Microsoft, Starbucks among 70 others Challenging DOMA

 by Janet I. Tu

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.

DOMA, passed by Congress in 1996, defines marriage as between one man and one woman. It bars the federal government from treating same-sex marriages as legal or granting gay couples federal benefits. That means, for instance, that same-sex couples who married in states such as Massachusetts, where gay marriage is legal, aren't eligible for the benefits that come with federally recognized marriage, such as filing joint federal tax returns or Social Security and immigration-law benefits.

There are about a dozen cases around the country challenging DOMA. The consolidated Massachusetts cases, currently before the First Circuit Court of Appeals in Boston, are the first to reach the federal appellate level, just one step down from the U.S. Supreme Court, according to The San Francisco Chronicle.

The amicus (or friend of the court) brief says, in part:

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.

To attract the best employees, companies have to offer robust benefits and a "workplace ethos of transparent fairness," the brief says. But "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. DOMA enforces discriminatory tax treatment of spousal health care benefits."

DOMA also burdens employers with "the cost and administrative burden of 'workarounds' (employer-created benefit structures attempting to compensate for the discriminatory effects of DOMA)," the brief says, "or leave the married workforce in separate castes."

In essence, the amicus brief argues, "the employer becomes the face of DOMA's discriminatory treatment."