Nan Hunter

A New Player in the DOMA Game

Filed By Nan Hunter | November 08, 2011 11:00 AM | comments

Filed in: Marriage Equality, Politics
Tags: business organizations, Chamber of Commerce, DOMA, Gill v. OPM, marriage equality, same-sex marriage

A fascinating aspect of the politics of LGBT rights circa 2011 is how this one issue reflects and drives broader trends and cleavages in American politics. For example, it is perhaps the strongest single force behind the growing credit-card.jpgsplit between economic and social conservatives. There is a slow but steady evisceration of support for anti-gay laws based not so much on rights claims as on economic irrationality arguments, the realization that such laws cost businesses actual money.

This dynamic is operating now in the line-up of who's supporting whom in Gill v. OPM, the GLAD challenge to DOMA pending in the First Circuit. To recap: the Department of Justice announced last spring that it would no longer argue that DOMA is constitutional, thus bouncing the ball to Congress, which is essentially always granted standing to defend a federal law if DoJ declines to do so. The Republican House jumped at the chance; the Dem-controlled Senate, no way.

Last week, when briefs were due from amicus groups supporting the plaintiffs' challenge to DOMA, ten were filed. Most were from the usual suspects of gay-supportive organizations: medical and legal professional groups, labor unions, academics, progressive religious groups, and even the majority of Democratic members of the House of Representatives.

But there was a surprising new player in the game.

For the second time of which I am aware, a group of mostly corporate employers and business groups has weighed in on a gay rights issue - on the pro-gay side. In Strauss v. Horton, the San Francisco Chamber of Commerce and three local employers filed an amicus brief arguing that Prop 8 was itself unconstitutional under state law.

In Gill, an amicus brief signed by 70 large employers makes the business case for eliminating DOMA, which is that it costs money and morale to develop systems that comply with state law in those jurisdictions that recognize same-sex marriage while denying such recognition for all federal law purposes:

[A]mici are employers [who] share a desire to attract, retain and secure a talented workforce...This dual regime [of conflicting state and federal law] uniquely burdens amici. It puts us, as employers and enterprises, to unnecessary cost and administrative complexity, and regardless of our business or professional judgment forces us to discriminate against a class of our lawfully-married employees, upon whose welfare and morale our own success in part depends.

The business brief takes no position on which standard of review that the Court of Appeals should apply to sexual orientation classifications, which is the biggest doctrinal question at issue in the case. Rather it takes the classic friend of the court approach: "to advise the Court concerning the impact on the employer of these conflicting legal regimes," with a one-sentence conclusion that the lower court's finding of the unconstitutionality of DOMA should be affirmed.

This brief inaugurates a new subgenre in the litigation of LGBT rights claims. Depending on your political sensibility, it demonstates either the narrowing of gay politics (into purely utilitarian arguments about how to make the status quo work more efficiently) or a broadening of pro-gay forces (by a strategic alliance). Probably both. In any event, I think it's a safe bet that it will serve as the model for more such briefs in the future.

(Imgsrc: Cross-posted at hunter of justice)


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