Corporate Call for Change in Gay Marriage Case

Erik Eckholm
Sen. Kirsten Gillibrand, D-N.Y., and Edith Windsor, of New York City, talk in the hall before a news conference on the bill Gillibrand and other senators are sponsoring that would repeal the Defense of Marriage Act (DOMA).
Scott J. Ferrell | Congressional Quarterly | Getty Images

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."

— Written by Erik Eckholm for The New York Times