Dozens of big U.S. companies to back gay marriage
February 26, 2013: 5:23 PM ET
Exclusive:
Scores of corporations will file a Supreme Court brief favoring gay
marriage later this week. Signatories will include Apple, Facebook,
Intel, and Morgan Stanley.
By Roger Parloff
FORTUNE --
On Thursday, dozens of American corporations, including Apple,Alcoa,
Facebook, eBay, Intel, and Morgan Stanley will submit an amicus brief in
the landmark Hollingsworth v. Perry case broadly
arguing to the U.S. Supreme Court that laws banning same-sex marriages,
like California's ballot initiative Proposition 8, are unconstitutional
under the Due Process and Equal Protection Clauses.
According
to a draft copy obtained byFortune, the companies argue that such laws
"send an unmistakeable signal that same-sex couples are in some way
inferior to opposite-sex couples, a proposition
that is anathema to amici's commitment to equality and fair treatment
to all."
At least
60 companies had committed to signing the brief as of Tuesday evening,
according to Joshua Rosenkranz, who is counsel of record on the brief
and head of the Supreme Court and appellate litigation
practice at Orrick, Herrington & Sutcliffe. That number is expected
to rise by Thursday, however, according to Rosenkranz. Others who have
already committed to sign include AIG, Becton Dickinson, Cisco, Cummins,
Kimpton, Levi Strauss, McGraw Hill, NCR, Nike,
Office Depot, Oracle, Panasonic, Qualcomm, and Xerox.
Though the
brief adopts by reference all of the arguments of the main brief
challenging the constitutionality of Prop 8—filed last week by Theodore
Olson of Gibson Dunn & Crutcher and David Boies
of Boies, Schiller & Flexner—it also argues that "recognizing the
rights of same-sex couples to marry is more than a constitutional issue.
It is a business imperative."
Fleshing
out that contention, the companies argue: "By singling out a group for
less favorable treatment, Proposition 8 impedes businesses from
achieving the market's ideal of efficient operations—particularly
in recruiting, hiring, and retaining talented people who are in the
best position to operate at their highest capacity. Amici are competing
domestically and internationally with companies inside and outside the
United States in places where all couples, regardless
of whether they are of the same sex, are afforded equal access to
marriage."
Specifically,
it suggests that when "potential recruits or employees are members of a
same-sex couple," they "may forgo the opportunity to work in
California, and prefer other states (like Iowa,
New York and Massachusetts) or other nations (like Spain, Sweden,
Denmark, the Netherlands, Portugal, or Belgium) where they can be
married and obtain equal treatment and respect under the law."
Laws like
Prop 8 "leave companies in the untenable position of being compelled
implicitly to endorse the second-class status to which their gay and
lesbian employees, clients, customers, and business
associates are relegated," the brief argues. "Until the law no longer
relegates same-sex couples to second-class status as inferior "domestic
partnerships," our adherence to the law compels us to abide by a
distinction that stigmatizes and dehumanizes gay
men and lesbians."
In an
apparent effort to avoid giving offense to customers, vendors, and
employees who may favor prohibitions against gay marriage, the brief
states in a footnote that the signatory companies "do
not mean to suggest" that such laws are the "product of ill will" on
anyone's part.
Finally,
leaving no stone unturned, the draft brief argues that "increased
wedding celebrations can mean additional revenue for many
businesses—such as businesses involved directly in wedding celebrations,
businesses that produce goods often given as gifts to newlyweds, and
businesses that benefit from increased tourism from guests who travel to
the wedding."
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