Gay-marriage advocates, aiming to show broad support as the U.S. Supreme Court takes up the issue for the first time, have enlisted Apple Inc. (AAPL), Morgan Stanley (MS) and dozens of Republicans who once held top government positions.
Now they’re eyeing the White House.
President Barack Obama’s administration has until tomorrow to say whether it will join about 60 companies and a largely Republican group that includes six former governors in urging the court to back gay marriage nationwide.
Obama “has not yet said there is a constitutional right to marry, but he has been very careful not to say there isn’t,” said Evan Wolfson, president of Freedom to Marry, a New York-based national gay rights group. “The time for him to say it is is now.”
The justices will hear arguments March 26 on California’s Proposition 8, the 2008 ballot initiative that halted gay marriage in the state after it was allowed for five months.
“No matter how welcoming the corporate culture, it cannot overcome the societal stigma institutionalized by Proposition 8 and similar laws,” the companies will argue.
The Republican brief will include Jon Huntsman Jr., the former presidential candidate and ex-governor of Utah; Christine Todd Whitman, a onetime New Jersey governor who ran the Environmental Protection Agency under President George W. Bush; and three ex-governors of Massachusetts in William Weld, Paul Cellucci and Jane Swift. Gary Johnson, the former New Mexico governor who ran for president last year as a Libertarian, is also part of the group.
In backing gay marriage, they are challenging the predominant view among Republicans. The leading Republicans currently in office, including U.S. House Speaker John Boehner of Ohio, oppose same-sex marriage virtually across the board.
“I don’t think you’re seeing a rift in the Republican Party,” Alan Wilson, the attorney general of South Carolina, said at a Bloomberg Government breakfast in Washington yesterday. Wilson, whose state is one of 20 urging the high court to uphold Proposition 8, says he believes marriage must be between a man and a woman.
Another Republican, Theodore Olson, is leading the legal fight against Proposition 8. Olson served as Bush’s top Supreme Court lawyer.
The publicly traded companies backing gay marriage include Abercrombie & Fitch Co. (ANF), Alcoa Inc. (AA), American International Group Inc. (AIG), Becton Dickinson & Co., EBay Inc. (EBAY), Marsh & McLennan Cos. (MMC), NCR Corp. (NCR), Nike Inc., Oracle Corp. (ORCL), Office Depot Inc. (ODP), Panasonic Corp. (6752), Qualcomm Inc. (QCOM), Sun Life Financial Inc. (SLF), Xerox Corp. (XRX), Zynga Inc. (ZNGA), Barnes & Noble Inc. and Caesars Entertainment Corp.
A larger group of companies -- more than 200, including Goldman Sachs Group Inc. (GS) -- is also poised to side with gay-rights advocates in a second Supreme Court case, involving a federal law that defines marriage as a heterosexual union. Under that law, known as the Defense of Marriage Act, legally married gay couples can’t claim the federal tax breaks and other benefits available to opposite-sex spouses.
The companies in that case are part of a collection of more than 250 employers, including cities, counties and law firms.
Although the high court often ignores so-called friend-of-the-court briefs, at times they can shape the way some justices view a dispute. When the court upheld university affirmative action in 2003, the majority opinion relied on briefs filed by corporations and former military officers touting the benefits of racial diversity.
In a filing last week in the Defense of Marriage Act case, the Obama administration hinted that it may also call on the court to overturn Proposition 8. In arguing against the federal law, U.S. Solicitor General Donald Verrilli said gays have endured a history of discrimination and should be afforded special protection under the Constitution, much like racial minorities and women.
A call to make same-sex marriage a constitutional right would be a shift for Obama, an opponent when he ran for the White House in 2008. Even after announcing his support last year, he has said states should take the lead on the issue.
One possibility is that the administration takes an incremental approach, urging the court to reinstate same-sex marriage in California without affecting the 40 other states that prohibit the practice.
The cases are Hollingsworth v. Perry, 12-144, and United States v. Windsor, 12-307.
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