In March, the U.S. Supreme Court will hear two landmark cases involving the rights of same-sex couples to marry. That these two cases are before the country’s highest court is a testament to just how far along the cause of same-sex marriage has come in recent years, as marriage advocates won game-changing electoral battles in 2011 and 2012 in New York, Maryland, Maine and here in Washington State.
However, even with this growing momentum, an article from Bloomberg caught my eye this week.
Bloomberg reports that 60 companies have signed an amicus brief encouraging the Supreme Court to recognize a Constitutional right to marriage for all citizens throughout the entire United States, something the court could do in its upcoming review of California’s controversial ballot initiative Proposition 8.
Furthermore, in the second of the two cases, Bloomberg notes that another 200 companies will formally encourage the court to overturn the Defense of Marriage Act (DOMA) which federally defines marriage as being between a man and a woman and denies legally married same-sex couples tax breaks and other federal benefits.
This is notable not because business support for gay rights is a new phenomenon. Over the last year, Washington State companies including Microsoft*, Nordstrom, Starbucks and Amazon have endorsed same-sex marriage legislation, both vocally and financially.
What does make this news notable is twofold. First, the sheer number of businesses declaring public support for the nationwide legalization of same-sex marriage is significant. Second, and related, is the rationale behind the decision of these companies to file such a brief: that remaining state bans on same-sex marriage hurt employee morale and recruiting, and that the existing state-by-state patchwork of laws governing these unions creates a significant burden on businesses operating nationwide.
It’s not surprising that such companies would want consistency in the law from coast to coast, and the list of American brands joining the brief is impressive – including household names like Apple, Google, Goldman Sachs, Morgan Stanley, Microsoft*, Office Depot, Amazon and many others.
This link between an issue like same-sex marriage and business outcomes is not just a major development in the push for gay rights, but also an acknowledgement that brands can and should play a major role in the public sphere. Not only are these companies meeting their accountability to a wide range of stakeholders ranging from employees to customers, but they are taking a practical approach to an issue they have identified as material to their business.
This case plays out in the marketing arena as well. A number of companies have adopted LGBT-inclusive marketing and advertising in recent months – see Oreo’s gay pride-themed cookie, J.C. Penney’s Father’s Day ad featuring a same-sex couple and Amazon’s new ad for its Kindle featuring a married same-sex pair.
But the decision by so many U.S. businesses to file a public brief with the Supreme Court goes beyond marketing. It’s an example of companies linking a social issue to business outcomes, both internal (like employee retention) and external (read: sales). By championing the cause, these companies have adopted a bold means of addressing issues material to both their business and ESG (environment, social and governance) objectives, and that’s a significant observation for those of us in the corporate social responsibility world.
As Bloomberg points out, there’s no guarantee the Supreme Court will consider briefs like this in its rulings. Paired with a separate brief filed by prominent Republicans who have declared support for same-sex marriage, this strategy is likely aimed at convincing the moderate Justice Anthony Kennedy, generally viewed as the swing vote in these two cases.
There’s no guarantee how the court will rule, either, though the views of corporate America and the general public have evolved remarkably quickly. Regardless of the outcomes in these two cases, the acknowledgment by U.S. companies that they can and should advocate on behalf of this kind of an issue signifies a major development in how corporations define and treat issues material to their business.