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Major U.S. corporations tell federal court: DOMA is bad for business

Sunday, November 6, 2011
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BOSTON — Seventy major U.S. companies, including CBS, Google, Microsoft, Nike and Starbucks, have come together in an “amicus” brief — commonly referred to as a “friend of the court” brief — claiming that the federal Defense of Marriage Act (DOMA) is harmful to commerce.

In the legal filing in the U.S. Circuit Court of Appeals for the First Circuit, the companies assert that compliance with DOMA essentially compels them to “investigate the gender of the spouses of our lawfully married employees and then to single out those employees with a same-sex spouse,” imposes significant administrative costs, and harms their ability to attract and retain talent.

The brief was filed in support of the suit Gill v. the U.S. Office of Personnel Management (OPM), which challenges the denial of federal rights and benefits to lawfully married gay and lesbian couples. The suit was brought by Gay & Lesbian Advocates & Defenders (GLAD), as well as the consolidated case brought by the Commonwealth of Massachusetts, challenging DOMA’s discrimination against its own citizens.

In the brief, the companies argue that the GOP-led U.S. House of Representatives — through its defending of DOMA — is seeking to continue to impose a uniform rule of eligibility for federal marital benefits under its guidelines, while at the same time ignoring the state’s laws.

The companies argue that DOMA presents a burden on employers who do business in multiple jurisdictions because marriages are celebrated and recognized under state law, and that a federal law withholding marital benefits from some lawful marriages, but not others, creates a non-uniform rule.

The companies also say that DOMA forces them to discriminate against their own employees.

“It puts us, as employers and enterprises, to unnecessary cost and administrative complexity, and regardless of our business or professional judgment forces us to discriminate against a class of our lawfully-married employees, upon whose welfare and morale our own success in part depends.”

According to the brief, DOMA causes employers to incur administrative burdens and expenses, forcing them to administer dual systems of benefits and payroll, imposes on them the cost of the workarounds necessary to simultaneously treat employees with same-sex spouses as “single” for the purposes of federal tax withholding, payroll taxes, and workplace benefits, and as “married” for all other purposes under state laws.

“These dual regimes have spawned an industry of costly compliance specialists,” wrote the lawyers in the filing, noting that “the burden on the small employer is especially onerous.”

“Our enterprises are engaged in national and international competition — for talent, customers, and business,” the brief concludes.

“That competition demands teamwork, and teamwork thrives when the enterprise minimizes distracting differences, and focuses on a common mission. DOMA’s core mandate — that we single out some of our married colleagues, and treat them as a lesser class — upsets this imperative.”

“If the Republicans truly are concerned about reducing government intrusion and interference with commerce, then based on those factors alone, DOMA should be repealed,” said one business consultant, who wished to remain anonymous.

The seventy corporations included in the brief are:

  • ABT Associates
  • Aetna, Inc.
  • Akamai Technologies, Inc.
  • Alere Inc.
  • Bank of New York Mellon Corporation
  • Biogen Idec, Inc.
  • Blue Cross Blue Shield of Mass., Inc.
  • Boston Community Capital, Inc.
  • Boston Medical Center Corp.
  • Bright Horizons Children’s Centers LLC
  • Calvert Investments, Inc.
  • CBS Corporation
  • The Chubb Corporation
  • Communispace Corp.
  • Constellation Energy Group, Inc.
  • Diageo North America, Inc.
  • Eastern Bank Corp.
  • Exelon Corp.
  • FitCorp Healthcare Centers, Inc.
  • Gammelgården, LLC
  • Google Inc.
  • Integrated Archive Systems, Inc.
  • Kimpton Hotel & Restaurant Group, LLC
  • Levi Strauss & Co.
  • Loring, Wolcott & Coolidge Trust, LLC
  • Massachusetts Mutual Life Insurance Co.
  • Massachusetts Envelope Company, Inc.
  • Massachusetts Financial Services Company
  • Microsoft Corp.
  • National Grid USA, Inc.
  • Nationwide Mutual Insurance Co.
  • New Balance Athletic Shoe, Inc.
  • New England Cryogenic Center, Inc.
  • NIKE, Inc.
  • The Ogilvy Group, Inc.
  • Onyx Pharmaceuticals, Inc.
  • Partners HealthCare System, Inc.
  • Reproductive Science Center of New England
  • Skyworks Solutions, Inc.
  • Starbucks Corp.
  • State Street Bank and Trust Co.
  • Stonyfield Farm, Inc.
  • Sun Life Financial (U.S.) Services Co., Inc.
  • Time Warner Cable, Inc.
  • Trillium Asset Management Corp.
  • W/S Development Associates LLC
  • Xerox Corp.
  • Zipcar, Inc.

Law and professional firms:

  • Burns & Levinson LLP
  • Edwards Wildman Palmer LLP
  • Foley Hoag LLP
  • Goodwin Proctor LLP
  • Goulston & Storrs, P.C.
  • McCarter & English LLP
  • Nixon Peabody LLP
  • Parthenon Group LLC
  • Ropes & Gray LLP
  • Salera Consulting
  • Seyfarth Shaw LLP
  • Sullivan & Worcester LLP

Professional, trade and civic organizations:

  • Greater Boston Chamber of Commerce
  • The Boston Foundation
  • Massachusetts Association of Health Plans
  • Massachusetts Biotechnology Council, Inc.
  • The National Fire Protection Association
  • Out & Equal Workplace Advocates
  • Retailers Association of Massachusetts

And the following cities:

  • The City of Boston, MA
  • The City of Cambridge, MA
  • The City of New York, NY
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