Brody's Notes... Major U. S. Corporations Tell Court DOMA Is Bad For Business

Staff Reports

BOSTON, MASSACHUSETTS -- In a legal filing in the First District U. S. Circuit Court of Appeals regarding the ongoing appellate actions of the case filed against the Defence Of Marriage Act, (DOMA) this week, seventy major U. S. companies partnered together in an 'amicus curiae' filing- commonly referred to as a "friend of the court" brief- claiming that DOMA is harmful to commerce.

The companies are charging that compliance with DOMA essentially compels their Human Resource personnel "to investigate the gender of the spouses of our lawfully married employees and then to single out those employees with a same-sex spouse." Ergo the examples of laws which usually consider marriage a "qualifying event" automatically would enroll a spouse in an employee's health insurance. As a result companies now spend time and money weeding out any gay employees who get married.

Citing the plaintiff in the ongoing case, the Commonwealth of Massachusetts, as a primary example, the brief states: [...]

"Our enterprises are located in states, including the Commonwealth of Massachusetts, that recognize the marriages of our employees and colleagues to same-sex spouses, we are also subject to the federal Defence of Marriage Act (DOMA) which precludes federal recognition of these marriages. This dual regime uniquely burdens companies. 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 companies argue that the GOP led House of Representatives through its defending DOMA, is seeking to continue to impose a uniform rule of eligibility for federal marital benefits under its guidelines while at the same time ignoring the state's laws.

According to the brief, this presents a burden on the employers who do business in multiple jurisdictions because marriages are celebrated and recognised 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. This situation is also a Tenth Amendment issue they argue, as it protects certain state powers from federal intrusion.

The plaintiff's (The Commonwealth of Massachusetts) argument that the power to regulate marriage is among these state powers is consistent with the historical practice of employers to look to state law to determine which employees were married for purposes of administering workplace benefits.

DOMA causes Employers to Incur Administrative Burdens and Expenses forcing them to administer dual systems of benefits and payroll, and imposes on them the cost of the workarounds necessary to protect married colleagues. It also unnecessarily burdens these companies into compliance requiring that employers simultaneously treat employees with same-sex spouses as single for the purposes of federal tax withholding, payroll taxes, and workplace benefits that turn, as most do, on marital status, and then married for all other purposes under state laws.

According to attorneys for these companies, many have had to pay consultants to create systems used to track benefits and taxes so they can accommodate the double records. "These dual regimes have spawned an industry of costly compliance specialists," wrote the lawyers in the filing.

"The burden on the small employer is especially onerous," the companies point out. Small businesses can't afford to hire consultants, and "such burdens, standing alone, might chill a smaller employer from employing an otherwise qualified employee because she happens to be married to a same-sex spouse."

The final conclusion as reached by the companies in the legal brief merits close attention said one business consultant who wished to remain anonymous. "If the Republicans truly are concerned about reducing government intrusion and interference with commerce, then based on those factors along- DOMA should be repealed," he argued.

" Our enterprises are engaged in national and international competition—for talent, customers, and business. That competition demands teamwork, and teamwork thrives when the enterprise minimizes distracting differences, and focuses on a common mission. DOMA’s core mandate—that we single out some of our married colleagues, and treat them as a lesser class—upsets this imperative."

The brief was filed on behalf of the following businesses:

• ABT Associates
• Aetna, Inc.
• Akamai Technologies, Inc.
• Alere Inc.
• Bank of New York Mellon Corporation
• Biogen Idec, Inc.
• Blue Cross Blue Shield of Mass., Inc.
• Boston Community Capital, Inc.
• Boston Medical Center Corp.
• Bright Horizons Children’s Centers LLC
• Calvert Investments, Inc.
• CBS Corporation
• The Chubb Corporation
• Communispace Corp.
• Constellation Energy Group, Inc.
• Diageo North America, Inc.
• Eastern Bank Corp.
• Exelon Corp.
• FitCorp Healthcare Centers, Inc.
• Gammelgården, LLC
• Google Inc.
• Integrated Archive Systems, Inc.
• Kimpton Hotel & Restaurant Group, LLC
• Levi Strauss & Co.
• Loring, Wolcott & Coolidge Trust, LLC
• Massachusetts Mutual Life Insurance Co.
• Massachusetts Envelope Company, Inc.
• Massachusetts Financial Services Company
• Microsoft Corp.
• National Grid USA, Inc.
• Nationwide Mutual Insurance Co.
• New Balance Athletic Shoe, Inc.
• New England Cryogenic Center, Inc.
• NIKE, Inc.
• The Ogilvy Group, Inc.
• Onyx Pharmaceuticals, Inc.
• Partners HealthCare System, Inc.
• Reproductive Science Center of New England
• Skyworks Solutions, Inc.
• Starbucks Corp.
• State Street Bank and Trust Co.
• Stonyfield Farm, Inc.
• Sun Life Financial (U.S.) Services Co., Inc.
• Time Warner Cable, Inc.
• Trillium Asset Management Corp.
• W/S Development Associates LLC
• Xerox Corp.
• Zipcar, Inc.

Law and professional firms:

• Burns & Levinson LLP
• Edwards Wildman Palmer LLP
• Foley Hoag LLP
• Goodwin Proctor LLP
• Goulston & Storrs, P.C.
• McCarter & English LLP
• Nixon Peabody LLP
• Parthenon Group LLC
• Ropes & Gray LLP
• Salera Consulting
• Seyfarth Shaw LLP
• Sullivan & Worcester LLP

Professional, trade and civic organizations:

• Greater Boston Chamber of Commerce
• The Boston Foundation
• Massachusetts Association of Health Plans
• Massachusetts Biotechnology Council, Inc.
• The National Fire Protection Association
• Out & Equal Workplace Advocates
• Retailers Association of Massachusetts

And the following cities:

• The City of Boston, MA
• The City of Cambridge, MA
• The City of New York, NY