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Businesses call Defense of Marriage Act unfair

Filing for top court says same-sex couples suffer

Nearly 300 companies and business groups across the country, including many prominent Massachusetts firms, are asking the US Supreme Court to strike down the Defense of Marriage Act, saying it forces them to discriminate against married gay employees.

A who’s who of corporate America signed on to a friend-of-the-court brief filed Wednesday. The group of 278 businesses includes the Bay State’s EMC Corp., State Street Corp., Akamai Technologies Inc., and a number of law firms and health insurers.

“The federal law forces an employer to put its employees in two different castes,” said Sabin Willett, a partner with the Boston law firm Bingham McCutchen, which wrote the brief. “DOMA is bad for business.”


The stand is the latest sign that gay marriage is gaining greater acceptance in mainstream America, just 10 years after Massachusetts became the first state to legalize it.

The Obama administration last week asked the Supreme Court to side with a lower court to strike down the Defense of Marriage Act — known as ­DOMA — which defines marriage as between one man and one woman.

That was followed by Wednesday’s filing by businesses, from Wall Street to Silicon Valley, adding their legal objection to DOMA. The new court brief was the most sweeping of its kind yet, as a major swath of corporate America stood up to argue that treating married employees differently based on whether they are gay or straight is unfair and a cost burden.

Nationally, companies that signed the brief included high-tech giants Google Inc. and ­Apple Inc., Wall Street’s Goldman Sachs Group, and the Walt Disney Co.

The group also included Bain & Co., the Boston consulting firm that launched Mitt Romney’s career before he started Bain Capital. Romney, a former Massachusetts governor, opposed gay marriage when it became legal here in 2004 and opposed it in his campaign for president last year.


“We have always felt that our employees should be ­focused on why we brought them to the company,’’ said Paul T. Dacier, executive vice president and general counsel at EMC, a Hopkinton-based computer storage company. “We do not want them concerned about their benefits, their marital status, and how they’re treated.”

An amicus — or “friend of the court” — brief is filed by a person or group that has a stake in, and knowledge of, the legal issues at hand.

The filer is not an official party to the case, but is allowed to bring issues to the court’s attention.

Under current law, gay employees who are married must pay taxes on health benefits provided to a spouse, unlike their straight peers. And they can be subject to a number of other tax and benefit issues as well, according to the American Benefits Council, which also joined the brief, calling DOMA “an unnecessary and troublesome obstacle.”

The Supreme Court is scheduled to hear the case of Windsor v. United States on March 27. It started with a lawsuit brought by a New York woman, Edith Windsor, whose spouse, Thea Spyer, died in 2009, triggering $363,000 in estate taxes that Windsor would not have owed if she had been married to a man.

A lower court ruled in Windsor’s case that DOMA was unconstitutional in prohibiting the federal government from recognizing the legal marriages of same-sex couples. The businesses that filed the brief Wednesday are asking the Supreme Court to agree with the lower court, and throw out the law.


They said the law “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.”

In a separate action earlier this week, scores of prominent Republicans said they would file an amicus brief in a related case, asking the high court to strike down California’s Proposition 8 banning same-sex marriage. Former Massachusetts governors William Weld, Jane Swift, and Paul Cellucci all signed that brief.

The number of businesses supporting an overturn of DOMA has quadrupled since 2011, when Attorney General Martha Coakley filed an amicus brief on a different gay marriage case. Eastern Bank of Boston was one of the participants then and joined the latest effort as well.

“We’re trying to protect the rights of our employees,’’ said Richard Holbrook, chief executive of Eastern Bank.

Now, he noted, “It’s a very broad brush of American companies who all have obviously understood that there’s some injustice being done that should be corrected.”

The US Chamber of Commerce said it had not filed a brief and had no comment. The Family Research Council, a Washington group that opposes gay marriage, last month filed amicus briefs in defense of ­DOMA.

Tom McClusky, vice president for government ­affairs at the council, said of the brief by the business interests: “It’s certainly unfortunate. The premise is that it’s good for business and attracts business to states. But most of the states that have marriage amendments are also states that are doing rather well financially.”


He added, “You might be attracting some business, but you’re also detracting lots of other business.”

It’s unclear to what extent the Supreme Court will take the view of businesses into account when it hears the case. But Lee Swislow, executive director of the Gay & Lesbian Advocates & Defenders, a Boston group that’s been working on the amicus briefs, said the broad support of companies was important for the justices to see.

“It indicates that support for marriage equality isn’t some out-there kind of idea,” she said. “These businesses know what we’ve been saying is true — DOMA is bad for people. It’s bad for employees, it’s bad for business.”

Beth Healy can be reached at bhealy@globe.com.