Corporate Call for Change in Gay Marriage Case
Published: February 27, 2013 - New York Times
Arguing that the federal Defense of Marriage Act
imposes serious administrative and financial costs on their operations, some of
the nation’s largest companies filed
a supporting brief with the Supreme
Court on Wednesday, urging it to overturn a section of the act that denies
federal benefits and recognition to same-sex couples.
The brief drew 278 signers, including more than 200
companies — among them giants like Citigroup, Apple, Mars and Alcoa — as well as
city governments, law firms and other groups. In statements on Wednesday, many
declared their firm opposition to discrimination based on sexual orientation.
But the “friend of the court” brief focused more on the burdens imposed by the
1996 law on companies that offer benefits to same-sex spouses.
The brief was one of many received by the court as it
considered landmark cases on gay rights and marriage. With a wide swath of
leading companies signing on, it is the latest sign of the rapid shift toward
acceptance of same-sex marriage in the corporate world as well as in the
country. Recent polls indicate that a majority of Americans now agrees that
same-sex marriage should be legal. Nine states plus the District of Columbia
have legalized gay marriage and three more states recognize gay marriages
performed elsewhere.
Prominent Republicans
also announced they would also file a Supreme Court brief in support of a
suit seeking to strike down Proposition 8, a California ballot initiative
barring same-sex marriage, and all similar bans.
In the brief, the signers said the federal law “puts
us, as employers, to unnecessary cost and administrative complexity.” But the
law also, the brief stated, “forces us to treat one class of our lawfully
married employees differently than another, when our success depends upon the
welfare and morale of all employees.”
For companies operating in the states where same-sex
marriage is legal, the ban on federal benefits under the law has proved a
headache. Contradictory marriage laws in different states have also complicated
benefits and other programs of companies operating in multiple states.
Treating heterosexual and same-sex married employees
differently under federal law, the brief said, imposed high administrative costs
as companies maintained dual systems of tax withholding and payroll. It results
in extra tax burdens for both companies and employees with health plans, and can
affect payments including retirement, pension and life insurance as well as
having a bad effect on morale.
“We feel it’s critical for the court to understand the
burdens that this law imposes on both employers and employees,” said James
Klein, president of the American Benefits Council in Washington, whose members
include a broad cross-section of major employers. “DOMA is not just a piece of
social legislation, but it also has very practical costs for the business
community and the people they employ.”
Those signing the brief included major companies like
Walt Disney, Starbucks, Amazon, Microsoft, Levi Strauss, Marriott International
and New York Life, as well as smaller firms like the U.S. Balloon Company in
Brooklyn and Holdredge Wines in California.
The list also includes Wall Street firms like
BlackRock, Goldman Sachs and Morgan Stanley.
The brief was filed in support of United States v.
Windsor, No. 12-307, which challenged a part of DOMA that defined marriage as
being only between a man and a woman for the purposes of more than 1,000 federal
laws and programs.
The case involved Edith Windsor of New York City, who
had married
Thea Clara Spyer in Canada in 2007. Ms. Spyer died in 2009, leaving her
property to Ms. Windsor. But the Internal Revenue Service said that under DOMA,
Ms. Windsor could not be treated as a surviving spouse and she faced a large tax
bill that a spouse in an opposite-sex marriage would not have to pay.
Ms. Windsor sued and a federal appeals court struck
down the 1996 law, the second time an appeals court called this part of DOMA
unconstitutional.
The case is one of two now before the Supreme Court
concerning same-sex marriage; a second, involving Proposition 8, is the subject
of another amicus brief supported by some of the same corporations that signed
the Windsor brief.
The court is expected to hear arguments on both cases
in March.
The Windsor amicus brief, mainly drafted by Sabin
Willett, a lawyer with Bingham McCutchen in Boston, outlined the costs imposed
on both employers and employees when companies must maintain dual policies for
those in same-sex and opposite-sex marriages. But it also argues that the
discrimination undermines their business performance.
“It’s 2013, the face of the nation is changing and to
be competitive, to win in business today, you need to change with the
demographics of the nation,” said Bernadette Harrigan, an assistant vice
president in the law department of the Massachusetts Mutual Life Insurance
Company, one of the signers, who has been active on gay rights issues.
Several companies, in statements issued Wednesday,
stressed their concerns about the impact of DOMA not only on costs but also on
fairness.
“Mars’ decision to support the amicus brief was based
on our belief that all married Mars associates should be treated equally under
the law,” said a statement from the candy maker.
A Johnson & Johnson statement said: “We have
joined the amicus brief because, as an employer, we believe that all lawfully
married employees should be treated by our company in the same way.”
John Holdredge, of Holdredge Wines in Healdsburg,
Calif., said in a telephone interview, “We don’t want to have to ask employees
about their orientation and we don’t want to have to discriminate.”