July 12, 2012
By Jacob Combs
Updated with a link to the full brief.
The Seattle Times reported earlier this week that the city of Seattle is joining seven other cities in opposing the constitutionality of the Defense of Marriage Act in court in the case of Golinski v. OPM. In a new brief filed on Tuesday, over 70 business and municipal employers urged the Ninth Circuit to uphold a district court’s ruling that DOMA violates the U.S. Constitution, specifically addressing the impact that the law has on employers in the way it forces them to discriminate against their own workers:
The House of Representatives argues that Congress, through DOMA, sought to impose a uniform rule of eligibility for federal marital benefits.3 The perspective of the American employer who must implement DOMA is very different. Because marriages are celebrated and recognized under state law, a federal law withholding marital benefits from some lawful marriages, but not others, creates a non-uniform rule. Employers are obliged to treat one employee spouse differently from another, when each is married, and each marriage is equally lawful. In this brief, amici show how the burden of DOMA’s dual regime is keenly felt by enterprises that conduct operations or do business in jurisdictions that authorize or recognize same-sex marriage.
Joining Seattle in the brief were the cities of San Francisco, New York, Boston, Cambridge, Santa Monica, Los Angeles and West Hollywood and a wide range of major businesses, among them Levi Strauss, Microsoft, McGraw-Hill, CBS, Starbucks, eBay, Xerox, Viacom, Gap and Google.
What makes the new Golinski brief so powerful is that it addresses specifically the ways that DOMA harms American businesses by straining the relationship between employers and employees and interfering with companies’ efforts to create transparent, fair work places. As the companies wrote in the brief, “DOMA forces amici to investigate the gender of the spouses of our lawfully- married employees and then to single out those employees with a same-sex spouse,” requiring businesses to incur the cost of providing fair and equal benefits to their gay and lesbian employees should they choose to do so.
Perhaps even more significantly, the new brief argues that DOMA essentially prohibit companies from conducting business according to their own corporate missions and instead forces them to affirm discrimination that they disagree with. As the amici brief concludes:
Our principles are not platitudes. 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 worse yet betray them.”
If this employers’ brief demonstrates anything, it shows just how short-sighted and narrow the determination to pass DOMA was in the first place. Congress put the law into place with minimal research and fact-finding, doing it merely to set in stone a government-dictated restriction predicated upon the prevailing morals of the day.
But American society and American business have changed since 1996. Today, over 86 percent of Fortune 500 companies protect their gay and lesbian employees from discrimination. Overwhelmingly, American business is of the belief that gays and lesbians should be treated equally to heterosexuals. It’s past time for our government to do the same.