Big names in tech come out for same-sex marriage

Facebook, Twitter, and Google among those that argue that DOMA negatively affects businesses

Financial trends and news by Steven Loeb
February 27, 2013
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Silicon Valley is a fairly liberal place. In the 2012 election, a total of 3,299 Silicon Valley employees gave $2,462,038 to Barack Obama's reelection campaign. In contrast, only 528 Silicon Valley employees gave Mitt Romney a total of $357,438. Sure, Mark Zuckerberg threw a fundraiser for Chris Christie earlier this month, but I think it is fair to say that the majority of those in the tech sector fall on the left side of the aisle.

That is why I was not surprised to see a number of prominent Silicon Valley companies sign onto an amicus brief that was sent to the United States Supreme Court Wednesday, in which the companies came out against the Defense of Marriage Act (DOMA), and in support of gay marriage. 

An amicus brief is one sent by parties not directly involved in the lawsuit or legislation at hand. Tech companies that put their names on the brief include Adobe, Amazon, Apple, Cisco, eBay, Facebook, Google, Intel, Intuit, Microsoft, Salesforce, Twitter and Zynga.

The brief, while obviously taking a socially liberal point of view regarding gay marriage, makes the case for gay marriage by saying that it would, in fact, be good for businesses. The law, it said, creates an unfair burden on the part of the business to not only discriminate against certain employees, but to deal with a more complicated tax code as well.

"In this brief, amici show how the burden of DOMA’s dual regime is keenly felt by organizations that conduct operations or do business in jurisdictions that authorize or recognize marriage between two people of the same sex," it says in the brief.

While DOMA is meant to "impose a uniform rule of eligibility for federal marital benefits," the companies argue that it actually forces them to discriminate. And this, ultimately, hurts businesses who have to offer both the best benefits to attract the best employees.

"Benefits packages—especially health-care and retirement benefits—are a direct contributor to employee loyalty. Satisfied and engaged workers are more productive and perform better across a variety of metrics than less-satisfied colleagues. Workplace benefits enhance the employer/employee relationship, which in turn is a key to institutional success. To compete effectively in the modern employment market, amici strive to offer workplace benefits to their employees on an equitable basis."

DOMA strains the relationship between the employee and the employer, the brief says, as those not receiving benefits will feel discriminated against by not receiving the same benefits packages as other employees, and opens companies up to the risk of litigation.

"The practical fact is that DOMA makes the employer the unwilling agent of federally-required disparate treatment of lawfully married employees. Whatever the lack of merit of a formal legal challenge, disparate treatment in the workplace imposed by DOMA fosters workplace distress, and practical experience teaches that workplace distress increases the risk of the employer’s having to respond, at its own expense, to claims of the aggrieved."

In addition to the problems facing businesses due to benefits, DOMA also complicates the tax code for states that legally recognize same-sex marriages that are not recognized federally. 

"Because marriages of same-sex couples are not recognized federally, but are recognized by many jurisdictions, DOMA’s regime obliges an employer to maintain systems capable of tracking married employees by spousal gender—even when the employer has no current employee with a same-sex spouse. Confusion abounds, and even sophisticated employers struggle."

For example, Yale University ran into trouble in 2011 when it was revealed that it had failed to withhold taxes for the imputed value of spousal healthcare coverage the year before. This amount was then deducted from those employee paychecks in 2011.

"Such incidents unnecessarily strain the employer-employee relationship and attract unwanted attention from the I.R.S."

Ultimately, the brief argues, DOMA is a destructive law that damages business in the long run.

"For many employers, DOMA does violence to the morale of the institution itself," the brief states. "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."

By talking about same-sex marriage in terms of business, rather than as a simple moral issue, these companies may have found an argument that could persuade some conversatives to rethink their position.

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