Over 370 companies, including small businesses and Fortune 100 companies, and business groups showed their support for same-sex couples seeking the right to marry by filing a brief in the same-sex marriage case Obergefell v Hodges pending before the U.S. Supreme Court.
Thirty-seven states and Washington, D.C. permit same-sex marriages under local laws or court decisions. However, a rogue opinion from the Sixth Circuit U.S. Court of Appeals (the federal circuit covering Michigan, Kentucky, Ohio and Tennessee) strayed from this trend and upheld same-sex marriage bans last year, thus opening the door for the U.S. Supreme Court to resolve the same-sex marriage issue once and for all (unless you are Alabama).
The full friend of the court, or amicus, brief filed by the companies and business groups (collectively the “Business Coalition”) is available here. The Business Coalition’s brief reads in part:
[Businesses] already operate against a complicated, uncertain, and frequently changing backdrop of laws and employment-related regulations that increase our administrative costs. Inconsistent state marriage laws impose an added economic burden on American businesses at an estimated cost of over one billion dollars per year. Discriminatory state laws force [Businesses] to implement inconsistent policies across the various jurisdictions in which we operate, our stated corporate principles of diversity and inclusion notwithstanding. Our ability to grow and maintain our businesses by attracting and retaining the best employee talent is hindered. The patchwork of state laws applicable to same-sex marriage thus impairs our business interests and employer/employee relations.
In 2013, our law firm argued in favor of Michigan recognizing same-sex marriage (“Sexual Orientation Discrimination and Michigan Law – Is it a Time for a Change?”). Similar to the reasons set forth in that article, the brief filed by the Business Coalition focused on economic reasons for why same-sex couples should be allowed to marry, rather than the social or civil rights implications raised by the same-sex couples. And the economic reasons in favor of recognizing same-sex couples is compelling.
But in addition to economic reasons, we also noted that providing same-sex couples equal access to marriage licenses was consistent with Michigan’s considerable history at being in front of protecting the rights of individuals. In this regard, we noted:
[T]here are enough economical and pro-business reasons to provide compelling reasons for why Michigan’s economy would likely benefit from restricting discrimination based on sexual orientation. And such a restriction would certainly be consistent with Michigan’s long-standing tradition of taking the lead in protecting individuals’ civil rights. In fact, going back to 1955 – almost a decade before the federal government passed the federal civil rights act – the Michigan legislature passed the Fair Employment Practices Act, which guaranteed the opportunity of Michiganders to gain employment regardless of race, color, religion, or national origin. Also, as early as 1983 the Michigan Department Rights Commission issued a statement that the state’s Civil Rights Act should be amended to prohibit discrimination based on sexual orientation.
Unfortunately, one of the prominent names listed as urging the U.S. Supreme Court to deny same-sex couples the right to marry, is Michigan’s Governor Rick Snyder. Truth be told, this is not likely a cause Governor Rick Snyder supports or cared to get behind in the first place given his pragmatic political approach and dogmatic focus on creating a thriving business climate in Michigan. In fact, this focus was embodied in Gov. Snyder’s 2014 campaign tagline, “Michigan is the Nation’s Comeback State” following significant job gains and other business development.
Even so, before the Business Coalition brief was filed, Michigan was at odds with the legal reasoning guiding the majority of the state and federal courts and legislatures addressing same-sex couples right to marry. Now, however, Michigan is clearly at odds with the sort of companies that it should be trying to attract. Hopefully Michigan can “comeback” from being on the wrong side of this issue.