Employers Weigh in on the Constitutionality of DOMA

by John Marsella

An amicus brief filed by 286 companies and business groups, including: Amazon, Google, Apple, Facebook, EBay, Nike, and many others, sheds light on employers’ view of the Defense of Marriage Act (DOMA). DOMA was enacted in Congress in 1996 and signed by President Clinton. Section 3 of DOMA defines marriage as a legal union between one man and one woman as husband and wife. The enactment of DOMA essentially means that no state has to recognize a same sex marriage, even if it the marriage was lawful in another state. The federal government relied on the full faith and credit clause of the Constitution to pass DOMA and for the first time in history the clause was invoked to foster variation rather than promote uniformity among the states. While DOMA does not directly touch on the employment relationship it affects many benefits provided to the working family; including health insurance, protected leave, and retirement.

The Constitutionality of DOMA will be tested in the upcoming case Windsor v. United States. In December of 2012 a writ of certiorari was granted and oral arguments are scheduled to be heard March 27, 2013. The central issue of the case is whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State.

Many civil rights organizations have spoken out against DOMA; now employers have entered the discussion with their amicus brief. In the brief employers argue that although marriages are celebrated and recognized under state law – DOMA, which withholds marital benefits from some lawful marriages but not others, requires employers to treat employees differently from another, forcing discriminatory treatment of spousal retirement and health care benefits. The brief goes on to argue that DOMA imposes difficult compliance burdens on employers, undermines a workplace ethos of transparent fairness, and strains the employer/employee relationship. Considering all of the implications of DOMA, it will be interesting to see how persuasive the employer’s point of view will be, but look forward to seeing more during oral arguments.