As the U.S. Supreme Court examines the constitutionality of the Defense of Marriage Act, corporate America has rallied for gay marriage in what legal and business experts described as a “seismic” cultural shift.
Hundreds of corporations, law practices, advocacy groups and local governments have signed briefs that were filed late last month with the Supreme Court in support of Edith Schlain Windsor, who is challenging the section of the Defense of Marriage Act (DOMA) that defines marriage as “a legal union between one man and one woman” and a spouse as “a person of the opposite sex.”
In one brief filed Feb. 28 in the case United States v. Windsor, 278 businesses, law firms, governments and other organizations called for the federal definition of marriage to be broadened to include same-sex couples.
They argue that firms operating in states that have legalized gay marriage, like Connecticut, are “burdened” by “this dual regime” in which gay couples are entitled to state benefits but denied federal benefits.
“We favor a simple rule: that the federal government will not hinder an employer from treating all of its married employees in the same way,” said Susan Millerick, a spokeswoman for Aetna Inc., which is based in Hartford and was one of the signers. “We want to create the best, most productive workplace environment possible. … It ill serves that objective when the federal government obliges us to treat one set of married employees differently than another.”
The signers of the Feb. 28 brief, which range in the words of observers “from Apple to Zynga,” represent a who’s who of Wall Street and include Citigroup, Facebook, Goldman Sachs, Intel, Johnson & Johnson, Microsoft, Nike, UBS and Walt Disney Co., among others.
In addition to Aetna, Connecticut companies on the brief include Diageo North America Inc., a Norwalk-based premium beverages business; Thomson Reuters, which is based in New York City and has a significant corporate presence in Stamford; UBS AG, which has its North American headquarters in Stamford; Xerox Corp., based in Norwalk; the Connecticut Alliance for Business Opportunities and the city of Hartford.
Michelle Phillips, a partner with workplace law firm Jackson Lewis L.L.P., said there are more than 1,000 laws that are impacted by the definition of “spouse.”
“This issue of overturning DOMA calls into question a number of potential issues, and this is an area where corporations are leading the way and the law is behind,” said Phillips, who works in the firm’s White Plains, N.Y., office and who is co-chair of the firm’s LGBT employee resource group.
Phillips said federal income tax rates and workplace benefits such as health insurance, pensions or employee relocation packages are all impacted by DOMA.
Additionally, she said the outcome of the Supreme Court challenge will likely impact the Family and Medical Leave Act, which entitles employees of covered employers to take a leave of absence for specific family and medical reasons with the guarantee that their jobs and certain benefits will be protected.
The current challenge to DOMA began with Edith “Edie” Windsor, a New York resident who married longtime partner Thea Spyer in 2007 in Toronto. When Spyer died two years later, same-sex marriages performed in other jurisdictions were recognized as legal marriages under New York law.
However, Windsor was forced to pay more than $363,000 in federal estate taxes on her inheritance. If DOMA did not exist, Windsor would have paid no federal estate taxes.
Phillips reiterated that employers are taking the lead, pointing to the corporate support for Windsor’s case.
“I believe there have been seismic changes in the culture of companies and I see that at the highest levels of organizations,” Phillips said. “What you’re seeing is that in order to be an employer of choice, you need to attract a diverse culture and that, of course, includes people of other lifestyles.”
A Xerox spokeswoman said the firm “has had a long history of supporting a diverse and inclusive environment in our company, so that translated to supporting this (brief).”
At Aetna, where CEO Mark Bertolini is on the board of directors of the National Gay & Lesbian Chamber of Commerce, Millerick said DOMA “forces an employer to put its lawfully married employees into two categories,” which she said creates regulatory, tax, benefit and morale problems.
For example, she said, “where most health care benefits are concerned, the law makes an employer withhold more from the W-2 of a lawfully married employee if his spouse is of the same sex than if not.”
Edwards Wildman Palmer L.L.P., a Boston law firm with offices in Stamford and Hartford, signed the Feb. 28 brief, with a representative citing practical and philosophical rationales.
“The pragmatic issue is DOMA imposes real burdens on a business like ours,” said Daryl Lapp, partner and co-chair of the firm’s litigation department.
With 600 attorneys and hundreds more support staff — many of whom work in offices in states that have passed laws legalizing same-sex marriage — “it creates a real burden on your HR department to keep track of all the ways you have to deal with employees with same-sex spouses differently for the purposes of federal and state law.”
Additionally, Lapp said, “Culture is important. … You want to be treating your employees in a way that is absolutely fair and consistent across the board, and yet here is this law that requires us to discriminate.”
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