Hundreds of businesses join brief in Supreme Court opposing DOMA

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Days after prominent Republicans said they were signing a legal brief arguing that gay couples have a right to marry, 278 employers have filed an amicus brief in the Supreme Court, arguing the same thing.

The businesses include Apple Inc., Broadcom Corp., Citigroup Inc., Facebook Inc., Johnson & Johnson, Marriott International Inc., Microsoft, Orbitz, Starbucks, Twitter and the Walt Disney Co. Chambers of Commerce in San Diego, Boston, Portland, Seattle and San Francisco also joined the brief.

“DOMA, a federal law withholding marital benefits from some lawful marriages but not others, requires that employers treat one employee differently from another,” the brief argues. That’s especially true for employers who operate in any of the 12 states that now permit gay marriage, the brief says, because the states recognize marriages but the federal government does not. It was written by Sabin Willett, of Boston firm Bingham McCutchen LLP.


Employers must compete in order to attract the best employees, and they do so by offering benefits packages, which help promote employee loyalty. But the Defense of Marriage Act “forces amici to consider the gender of the spouses of our lawfully married employees when determining the scope and manner of benefits that may be extended to the spouses.”

DOMA also prevents some same-sex employees from taking advantage of tax benefits that other employees can take advantage of; same-sex employees cannot use pre-tax salary to pay for health coverage of a same-sex spouse, nor can they use flexible savings accounts to pay for child care of dependents from a same-sex marriage. In all, an employee married to a same-sex spouse will pay $1,069 more in taxes than a colleague married to a different-sex spouse, according to a study of W-2 forms, the brief says.

Federal law also does not allow employees married to same-sex spouses to give spouses access to COBRA or family medical leave. It prevents same-sex spouses of highly qualified visa recipients to receive the same type of visa as their spouse; it also prevents these spouses from being the beneficiary of pension plans.

All in all, “DOMA forces amici to administer dual systems of benefits and payroll, and imposes on them the cost of the workarounds necessary to protect married colleagues,” the brief says.

In the states that allow gay marriage, employers must treat employees with same-sex spouses as single for purposes of federal tax withholding and workplace benefits that depend on marital status, but married for everything else. Many employers thus retain two sets of books to keep track of all this paperwork.

“For many employers, DOMA does violence to the morale of the institution itself,” the brief says.


Many employers have come forth in support of gay marriage before, most notably in November’s elections, when three states -- Washington, Maine and Maryland affirmed the right of same-sex couples to marry. Starbucks, Microsoft and others spoke out in those campaigns.

DOMA is expected to be argued in front of the Supreme Court in the end of March. It concerns Edie Windsor, who was married to her wife, Thea Speyer, for 44 years. When Speyer died in 2009, the federal government refused to recognize the marriage and taxed Windsor as if she had not been married to Speyer. Had the marriage been recognized, Windsor would have been exempt from these taxes, which amounted to more than $300,000.

In October, the 2nd Circuit struck down DOMA, and in December, the Supreme Court agreed to hear the case.


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