2006; Reference Rosenberg2008 would have it), Wolfson sought in his “Blueprint” to rally marriage equality advocates to a refined and expanded version of the multidimensional advocacy (Cummings and NeJaime Reference Cummings and NeJaime2010) strategy his Marriage Project had advanced in the late 1990s.
Whatever its merits, the “Blueprint” might have been ignored in the mainstream LGBTQ+ advocacy movement but for Wolfson’s success in winning financial backing from the Evelyn and Walter Haas Jr. Fund to build the “national resource center” that would coordinate the campaign for marriage equality. Although the Haas Fund had little previous involvement in LGBTQ+ advocacy, it had recently committed to supporting LGBTQ+ rights (Soskis Reference Soskis2018; Sweeney Reference Sweeney2017: 55). Exhibiting the distinctive awareness of opportunity of the political entrepreneur (Sheingate Reference Sheingate2003), Wolfson seized the moment. Leveraging the experience, credibility and achievements of the Marriage Project, Wolfson told Haas program officers that “if you really want to make a difference [on LGBTQ+ rights], what you really ought to do is support a campaign to win the freedom to marry” (Wolfson Reference Wolfson2017: 131). Impressed with Wolfson’s arguments and track record, Hass provided its first ever marriage equality grant – in the amount of $2.5 million, perhaps the largest single grant any LGBTQ+ advocacy organization had received to date – to fund Wolfson’s Freedom to Marry, a national strategic campaign to carry out the “Blueprint” (Proteus Fund 2015:2).
In retrospect, we can see that Wolfson’s Marriage Project of the 1990s represented a form of incremental entrepreneurial innovation (Carpenter Reference Carpenter2001) – a demonstration project that, by providing promising evidence of success, convinced the Haas Fund of the Project’s feasibility and thus encouraged the funder to provide Wolfson with the resources needed to expand the Project into the more powerful, independent national organization of Freedom to Marry in the 2000s and 2010s (Wolfson Reference Wolfson2017: 143). Indeed, from 2004 to 2009, Freedom to Marry raised revenues – mostly from private foundations and individual gifts – of roughly $1.2–1.5 million per year; and from 2010 to 2015 posted annual revenues of $2.5 million or more (Freedom to Marry 2022b).
While there is no reason to believe Wolfson had an unsavory purpose, it is important to note that – especially from 2003 on – he possessed resources not enjoyed by less-advantaged LGBTQ+ advocates. This financial advantage granted him enhanced leverage to continue to shift the conversation away from issues that might have been preferred by advocates with fewer resources in hand and toward the issue of marriage equality. Although it is unlikely that this reflected funder “capture” of the movement (Francis Reference Francis2019), because Wolfson came to Haas with the proposal to support marriage equality, the Haas grant likely reinforced the emergent pattern in which marriage equality tended to crowd out other LGBTQ+ issues, such as gender identity-based discrimination in housing and employment or anti-transgender violence.
Using entrepreneurial “social skill” to win support among LGBTQ+ advocacy organizations
Wolfson possessed both a comprehensive vision and substantial funding, but he still faced skepticism among leaders of major LGBTQ+ advocacy organizations about making marriage equality a central movement priority. In this difficult context, Wolfson demonstrated the “social skill” (Fligstein Reference Fligstein2001) of the political entrepreneur. By carefully working to build relations of trust, collegiality and shared purpose with other LGBTQ+ advocates, Wolfson smoothed the acceptance by many (though not all) activists of the marriage equality agenda during the 2000s.
Wolfson demonstrated this “social skill” in several ways. First, in a bid to address other LGBTQ+ advocates’ anxieties about competition for status and resources (Sweeney Reference Sweeney2017: 53; Wolfson Reference Wolfson2017: 156–157), Wolfson highlighted the distinctive – and transitory – nature of Freedom to Marry as an organization. In conversations with LGBTQ+ leaders, Wolfson stressed that “[Freedom to Marry] would not displace or duplicate what others were doing … Freedom to Marry did not need to litigate. I was not trying to create another litigation organization. I was trying to create an organization that would spur the everything else that would allow litigation … to succeed” (Wolfson Reference Wolfson2017: 156–157).
Second, to lend credibility to this promise, Wolfson deliberately organized Freedom to Marry to carry out distinctive tasks that complimented and supported, rather than duplicated, the activities of other major LGBTQ+ organizations or state and local LGBTQ+ activists. According to Scott Davenport, who served as Chief Operating Officer for Freedom to Marry, the organization operated in significant part as a “business-to-business kind of firm,” providing “support, direction, strategic advice, materials, whatever, to other organizations that were [already] doing the work” of marriage equality advocacy at the state and local levels (Davenport Reference Davenport2017:36). To this end, Freedom to Marry offered resources, including press kits, templates for campaign materials and analyses of public opinion surveys, which could be used by state and local partners to support their own advocacy campaigns. Freedom to Marry also organized information, training and networking events where state and local partners could learn effective advocacy techniques and share information about their campaigns (Freedom to Marry 2005; 2006; 2007). Such activities were not only intentionally nonthreatening; by providing useful services, Freedom to Marry reinforced interest in and enthusiasm for marriage equality activism at the state and local levels.
Third, Wolfson cultivated goodwill and collaboration in the LGBTQ+ advocacy movement by attending diligently to the most delicate of matters – competition among LGBTQ+ advocacy organizations for foundation and donor support. Each year, Freedom to Marry regranted roughly a quarter of its total revenue – ultimately, more than $15 million between 2003 and 2015 – to grassroots LGBTQ+ organizations to advance public education, coalition-building and advocacy campaigns around marriage equality in states throughout the nation (Freedom to Marry 2022c). This helped Freedom to Marry win the confidence of other LGBTQ+ organizations, because, in the words of Barbara Cox, a top Freedom to Marry staffer, “people would accept that what we weren’t trying to do was take money from them, but we were trying to support what they were doing” (Cox Reference Cox2017: 23).
Fourth, Freedom to Marry helped expand available resources for LGBTQ+ advocacy by playing a critical role in founding the Civil Marriage Collaborative (CMC), a coordinated foundation funding engine to promote marriage equality envisioned by Quark Software founder and LGBTQ+ rights megadonor Tim Gill, funded by the Gill, Haas, Open Society, Bohnett and Ford Foundations, among others, and housed at the Proteus Fund, in 2004 (Kroll Reference Kroll2017; Soskis Reference Soskis2018: 13). With Wolfson serving as a strategic advisor, the CMC was “a steady funding partner and strategic partner to Freedom to Marry and to other elements of the movement [supporting marriage equality as a top movement priority],” according to Sweeney (Reference Sweeney2017: 60). All in all, CMC donor partners collectively invested more than $153 million to advance marriage equality campaigns in the states between 2004 and 2015 (Proteus Fund 2015; Rockefeller Foundation 2018). The emergence of massive financial investments to promote marriage equality allayed anxieties among LGBTQ+ advocacy organizations about competition for scarce funding and further reinforced the prominence of marriage equality as an issue in LGBTQ+ advocacy circles.
CMC’s role in advancing the marriage equality movement provides additional insights on the “conservative revolutionary” (Landy and Milkis Reference Landy and Milkis2000) character of entrepreneurship in the marriage equality movement and its tendency to privilege the interests of relatively powerful subgroups within the LGBTQ+ community. Like Wolfson, the wealthy and well-educated donors and foundation leaders who comprised CMC took for granted the desirability of marriage equality and the broader objective of LGBTQ+ integration into mainstream American society (e.g., Proteus Fund 2015). Given that Wolfson and other LGBTQ+ advocates had been prioritizing marriage for years prior to the establishment of the CMC, it is arguably too strong to say that the CMC “captured” the LGBTQ+ legal advocacy movement (Francis Reference Francis2019). However, it is a fair conclusion that, by providing a huge infusion of funding for same-sex marriage advocacy, the CMC further reinforced the marginalization of critics of marriage equality within the community, as well as advocates of alternative issues and concerns.
Brokering agreement and coordinating collective action on the marriage equality agenda
Among their many tasks, political entrepreneurs “resolve collective action problems by assembling and coordinating networks of individuals and organizations that have the talents and resources necessary to undertake change” (Mintrom and Vergari Reference Mintrom and Vergari1996: 422). Between 2004 and 2010, Wolfson undertook these important tasks. Specifically, he played a central political and organizational role in brokering a formal agreement among many LGBTQ+ advocacy organizations that marriage equality should be a top priority, that Freedom to Marry should spearhead marriage equality advocacy and that the organizations should advance marriage equality through Wolfson’s preferred “multidimensional advocacy” (Cummings and NeJaime Reference Cummings and NeJaime2010) strategy.
After the devastating 2004 elections, in which Republican and marriage equality critic George W. Bush was reelected president and bans on same-sex marriages were enacted by popular referenda in 11 states, Tim Gill called Wolfson and other LGBTQ+ advocacy movement leaders to a summit to develop a strategy for advancing marriage equality in the coming years (Eskridge and Riano Reference Eskridge and Riano2020: 337). Although the groups’ strategy statement announced in June 2005, Winning Marriage: What We Need to Do, was written primarily by the ACLU’s Matt Coles, it owed a huge intellectual debt to the “Blueprint” Wolfson had published four years earlier (Solomon Reference Solomon2015: 95), demonstrating Wolfson’s central role in coordinating these organizations around his agenda.
Most fundamentally, Winning Marriage endorsed the position – long advocated by Wolfson – that winning marriage equality was the lynchpin for advancing LGBTQ+ rights in general. “[W]hile what we propose here is a campaign for marriage,” the document asserted, “this campaign is central to achieving all our aims” (Winning Marriage 2005: 2, emphasis added). Obviously, this was – and is – a contested view among members of the LGBTQ+ community, but the document confidently presented the interests of proponents of marriage as representative of the interests of all members of the community.
Furthermore, as Wolfson’s “Blueprint” had previously argued, Winning Marriage endorsed the view that multidimensional advocacy across the federal, state and local governments was essential to achieving marriage equality (Winning Marriage 2005: 6). Echoing the “Blueprint’s” emphasis on public education and political activism as the foundation for achieving marriage equality, Winning Marriage asserted that “[t]o win marriage nationwide, we need to change the way the public thinks about LGBT individuals, couples and families and convince the American people that it is wrong to exclude same-sex couples from marriage” (Winning Marriage 2005: 2). Finally, without naming Freedom to Marry, Winning Marriage tacitly recognized Wolfson’s organization as the central coordinating entity in the fight for marriage equality. In another echo of Wolfson’s (Reference Wolfson2001) “Blueprint,” Winning Marriage argued that the key to achieving marriage equality was a “national campaign” with “a staffed, structured, enhanced collaboration between existing state and national groups, gay and non-gay, working on marriage” (Winning Marriage 2005: 8–9). Given that Freedom to Marry was the only organization that met these criteria, Winning Marriage de facto recognized the organization’s central leadership role in marriage equality advocacy.
After the plan was drafted, major LGBTQ+ organizations, including Lambda Legal, GLAD, the ACLU, the Human Rights Campaign, the NCLR, Freedom to Marry and the Equality Federation, met with Tim Gill and many of the funders of the CMC. As Eskridge and Riano (Reference Eskridge and Riano2020: 338) relate, “with funders as their audience, the different organizations announced their willingness to cooperate and help fund the plan for ‘Winning Marriage’…The ACLU, GLAD, NCLR, and Lambda offered enthusiastic support” (see also Solomon Reference Solomon2015: 96). Winning Marriage thus culminated a development, orchestrated in significant part by Wolfson, in which major LGBTQ+ advocacy organizations assembled and coordinated on an agenda to advance marriage equality as the centerpiece of LGBTQ+ advocacy, via the strategy of multidimensional advocacy. Indeed, these groups, joined by allied organizations, again endorsed the principles in Winning Marriage (in slightly modified form) in 2010 (Hunter Reference Hunter2017: 1688).
Yet, while Winning Marriage ultimately secured the ratification of most of the major LGBTQ+ organizations, there were dissenters who believed that the document elevated marriage at the expense of other issues important to members of the LGBTQ+ community (Eskridge and Riano Reference Eskridge and Riano2020: 338). Winning Marriage acknowledged as much, noting that “Many people in the LGBTQ community would have preferred not to have made marriage a leading issue now.… Some members of the working group that drafted this concept paper are among those people” (Winning Marriage 2005: 13). Thus, again, we note that Wolfson’s entrepreneurship – and the broader network of advocacy organizations and funders of which it was a part – entailed prioritization of issues preferred by some (arguably more privileged) subgroups in the LGBTQ+ community at the expense of the interests of (arguably less powerful) subgroups.
The visibility of Wolfson’s contributions in LGBTQ+ media
In this final section, we build on our historical narrative to demonstrate quantitatively how Wolfson’s work as a political entrepreneur manifested in the public eye. To do so, we examine how the marriage equality movement was covered in The Advocate, America’s oldest and largest LGBTQ+ publication (Streitmatter Reference Streitmatter1993). This exercise advances our arguments about Wolfson’s entrepreneurship by shedding light on how Wolfson’s ideas and work percolated in the longest-running and highest circulation magazine serving the LGBTQ+ community in the United States, thus potentially influencing how readers – ordinary LGBTQ+ Americans – might understand legal issues relating to marriage.
Using the STM discussed in the Methods section, in Figure 4 we plot the expected change in topic prevalence over time for each of the six topics; higher y-axis values indicate the topic was more likely to be covered that year. Of the six topics identified by our STM, five clearly relate to specific legal protections, while the sixth relates to the broader treatment of LGBTQ+ individuals in society. To begin, the first topic in the upper left panel of Figure 4, Military Treatment, relates to the military’s treatment of LGBTQ+ people, with a particular emphasis on the “Don’t Ask, Don’t Tell” policy. This topic was most prevalent in the mid-1990s. Wolfson’s coverage in articles about this topic stemmed largely from his role as an attorney with Lambda Legal representing individuals discharged from the military for their sexual orientation. The second topic relates to Medical Treatment and Protections and peaks in the late 1980s and early 1990s. This topic involves discrimination against individuals who have or are suspected to have HIV or AIDS. Coverage of Wolfson largely involved his expertise in his early career litigating cases of discrimination against people with HIV or AIDS. The third topic, Police Interactions, relates to the broader societal situation faced by LGBTQ+ individuals, largely involving run-ins with the police. Attention to this topic is sporadic – with various peaks and valleys – and the topic is quite encompassing. This topic includes coverage of Wolfson’s litigation efforts in, and commentary on, an array of cases relevant to the LGBTQ+ community, most notably relating to contact with the police.
Figure 4. Effects of time on topic prevalence.
The fourth topic addresses discrimination by the Boy Scouts of America, a private, nonprofit organization that expelled and excluded LGBTQ+ individuals from membership. This coverage largely involves Boy Scouts of America v. Dale (2000), which Wolfson litigated before the U.S. Supreme Court. This topic peaks in the late 1990s and early 2000s, which reflect the central period during which the case was being discussed. The fifth topic relates to Sexual Orientation Discrimination, particularly involving judicial decisions that involved hate crimes laws and sodomy. The dual peaks in this topic correspond to two major Supreme Court decisions – R.A.V. v. St. Paul (1992) and Lawrence v. Texas (2003) – and coverage of Wolfson largely involves his commentary about the cases.
The final topic is the central one of interest, Same-Sex Marriage. The topic exhibits temporal dynamics that correspond with the explaining-outcomes process tracing case study presented in the previous sections. First, there is a peak in the 1990s, reflecting the importance of the decision in Baehr and Wolfson’s central role in that case. The second pattern, though, is especially illuminating, particularly as it is so markedly different from other observed patterns in attention over time in the corpus. From approximately 2000 onward, or the period during which Wolfson’s marriage equality advocacy accelerated following establishment of Freedom to Marry, there is a consistent and steady increase in the attention to same-sex marriage in articles mentioning courts and Wolfson in The Advocate.Footnote 6 Even more importantly, the shift to multidimensional advocacy has a clear impact on the extent to which the discussions are focused on same-sex marriage: rather than fading away, the attention to marriage equality only increases over time. Coverage of Wolfson included his formation of Freedom to Marry and the legal, political and public relations strategies for winning marriage equality that Wolfson developed.
Conclusion
We began this article by asking four questions. Two of those questions center on why marriage equality ascended to such a position of prominence in LGBTQ+ legal advocacy in the United States between the 1980s and the 2010s, especially when the issue served only some members of the community and shifted a significant fraction of the movement away from radical activism. The other two questions centered on shifts outside of courts, specifically seeking to understand the movement of LGBTQ+ organizations toward multidimensional advocacy and the shift of LGBTQ+ media toward discussions of marriage equality. Our argument has been that focusing on the political and legal entrepreneurship of Evan Wolfson of Lambda Legal and Freedom to Marry provides fresh answers to these important questions. In his role as a political and legal entrepreneur, Wolfson developed novel legal and political arguments that constructed marriage equality as the keystone of broader LGBTQ+ rights; built new organizations that advanced this message and provided funding to like-minded organizations and activists; and used rhetoric, social skill and the strategic allocation of resources to build alliances and mollify potential critics. In no small part due to these efforts, marriage equality ascended to a position of preeminence in LGBTQ+ legal advocacy in the United States, and multidimensional advocacy became the template organizing this activity. Moreover, as our content analysis of a large collection of articles from The Advocate shows, Wolfson’s various activities allowed him to capture the attention of the longest-running and highest circulation periodical serving the LGBTQ+ community in the United States. Over the course of more than two decades, Wolfson’s entrepreneurial endeavors made critical contributions to the ascendance of marriage equality from a marginal consideration to a matter of central concern for the LGBTQ+ legal advocacy movement in the United States.
By tracking the emergence and evolution of multidimensional advocacy work in this setting, this article also highlights the broader implications of political and strategy entrepreneurship in social movements. It differs from scholarship that compartmentalizes media and political work and litigation as discrete strategies for social movements and creates the impression that legal activists unwisely prioritize litigation over public relations and political mobilization (e.g., Rosenberg Reference Rosenberg2008). It does so by highlighting how entrepreneurial figures can catalyze and promote the ascendance of new issues within legal advocacy organizations, steering organizations away from a singular focus on litigation and toward multidimensional strategies that feature public education, media appearances, lobbying and legislation as well as litigation. In doing so, the organizations build the support necessary to ensure progress in one space generalizes to gains across other spaces, ensuring sustained advocacy success. Moreover, the multidimensional approach allows for adaptation and evolution in strategy by social movements, a facet often overlooked in more narrow analyses of social movement impact. In short, our work highlights the relationship between political and strategy entrepreneurship and multidimensional advocacy within social movements. Entrepreneurship within legal advocacy organizations can give rise to the ascendance of new issue priorities, the establishment and evolution of new advocacy strategies and even the development of new organizational forms within legal and social movements. Future research examining multidimensional advocacy within social movements should examine the role of political and strategy entrepreneurs in advancing this strategic template for action.
In our research, we are attentive to how political and strategy entrepreneurship can have distributive implications within social movements, reallocating movement attention and resources toward the interests and values of privileged subgroups and away from those of less powerful subgroups. As we have noted, Wolfson’s entrepreneurship likely prioritized the interests of privileged members of the LGBTQ+ community (relatively well-educated, affluent monogamous couples seeking marriage) at the expense of the interests of less powerful subgroups (less-educated, less affluent individuals who may have been less concerned about marriage than, say, about sexual orientation or gender identity-based discrimination in housing or employment).
We acknowledge and recognize that political and strategy entrepreneurship within social movements is a complex process with both positive and negative dimensions. While Wolfson’s evolution as an entrepreneur yielded an effective multidimensional advocacy campaign, that success may have inadvertently reinforced existing power dynamics within the LGBTQ+ advocacy movement and neglected the needs and concerns of less privileged subgroups within the community represented by the movement. Recognizing and acknowledging these complexities is essential in order to ensure that future advocacy efforts, particularly those that take the promising approach of a broad, multidimensional strategy, address the diversity of interests and priorities in their communities and avoid further marginalizing relatively disadvantaged subgroups within movements.
Finally, while our research provides valuable insights into the dynamics of LGBTQ+ legal advocacy and the role of political and strategy entrepreneurship, it does so solely within the context of the United States, and therefore is only piece of a much broader international puzzle. The LGBTQ+ movement and the struggle for marriage equality is a global movement and the social, political and legal battles have been different across many different settings around the world (e.g., Harding Reference Harding2010; Herman and Stychin Reference Herman and Stychin1995; Waaldijk Reference Waaldijk2003). Examinations of marriage equality on a global scale provide evidence that the path to recognition and acceptance varies significantly, with some nations embracing marriage equality while others move backward. According to Human Rights Campaign (2023), as of June 2023, same-sex marriage was legal in 34 countries, of which 23 had achieved legalization through legislation that was not mandated by courts. The diversity in pathways to recognition and the enormous gap remaining offer important avenues through which our understanding of entrepreneurship and multidimensional advocacy might serve as a roadmap for future research. Building this better understanding of movement dynamics and entrepreneurship in the context of movement advocacy is critical for advancing LGBTQ+ rights around the globe, and expanding research in this direction can better contribute to and inform multidimensional strategies.
Supplementary material
The supplementary material for this article can be found at https://doi.org/10.1017/lsr.2023.2.
Financial Support
This research is supported by a grant from the Law and Science Program of the National Science Foundation (NSF, 2043745). Previous versions of this research were presented at the 2022 meetings of the Law and Society Association and the American Political Science Association. We are grateful to the NSF; to Lucy Adelman, Sarah Almstrom, Juliana Bird, Rachael Caflisch, Alan Chak, Sabrina Chhorn, Jesse Chisholm, Michael Clifford, Anthony Clough, Justin Daiweisi, Julia diBenedetto, Mitchell Director, George Fox, Kaitlyn Gatza, Clara Goldberg, Caroline Greenlaw, Francesca Guerriera, Jessica Hardy, Anastasia Honny, Telly Jacobs, Beyonce Janvier, Luke Johnson, Eshaa Joshi, Iman Kagimu, Karen Kimble, Emma Kotelly, Aditi Kudva, Samantha LaBrie, Ajijolaoluwa Laguda, Sydney Lamoureux, Jenna Macone, Nicole Malanga, Marco Maldonado, Nola Minogue, Ellie O’Donnell, Nicole O’Neil, Uju Onochie, Ayomide Osho, Helly Patel, Hillarie Pilier Hernandez, Krista Poehlmann, Alexandra Protter, Abdul-Rehman Iftikhar, Molly Roth, Katherine Santin, Alec Schiffman, Jack Schneeman, Lovishniakri Sekaran, Marygrace Sicheri, Grace Simmons, Mackenzie Smith, Talazen Smith, Sarah Soares, Lauren Sointu, MaryAnn Songhurst, Zach Steward, Rohan Sthanu, Nicole Stoddard, Colby Sutton, Simon Vo, Christine Wanjiru, Taos Washington, Cindy Zhang and Anna Zou for their outstanding research assistance; and to Rebecca Hamlin, Rich Vining, Michael Yarbrough, the editors, and the anonymous reviewers for their very helpful comments on this research.
Conflicts of interest
The authors declare no conflicts of interest in this research.
Christine M. Bailey is a Ph.D. Candidate in the Political Science Department and a Feminist Studies Certificate Candidate in the Women, Gender, Sexuality Studies Program at the University of Massachusetts Amherst. Her research focuses on gender and inequality in the legal system, particularly as it applies to the experiences of female attorneys who work in the U.S. courts of appeals.
Paul M. Collins Jr. is Professor of Legal Studies and Political Science at the University of Massachusetts Amherst. His research focuses on understanding bias and inequality in the legal system, the selection and work of judges, and social movement litigation.
Jesse H. Rhodes is Professor of Political Science at the University of Massachusetts Amherst. His research focuses on voting rights, (de)democratization, and race, ethnicity, and politics in the United States.
Douglas Rice is Associate Professor of Legal Studies and Political Science at the University of Massachusetts Amherst. His research examines the dynamic role courts play in shaping American policy.
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