Gay marriage: why corporations are coming out against DOMA

Wading into the highly emotional but quickly shifting national debate over gay marriage, 278 companies filed an amicus brief Wednesday in support of Edith Windsor, the New York woman whose challenge of the Defense of Marriage Act (DOMA) has been taken up by the United States Supreme Court.

Among the companies filing the brief are behemoths Microsoft, Google, Amazon, and Starbucks, corporate entities associated with America’s youth culture. But others include pharmaceutical giant Pfizer, insurance mainstay Aetna, and Citigroup.

In addition to the challenge to DOMA, which centers on Ms. Windsor’s having had to pay a substantial federal estate tax following the death of her partner of more than 40 years, whom she married in Canada, the Supreme Court is also taking up California’s Proposition 8 ban on same-sex marriage. Windsor would not have had to pay any federal estate tax on the inheritance had the United States recognized her marriage. The court will hear arguments on Prop. 8 on March 26, and on DOMA on March 27.

So what interests do corporations, which usually shun controversy, have in urging the Supreme Court to sign off on gay marriage? One reason, it appears, is they think it’s just good business.

Interviews with legal experts, marketing and public relations specialists, and others say the reasons are more complex than just the increased social acceptance of gay marriage, reflected in opinion polls and such actions as President Obama’s historic embrace of it last year. They say businesses are acting in the interest of their own economic bottom line.

“A lot of these corporations looked at what happened with Chick-Fil-A last summer and decided that coming out against same-sex marriage is bad for business,” says Robert  Hume, a professor of political science at Fordham University in New York. Chick-Fil-A, the southern-based food franchise, became embroiled in demonstrations and boycotts last year after president Dan Cathy came out against gay marriage and in support of the “biblical definition of the family unit.”

“With people across the political spectrum coming out in favor of same-sex marriage and with young people overwhelmingly behind it, corporations might have decided that it is only a matter time before it becomes our national policy too,” says Professor Hume. “They don’t want to get on the wrong side of this issue.”

The corporations themselves trumpet their commitment to fairness and inclusion.

“We are proud of our longstanding commitment to diversity, inclusion, and equal treatment of all our employees within our benefits programs,” David Rodriguez, executive vice president of Marriott, said in a statement. “Joining the Business Coalition for DOMA Repeal affirms that commitment, and we urge Congress to pass this important legislation.”

Gay advocacy groups say DOMA should be struck down for reasons of a creative and harmonious workplace

"For companies to succeed, they must be able to hire talented workers and give them a positive environment in which to live and work,” says Thomas Watson, president of  Love Honor Cherish, a Los Angeles-based, nonprofit, civil rights organization.  “Of course, some talented workers happen to be gay or lesbian. But no matter how good the job may be, many of those workers understandably don’t want to live in states or countries that fail to recognize their relationships and their families.”

"Proposition 8 inflicts real harm on businesses who are committed to diversity and inclusion because it forces them to treat their gay and lesbian employees like second-class citizens," says Elizabeth Riel, communications adviser for American Foundation for Equal Rights, the Los Angeles-based nonprofit that challenged Prop. 8 in federal court.

Beyond moral questions, however, many academics and business analysts say companies have several purely economic reasons to embrace gay marriage.

“Businesses know the research shows married people tend to be healthier and live longer, are less depressed and have fewer heart attacks,” says Alan Wolfe, director of the Boisi Center for Religion and American Public Life at Boston College. “We don’t know that about gays yet, but employers are for now assuming that for the same reason they prefer heterosexual married employees, they prefer gay married to gay single.” He says whether or not the studies are true, “corporate execs believe it to be true and act accordingly.”

Shannon Price Minter, legal director for the  National Center for Lesbian Rights in San Francisco, says  “Corporations want to be able to keep their best talent and offer the same types of benefits and protections to all of their employees in every state across the country. DOMA creates inequality and require employers to discriminate against some of their own workers, which is harmful both to businesses and to their employees. From a business perspective, opposing DOMA is a no-brainer."

Some analysts say the legal justification for striking down DOMA could come from invoking the Interstate Commerce Clause, which DOMA appears to undermine because of the inequities it creates on taxation and inheritances for employees living in different states.

“It’s hard for courts to intervene for moral reasons, but if it can be shown that there are practical inequities over matters relating to paychecks and money, bankruptcy or survivor benefits issues, that’s where the ruling could focus,” says Janet Johnson, a constitutional lawyer in private practice in Florida.

In the amicus brief filed on Wednesday, Sabin Willett, an attorney for the corporations, wrote that DOMA "requires that employers treat one employee differently from another, when each is married, and each marriage is equally lawful."

He said that because 12 states in total either authorize same-sex marriage or recognize marriages that have been performed in other states, DOMA does not create any uniformity nationwide and that creates a burden for employers, particularly those who do business nationwide.

Mr. Willett also wrote that the law forces companies to discriminate, sometimes in contravention of their own internal policies and local laws, when dealing with health-care plans and other benefits.