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70 Major Corporations File Amicus Brief Seeking Overturning Of DOMA

Some of America’s largest and well-known businesses have gotten together and filed an amicus curaie brief in a pending lawsuit seeking to have the Defense Of Marriage Act declared unconstitutional:

Microsoft and Starbucks are among 70 corporations, financial institutions, medical centers, and other major organizations that have signed on to a friend-of-the-court brief in support of a challenge to the federal Defense of Marriage Act (DOMA).

The organizations are, or represent, major employers who argue that DOMA imposes significant administrative costs, and that it harms their ability to attract and retain talent.

“Microsoft has joined dozens of corporations, organizations and governments in support of a challenge on constitutionality grounds to the federal Defense of Marriage Act, known as DOMA,” the company said in a statement. The amicus brief “points out the significant costs and administrative burdens DOMA imposes on employers as well as the ways DOMA interferes with employers’ efforts to promote diversity and equal opportunity in the workplace.”

The organizations — which also include Google, CBS, Time Warner Cable, Nike, and the cities of Boston, Cambridge and New York — filed the brief Thursday in the case of Commonwealth of Massachusetts vs. U.S. Department of Health and Human Services, one of two consolidated cases from Massachusetts challenging the constitutionality of DOMA.

Here’s one interesting part of the brief:

Our enterprises are located in states, including the Commonwealth of Massachusetts, that recognize the marriages of our employees and colleagues to same-sex spouses. At the same time, we are subject to the federal Defense of Marriage Act (“DOMA”), which precludes federal recognition of these marriages.

This dual regime uniquely burdens amici. 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.

The brief goes on to argue that, in order to attract the best employees, the companies have to offer generous benefit packages but that, because of DOMA they are required to to investigate the gender of the spouses of our lawfully married employees and then to single out those employees with a same-sex spouse. DOMA enforces discriminatory tax treatment of spousal health care benefits.” The companies also argue that DOMA imposes additional costs upon them because of the work-around they are then required to create for employees with same-sex spouses in order to ensure that they receive equal benefits to married employees with opposite sex employees. It’s an interesting argument, and the presence in the brief of some of America’s biggest companies is likely to draw the court’s attention.

It’s also likely to draw the attention of conservatives, who may be tempted to boycott these companies for taking this stance. One blogger dares them to do it:

Which companies are protesting DOMA, you ask? Starbucks. Google. Microsoft. Levi’s. Nike. Time Warner Cable. Aetna. New Balance. Xerox. The list is impressive indeed, especially given how it’s more or less an addendum to a much longer list, one that includes all the other enormous U.S. companies who already openly support gay rights, like Apple and Disney and Pixar, like Hershey and Coca-Cola and Dell, American Express and Mattel and even big media daddies like Time Warner, Inc. and Viacom. Et al.

Are you not furious, righteous Republican homophobe? I bet you are. I bet you’re dialing your angriest, most confused buds right this moment to write letters, post barely punctuated rants to the hate forums on Free Republic, call in to Rush to demand a Tea Party-wide boycott of every single one of these sicko companies.

I mean, you can’t really call yourself a true American, a real Christian and still openly wear Nikes or Levi’s, use Microsoft or Google, or watch Warner Brothers movies, can you? If you really walk your anti-gay talk, well, every one of these companies should be banned from your life, right?

Provocative language indeed, but the point is valid. It’s pretty much impossible to resist doing business with businesses that all of us use every single day. Let’s see them try it.

Here’s the brief:

Amicus Brief in Massasschusetts v. HHS et al

H/T: Andrew Sullivan

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook


  1. matt b says:

    Given how hard talk radio cons have been defending corporations as “good” and “American/Patriotic” in the wake of OWS, it should be pretty fun to see how they will have to contort themselves in order to accuse these particular corporations of destroying the American family as we know it.

    Like or Dislike: Thumb up 8 Thumb down 0

  2. PD Shaw says:

    It would nice if people learned to make policy arguments to policymakers and Constitutional arguments to the courts, but I rather assume this is about publicity.

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  3. @PD Shaw:

    Read the brief, they do make a legal argument.

    Like or Dislike: Thumb up 1 Thumb down 0

  4. OzarkHillbilly says:

    It would nice if people learned to make policy arguments to policymakers and Constitutional arguments to the courts, but I rather assume this is about publicity.

    PD: Don’t policy makers listen to publicity? So too the courts? I know, in an ideal world it would not work that way. But we don’t live in an ideal world. We live in this world.

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  5. PD Shaw says:

    @Doug Mataconis: I’ll have to take your word for it.

    @OzarkHillbilly: No, we live in a world where high-priced lawyers can make a living filing amicus briefs that don’t change outcomes.

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  6. Liberty60 says:

    This is what movements look like in their final closing battles.

    It seems obvious to me that the right to marriage is inevitable.

    For politicos the question is when- not if- the Republican Party will officially embrace marriage equality, or alienate yet another segment of the American public.

    Like or Dislike: Thumb up 0 Thumb down 1

  7. michael reynolds says:

    Cool, the firm where I used to work as a library flunky, Wilmer, Cutler, is on-board. Good for them.

    Like or Dislike: Thumb up 2 Thumb down 0

  8. Hey Norm says:

    So-called Republicans are way behind the curve. On almost everything. Romney actually is backwards…he endorses reasonable things…then in order to placate the Republican base he steps backward two decades. He claims to be consistent…he is consistently without principles.
    I applaud the businesses willing to embrace the free-market and not manipulate the market to fit their image of the world.

    Like or Dislike: Thumb up 0 Thumb down 1

  9. anjin-san says:

    Interesting how “conservatives” are all about government getting out of the way of business, except of course when they want to use the force of government to impose their version of morality on everyone else., regardless of the resulting loss of freedom on the part of individuals or the costs to business.

    Like or Dislike: Thumb up 3 Thumb down 1

  10. Fiona says:

    Should be interesting seeing right wing talking heads tying themselves in knots over this one. On the one hand, big business can do no wrong and is the victim of government regulation. On the other hand, big business is supporting “teh gays.” I hope Rush Limbaugh’s head explodes trying to reconcile the contradictions.

    Like or Dislike: Thumb up 2 Thumb down 1

  11. Just nutha ig'rant cracker says:

    @Fiona: You’re giving too much credit to the right wing having principles. All that Rush has to do is say that the businesses are folding to pressure from the gay lobby and the dittoheads with say, ‘yeah, that’s what’s going on, I need to support these guys so that they will be able to stand up to the pressure.”

    It’s why they are called “dittohead” instead of “rocket scientists” or “constitutional scholars.”

    Like or Dislike: Thumb up 5 Thumb down 1

  12. Janis Gore says:

    I read the brief. And I need a little help, Doug.

    The argument is that these corporations operating in states where SSM has been legalized operate under an undue burden because they have to do workarounds to attract and keep desirable employees. They have to do some fancy stepping to equalize compensation. Is that right?

    Isn’t the counterargument that there are plenty of straight employees that they could hire that would avoid that complication? Or, crassly, why y’all got to hire all them dykes and faggots?

    How would it play in court?

    Like or Dislike: Thumb up 1 Thumb down 1

  13. @Janis Gore:

    why y’all got to hire all them dykes and faggots?


    Well for one thing, in several states, a policy to not hire people because of their sexual orientation would be a violation of Civil Rights Laws.

    Like or Dislike: Thumb up 1 Thumb down 0

  14. Janis Gore says:

    Seriously. It’s not federal law is it? Isn’t that the reasoning behind ENDA?

    I’m asking the question seriously. You know my stance on gays.

    So the corporations find themselves pincered between state laws that demand equal opportunity and federal law that acts against the combined interest of the corporations and their employees in those states.

    Is that where it’s going?

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  15. @Janis Gore:

    Well there is also the point that there is no authority in the Constitution for the Defense of Marriage Act to begin with. Even the guy who drafted it back in the 90’s agrees with that now.

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  16. Janis Gore says:

    If that’s the case, what is the argument on the other side?

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  17. PD Shaw says:

    @Janis Gore: That Congress has power to regulate commerce, and 70 major corporations just presented evidence that treatment of marriage related benefits has a significant impact on commerce.

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  18. Janis Gore says:

    What’s the constitutional equivalent of the feds arguing, “I didn’t tell you to locate in those states. Deal with it.”?

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  19. Janis Gore says:

    Would that be the same?

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  20. Janis Gore says:

    It would be useful to know that the brief was filed in the appeal to Gill v. OPM:


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  21. mike says:

    @PD Shaw: You clearly no nothing about the USSC if you think that amicus briefs don’t influence the justice. I suggest reading The Nine. Amicus Briefs, esp ones like this, can and have been very influential. The amicus brief filed by a bunch of admirals and generals in the Michigan affirmative action cases were frequently cited to by the justices in the arguments.

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