By Carlyn Kolker
(Reuters) - A brief filed by employers on Wednesday asking
the Supreme Court to strike down the federal Defense of Marriage
Act highlighted administrative burdens caused by the law.
Because same-sex marriage is legal in some states while the
Defense of Marriage Act limits marriage to opposite-sex couples,
the law creates dual regimes that employers must navigate,
according to the brief.
The brief was written by Sabin Willett of the law firm
Bingham McCutchen on behalf of companies including Google Inc,
Pfizer Inc and Starbucks Corp. Thomson Reuters, the parent
company of Reuters and Westlaw, was among the signatories.
"Far from creating uniformity, DOMA obliges employers to
treat an employee married to someone of the same sex and an
employee married to someone of a different sex unequally," the
The brief centers on the technical issues faced by employers
and their legal, human resource and compliance managers, rather
than on constitutional issues.
The Defense of Marriage Act creates compliance difficulties
for employers in the administration of healthcare, leaves of
absence and retirement benefits, it said.
For example, the act mandates that employers treat health
benefits to a same-sex spouse as taxable income, according to
the brief. Payments to health savings accounts or flexible
spending accounts are similarly affected. The result is that tax
and wage forms for employees who are married to same-sex
partners are different from forms for employees married to
Under the Defense of Marriage Act, employees married to
same-sex partners get different paid and unpaid leave from
employees married to opposite-sex partners, and employee
retirement benefits are similarly affected, the brief said.
"These dual regimes have spawned an industry of costly
compliance specialists," it said. Companies must pay attorneys,
benefits experts and payroll personnel to sort through and
maintain different regimes, depending on the states where
employees reside. They must also rewrite employee forms
according to legal developments in differing states, according
to the brief.
'A DISASTER' DEALING WITH DOMA
The patchwork of different tax and healthcare structures
exposes companies to potential litigation, the brief said,
because companies are left on their own to sort out different
regulatory regimes. It also affects employee morale, it said.
"HR departments would tell you it is a disaster trying to
deal with DOMA when you are a large employer, because you have
these employees who are legally married, but now you've got to
put them in a different box for W-2s, for ERISA, for retirement
benefits, and it's really vexing," Willett told Reuters.
Signatories to the brief include an array of law firms,
including firms that specialize in defending corporations in
labor and employment cases, such as Seyfarth Shaw, Littler
Mendelson and Peabody & Arnold.
The law firm Orrick, Herrington & Sutcliffe was expected to
file a brief on Thursday on behalf of employers in a related
Supreme Court case. That case questions a California law, known
as Proposition 8, that bans same-sex marriage in the state.
Joshua Rosenkranz, the author of that brief, told Reuters he
had been struck by how far the debate over same-sex marriage had
progressed in the past decade.
"I really wanted to do a brief that would capture that
progress, a brief that would demonstrate that marriage equality
was now a mainstream American issue," he said.
Corporations try to create environments that attract and
retain the best talent, and they find it "maddening" that states
were undermining them, he said.
Rosenkranz said his brief started out with Apple Inc,
Facebook Inc and Nike Inc, and quickly grew. "My colleagues at
Orrick reached out to our clients," he said. "And our clients
reached out to their counterparts at other companies."
The two cases are to be argued before the Supreme Court on
March 26 and 27.
(Additional reporting by Lawrence Hurley and Aruna
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