On Tuesday, advocates got the opportunity to argue before the U.S. Supreme Court why laws banning or refusing to recognize same-sex marriage are discriminatory and unconstitutional.
A decision from the nine justices on whether to strike down California’s Proposition 8 and the federal Defense of Marriage Act won’t come for many months, but already there has been an unprecedented stand made by many corporations to support the cause.
Disney, Viacom and CBS were among the companies in the entertainment industry urging the high court in February to declare DOMA unconstitutional. Other companies signing an amicus brief included Apple, Facebook, Google and Amazon.
It all started on Jan. 26, 2011.
That morning, Massachusetts Attorney General Martha Coakley gave a speech at the Boston Chamber of Commerce discussing her efforts to overturn DOMA. (In 2004, the state became the first to recognize same-sex marriages.) At the end of the speech, many of the executives in attendance told Coakley that they were willing to stand with her as she handled an appeal at the 1st Circuit Court of Appeals.
The following year, on the other coast, another appeal (Golinski v. US OPM) considering the constitutionality of DOMA was being considered at the 9th Circuit. This became the opportunity for many companies in Hollywood and Silicon Valley to jump aboard what would become the business community’s amicus briefs in the same-sex marriage fight.
According to Beth Boland, a partner at Bingham McCutchen, the law firm tasked with writing the appeal, many conference calls and discussions were held during the past year as the Supreme Court readied itself for a historic hearing.
The focus of the amicus brief is how DOMA “impairs employer/employee relationships” by forcing companies to treat employees differently from one another and adds undue compliance burdens on corporations.
For many companies, the logistics of managing a “duel regime” on issues such as tax withholdings, health care coverage and the Family and Medical Leave Act have proved quite burdensome.
Boland says that handling visas for same-sex partners of immigrants has been a “particularly hot issue for entertainment companies.”
But to get involved, more was needed than merely an interest in streamlining back-office operations. Companies had to firmly believe in the larger cause, Boland says. “This was an issue that was very fundamental to these businesses,” she says. “My favorite part of the brief says, ‘For many employers, DOMA does violence to the morale of the institution itself.’ “
The friend of the court brief continues, “Like other persons, legal and natural, amici are motivated by core principles. … Our organizations are engaged in national and international competition — for talent, customers, and business. That competition demands teamwork, and teamwork thrives when the organization 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.”
On its website, Viacom has echoed that sentiment.
“Viacom is proud of our diverse and inclusive global workforce that reflects the rich character of our audiences, our partners and our employees,” wrote deputy general counsel Daniel Mandil in a blog post in July. “We diligently work towards enhancing our own policies that encourage diversity and equality and believe that we have a role to play in supporting important efforts to expand these values across the country and around the world.”
As for what happens now, Boland won’t make predictions.
Thus far, after a few hours of arguments that will continue Wednesday, observers have been seeking signs of how the Supreme Court ultimately will rule.
Justice Anthony Kennedy, seen as the swing vote, offered up some hesitancy about entering “uncharted waters” on a controversial issue, leading some to believe that the high court might punt a sweeping ruling on grounds of improper standing. On the other hand, Kennedy expressed concern about the discrimination being faced by children of same-sex couples.
There also was this exchange between Justice Sonia Sotomayor and Charles Cooper, the lawyer defending Proposition 8:
Sotomayor: “Outside of the marriage context, can you think of any other rational basis for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision-making that the government could make? Denying them a job, not granting them benefits of some sort, any other decision?”
Cooper: “Your honor, I cannot.”