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Gay marriage: why corporations are coming out against DOMA

Nearly 300 US companies filed a brief on behalf of the New York woman whose challenge of DOMA has reached the Supreme Court. Why support gay marriage? For one, it's just good business.

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Gay advocacy groups say DOMA should be struck down for reasons of a creative and harmonious workplace

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"For companies to succeed, they must be able to hire talented workers and give them a positive environment in which to live and work,” says Thomas Watson, president of  Love Honor Cherish, a Los Angeles-based, nonprofit, civil rights organization.  “Of course, some talented workers happen to be gay or lesbian. But no matter how good the job may be, many of those workers understandably don’t want to live in states or countries that fail to recognize their relationships and their families.”

"Proposition 8 inflicts real harm on businesses who are committed to diversity and inclusion because it forces them to treat their gay and lesbian employees like second-class citizens," says Elizabeth Riel, communications adviser for American Foundation for Equal Rights, the Los Angeles-based nonprofit that challenged Prop. 8 in federal court.

Beyond moral questions, however, many academics and business analysts say companies have several purely economic reasons to embrace gay marriage.

“Businesses know the research shows married people tend to be healthier and live longer, are less depressed and have fewer heart attacks,” says Alan Wolfe, director of the Boisi Center for Religion and American Public Life at Boston College. “We don’t know that about gays yet, but employers are for now assuming that for the same reason they prefer heterosexual married employees, they prefer gay married to gay single.” He says whether or not the studies are true, “corporate execs believe it to be true and act accordingly.”

Shannon Price Minter, legal director for the  National Center for Lesbian Rights in San Francisco, says  “Corporations want to be able to keep their best talent and offer the same types of benefits and protections to all of their employees in every state across the country. DOMA creates inequality and require employers to discriminate against some of their own workers, which is harmful both to businesses and to their employees. From a business perspective, opposing DOMA is a no-brainer."

Some analysts say the legal justification for striking down DOMA could come from invoking the Interstate Commerce Clause, which DOMA appears to undermine because of the inequities it creates on taxation and inheritances for employees living in different states.

“It’s hard for courts to intervene for moral reasons, but if it can be shown that there are practical inequities over matters relating to paychecks and money, bankruptcy or survivor benefits issues, that’s where the ruling could focus,” says Janet Johnson, a constitutional lawyer in private practice in Florida.

In the amicus brief filed on Wednesday, Sabin Willett, an attorney for the corporations, wrote that DOMA "requires that employers treat one employee differently from another, when each is married, and each marriage is equally lawful."

He said that because 12 states in total either authorize same-sex marriage or recognize marriages that have been performed in other states, DOMA does not create any uniformity nationwide and that creates a burden for employers, particularly those who do business nationwide.

Mr. Willett also wrote that the law forces companies to discriminate, sometimes in contravention of their own internal policies and local laws, when dealing with health-care plans and other benefits.

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