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Businesses Weigh in on DOMA with Amicus Brief

By Robyn Hagan Cain on March 01, 2013 | Last updated on March 21, 2019

If you want to get away from discussions of the Supreme Court's same sex marriage cases this month, you'll need to institute a total media blackout.

And you'll have to stop talking to other businesses.

This week, hundreds of American companies signed on to an amicus brief urging the Supreme Court to strike down Section 3 of the Defense of Marriage Act (DOMA). From Goldman Sachs to Google, Nike to Twitter, Adobe to Zynga, numerous titans of American industry want the Court to overrule the law.

Supreme Court Rule 37 states, “An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.”

So what is the “relevant matter” that the businesses wanted to bring to the Court’s attention? The impact of DOMA on employee morale. In the interest statement, the amici explain:

Amici are employers or associations of employers, and we share a desire to attract, retain, and secure a talented workforce. We are located in or operate in states that recognize marriages of certain of our employees and colleagues to spouses of the same sex. At the same time, we are subject to section 3 of 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, to unnecessary cost and administrative complexity, and regardless of our business or professional judgment forces us to treat one class of our lawfully married employees differently than another, when our success depends upon the welfare and morale of all employees.

Will the business’ interests sway the justices? The Court occasionally refers to amicus briefs in its decision. (Last year, for example, the Yale Law School Ethics Bureau Brief got a shout-out in a Maple v. Thomas footnote.) We’ll see in June if corporate interests played a role in the outcome.

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