The friend-of-the-court brief asks the U.S. First Circuit Court of Appeals to uphold a 2010 lower court ruling that struck down part of the 1996 Defense of Marriage Act. In that ruling, Judge Joseph L. Tauro said the federal government must recognize gay "marriages" from such states as Massachusetts, Vermont and the other four states where it's legal.
In essence, the brief argues, the Defense of Marriage Act (DOMA) forces the companies to discriminate and prevents their gay employees from receiving federal benefits that other married couples receive. The section of DOMA at issue defines, for federal purposes, marriage as between one man and one woman.
Also signing the Nov. 3 brief were Aetna, Levi, Microsoft, New Balance, Time Warner and Xerox as well as the cities of Boston and Cambridge, Mass., and New York City. All total, 70 businesses, cities, law firms and trade and professional firms signed the brief.
The First Circuit case is further along in the court system than the more high-profile Proposition 8 case out of California.
"Our burden arises because federal law intrudes to conflict with state law, forcing the employer to create two groups of married employees, and to treat one group differently from another," the brief states. "... DOMA forces amici to investigate the gender of the spouses of our lawfully married employees and then to single out those employees with a same-sex spouse."
The Defense of Marriage Act, the brief says, leads to higher taxes on same-sex spouses and harms morale. For instance, a gay employee who adds a spouse to a health care plan must pay taxes on that extra benefit -- something that is not required of a heterosexual employee.
Essentially, the companies are asking the federal government to help them save money. The New York Times reported in May that some companies already are making up for the tax disparity by actually paying the extra tax for gay employees.
The case has huge ramifications. If the lower court ruling is upheld, it will place the United States alongside the 10 or so other countries worldwide that recognize gay "marriage." The case involves two lawsuits -- one filed in 2009 by the Massachusetts attorney general and the other by the homosexual group GLAD (Gay & Lesbian Advocates & Defenders). Massachusetts and GLAD made similar arguments in their original filing.
The House of Representatives is defending DOMA in federal court and has argued that federal benefits should be reserved for heterosexual couples. In September the Bipartisan Legal Advisory Group -- which is representing the House -- filed a brief in the case arguing that striking down part of DOMA would not lead to the uniformity its opponents envision. For instance, the House brief said, a gay couple "married" in a state where it is legal would not be recognized as such if they moved to a state where it is not legal.
"In enacting DOMA, Congress rationally decided to avoid creating such a confusing patchwork in favor of a simple uniform national rule relying on the traditional definition," the House brief states.
The House's brief also argues that DOMA should be upheld because of Congress' desire to promote mother-father homes.
"The traditional definition of marriage reflects the belief that the optimal unit for child-rearing is both a mother and father, i.e., role models of both sexes," the House brief states. "... Congress could and did conclude that retaining the traditional definition rationally advanced an interest in creating an institution that gives children role models of both sexes."
-- focused on families headed by lesbian mothers rather than gay fathers.
-- not examined the adolescent offspring of gay and lesbian parents.
-- used "convenience" samples of mostly white and well-educated partners.
-- used self-report surveys, leading to bias.
Religious groups also have filed a brief in the case. In January, a diverse coalition that includes Southern Baptists, Catholics, Mormons and Jews filed a brief asserting that redefining marriage to include homosexual couples could adversely affect the children raised in such homes. The groups said their argument is not motivated by prejudice but by common sense and social science.
"Research rebuts the suggestion that either fathers or mothers are unnecessary for effective childrearing," the 31-page brief states. "... Through millions of hours of counseling and other ministry over literally centuries, we have seen at close range the enormous benefits that traditional male-female marriage imparts. We have also witnessed the substantial adverse consequences for children, parents, and civil society that often flow from alternative household arrangements."
The friend-of-the-court brief adds, "Our faith communities are intimately familiar with the personal tragedies so often associated with fatherless and motherless parenting and family disintegration."
Michael Foust is associate editor of Baptist Press. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress) and in your email (baptistpress.com/SubscribeBP.asp).
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