News Common Sense: Businesses Refuse to Arrive Late on Same-Sex Marriage

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Common Sense: Businesses Refuse to Arrive Late on Same-Sex Marriage
Mar 1st 2013, 15:28

When the Human Rights Campaign approached Lloyd Blankfein, Goldman Sachs' chairman and chief executive, a few years ago about making a short commercial in support of same-sex marriage, Mr. Blankfein said he had the impression he'd be one of a number of prominent business executives taking a public stand.

Supporters of gay marriage at the state capitol in St. Paul, Minn., last month.

As it turned out, he was the only one. "It was a little lonely out there," he said.

It's not lonely anymore. This week, Goldman Sachs was one of more than 100 corporations that lodged their support for same-sex marriage in two briefs filed with the Supreme Court. "I think people wanted to attach themselves to what may be the last great civil rights issue of our time," Mr. Blankfein said.

Even the authors of the briefs seemed surprised by the wave of corporate support. "What's remarkable is how fast this happened," Joshua Rosenkranz, a partner at Orrick Herrington & Sutcliffe, told me as his brief was about to be filed on Thursday. "When I first started working on this issue, people said gay marriage was an idea whose time hadn't yet come. Even people in the gay rights community said that. When we started to try to get corporate support, I was a little apprehensive. But I've been bowled over. Corporate America is not only already there, but they're passionate about it. For them, it's not just a human rights issue, it's a business imperative."

P. Sabin Willett, a partner at Bingham McCutchen and an author of the other brief, said his group, too, had to turn away companies. "I'd say this really metastasized during the last week," he said. "Companies were calling and asking to join. We got a call from a Fortune 50 company on Monday. I said, 'Can you get everything done in an hour?' We could have had many more with another week." The deadline for filing the briefs was Thursday.

Historians told me there is little, if any, precedent for such early and extensive corporate support of a civil rights issue that remains, in at least many quarters, highly controversial. "By and large, corporations were not leaders but laggards in this process," said Gavin Wright, professor of American economic history at Stanford and author of "Sharing the Prize," an economic history of the civil rights movement.  "They supported a public accommodations law only after sit-ins and boycotts inflicted heavy losses and it became clear that these pressures were not going to fade away as the latest student fad.  On employment, even leading textile firms resisted and dragged their feet, certainly not testifying in support of civil rights legislation." But that changed, he said, "when they found that desegregation actually worked."

Corporations largely steered clear of the Equal Rights Amendment, and played little role decades ago in the early stages of the women's movement. And while many companies have joined in Supreme Court briefs in recent years supporting affirmative action and diversity in the workplace, those moves came long after landmark Supreme Court cases like Bakke in 1978, in which a white male student challenged affirmative action in admission at the medical school at the University of California, Davis. No companies filed briefs in the Bakke case, and the United States Chamber of Commerce filed one opposing affirmative action.

By contrast, corporations are weighing in on the gay marriage issue in the first cases to reach the Supreme Court.

Given corporations' traditional reluctance to challenge the status quo, this early stand is all the more surprising. Until now, many large consumer companies seemed to fear that taking a stand might prompt organized boycotts. Of course, given the presence on the briefs of so many companies like Armani, Abercrombie & Fitch, eBay, Estée Lauder, Facebook, Google, Nike, Office Depot and Tiffany, it might be hard for protesters to know where to begin.

"I think you'll find that, historically, most companies have had a policy against taking a stand or filing amicus briefs, and then only if there is a direct business impact," Mr. Willett said. "They don't want to get involved in social issues. To see this many businesses rallying behind this cause tells you that it's a real business issue."

Michael J. Klarman, professor of constitutional law at Harvard Law School and author of "From the Closet to the Altar," a legal history of same-sex marriage, said, "They wouldn't have signed this even five years ago," and added that the briefs might have a significant impact. He said a brief signed by Fortune 500 companies supporting affirmative action in a 2003 Supreme Court case may have influenced Justice Sandra Day O'Connor, who supported race-based affirmative action after having consistently opposed it before then.

Plaintiffs in the latest cases are seeking to overturn the Defense of Marriage Act, which denies federal benefits and recognition to married same-sex couples, and to declare unconstitutional California's ban on gay marriage. In one case, Goldman was one of 278 signers, most of them businesses, and in the other, it was one of 100 major corporations that signed. They include some of America's largest and best-known corporations — from "Apple to Zynga," as one lawyer put it.

This, in part, reflects the rapid and broad public shift in support of same-sex marriage, and the companies signing the briefs are concentrated in states where such marriages are now legal, or in relatively liberal states like California. (The only North Carolina company to sign the briefs is Replacements Limited, which I wrote about last year after North Carolina approved a constitutional amendment banning gay marriage.)

Still, even a few years ago, such support would have seemed unthinkable. After Mr. Blankfein appeared in the Human Rights Campaign video, Goldman Sachs lost at least one client, a large institution with religious ties. Mr. Blankfein became the go-to chief executive on the issue, speaking at events and on panels, traveling to Minnesota last summer in advance of that state's vote on a constitutional amendment to ban same-sex marriage.

"I wouldn't normally speak out on something like this," Mr. Blankfein told me. "People are only interested in what I have to say because of my position at Goldman Sachs, and I don't believe it's appropriate for me to express my personal views as being those of the firm. But in this case, this is a business issue. We're a people business. They're the single most important thing to us. We have a very important gay community at the firm, including members of senior management and people on the management committee. We want to treat our people fairly and equally. This happens to coincide with my personal views, but that's not why we're doing this."

Mr. Blankfein said Theodore Olson, a solicitor general under George W. Bush and one of the lawyers who will be arguing the California case before the Supreme Court, spoke on the case at a Goldman town hall meeting. "There was an overflow crowd and it was one of the best meetings we've ever had," he said. Others in the firm "have been overwhelmingly supportive."

Lawyers writing the amicus briefs have hewed closely to the business issues in the case, leaving social and political issues to others. Among them are tax and benefits issues, administrative costs, employee morale and the ability to attract gay employees and to move them to locations where gay marriage is prohibited. "We leave the constitutional issues to the litigants," Mr. Willett said. "We want to show the perspective that DOMA is bad for business. It undermines teamwork, efficiency and causes needless distractions." Mr. Rosenkranz added, "I wanted to capture vividly that marriage equality is now a mainstream American issue, and demonstrate that corporate America embraces equality."

In statements, several companies signing the briefs offered ringing endorsements of this view. Citigroup said it supports a "work environment where diversity is embraced and where our differences are valued and respected."

A Levi Strauss spokeswoman said, "We believe that the success of a business depends on the ability to recruit and retain the best employees in a global market for talent — regardless of their gender, race or sexual preference."

A spokeswoman for Johnson & Johnson said, "We believe that all lawfully married employees should be treated by our company in the same way."

But even with hundreds of companies expressing such views, a majority of the Fortune 500, and even more of the smaller companies in broader measures like the Wilshire 5000, didn't sign the briefs and haven't taken any position on the issue. Among them is the world's largest company by market capitalization, Exxon Mobil, whose shareholders last year overwhelmingly defeated a proposal to extend employee benefits to same-sex partners.

The conservative Family Research Council, which filed a brief opposing gay marriage, blamed "a corporate environment dictated by wealthy, pro-homosexual activists" for the growing corporate support of same-sex marriage and added, "We applaud Exxon Mobil for refusing to cede the moral high ground to the special interests of the left." A spokesman for the council told me he thought that the business issues cited in the briefs were "trivial" and that companies signing the briefs were "motivated by political correctness, pure and simple."

Still, as of Thursday's deadline, no businesses had filed a brief opposing gay marriage or attempting to counter the business arguments put forward in the corporate briefs.

Whether the briefs will have any influence on members of the Supreme Court remains to be seen. "Nobody wants to declare victory," Mr. Blankfein said. "We have a conservative Supreme Court. But look at the wedding announcements in The Times. It seems like every third one is a gay couple. Everybody seems happy and life is going on. I think the time has come."

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