Corporate Employers Take Principled Stand Against DOMA

Originally Published on forbes.com on February 3rd,2012

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I have written a bit about the great work that Boston based Gay & Lesbian Advocates & Defenders (GLAD) has been doing on marriage equality and other LGBT issues.  I am very pleased to have a guest post from a member of GLAD’s legal staff outlining the reasons that motivate many large corporations to take a principled stand against the so-called Defense of Marriage Act.

“Our principles are not platitudes.”
by Vickie Henry
Senior Staff Attorney
Gay & Lesbian Advocates & Defenders

American businesses may have been caught by surprise by the Defense of Marriage Act (DOMA) – the federal law passed in 1996 that said for all federal purposes, legally married same sex couples are, in fact, not married. The couples can’t file their federal taxes jointly, or receive each other’s Social Security benefits, or inherit from each other tax-free, or do more than 1,000 other things that straight married couples can do.

But as more states adopted marriage equality – right now couples can marry in Massachusetts, Connecticut, Iowa, New Hampshire, Vermont, New York and the District of Columbia* – more businesses had to learn what this outrageous law meant for them as employers. And as the amicus brief that businesses such as Xerox, BNY Mellon, Aetna, and filed in Gill v. Office Personnel Management shows, they don’t like it.

Gill is one of two federal lawsuits challenging the constitutionality of DOMA filed by Gay & Lesbian Advocates & Defenders (GLAD), the New England-based legal organization working to end discrimination based on sexual orientation, gender identity/expression and HIV status, on behalf of a group of married same-sex couples and gay widowers from Massachusetts that have been denied federal benefits because of the law. First Circuit Court Judge Joseph Tauro ruled in favor of the plaintiffs back in 2010, a decision that was appealed by Congress’ Bipartisan Legal Advisory Group (BLAG). Appellate arguments are scheduled for April 4 in Boston

The business brief was filed with the appeals court in support of the plaintiffs.

As the companies state in the brief, “Federal law provides to the working family many benefits and protections relating to healthcare, protected leave, and retirement. These protections provide security and support to an employee grappling with sickness, disability, childcare, family crisis, or retirement, allowing the employee to devote more focus and attention to his work.” In other words, federal law enables good employers to be good employers

But DOMA messes that up: “DOMA conscripts amici to become the face of its discrimination,” they write.”As employers, we must administer employment-related health plans, retirement plans, family leave, and COBRA. We must impute the value of spousal healthcare benefits to our employees’ detriment. We must intrude on their privacy by investigating the gender of their spouses, and then treat one employee less favorably, or at minimum differently, when each is as lawfully-married as the other. We must do all of this in states that prohibit workplace discrimination on the basis of sexual orientation and demand equal treatment of all married individuals. This conscription has harmful consequences.”

Their brief does not make a constitutional argument about DOMA, but focuses on the practical burdens that DOMA places on businesses. Still, I am very heartened (in this Occupy Wall Street moment in time) to find that these businesses’ core motivation for standing up against DOMA is principled.

“Our mission statements are not simply plaques in the lobby. Statements of principle are our agenda for success: born of corporate experience, tested in laboratory, factory, and office, attuned to competition. Our principles reflect, in the truest sense, our business judgment. By force of law, DOMA would rescind that judgment, and direct that we renounce these principles, or betray them.”

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*WashingtonState and Maryland recently passed marriage equality laws that will likely be subject to voter referenda in November.

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