Back in July 2012, I posted a blog to let you know that Viacom had joined a broad group of employers to file an amicus brief in the United States Court of Appeals for the Ninth Circuit challenging the constitutionality of the Defense of Marriage Act (DOMA). Then in February 2013, a DOMA case out of the Second Circuit called United States v. Windsor went up to the Supreme Court. Once again, we joined an amicus brief calling for DOMA to be struck down as unconstitutional. In both cases, our briefs focused the courts on the perspective of employers. We told the Supreme Court:
Amici are employers or associations of employers, and we share a desire to attract, retain, and secure a talented workforce. We are located in or operate in states that recognize marriages of certain of our employees and colleagues to spouses of the same sex. . . . [DOMA] precludes federal recognition of these marriages. This dual regime uniquely burdens amici. It puts us, as employers, to unnecessary cost and administrative complexity, and regardless of our business or professional judgment forces us to treat one class of our lawfully married employees differently than another, when our success depends upon the welfare and morale of all employees.
In a June 26, 2013 decision, the Supreme Court struck down DOMA as an unconstitutional deprivation of the equal liberty of all persons guaranteed by the Fifth Amendment. That was an important day for the cause of equality and diversity in America and we were proud to have been a part of it.
But the Supreme Court’s DOMA decision did not reach the critical issue of whether there is a constitutional right for same-sex couples to marry. As a result, laws in many states still refuse to permit same-sex marriages or even to recognize such marriages when they have been celebrated in states that do recognize them. Virginia, West Virginia, North Carolina and South Carolina – all states within the jurisdiction of the United States Court of Appeals for the Fourth Circuit – are among the states that do not recognize same-sex marriages. This past February, in a case called Bostic v. Rainey, a United States District Judge in Norfolk, Virginia ruled that Virginia’s prohibition on same-sex marriage “infringes on the rights to due process and equal protection guaranteed . . . under the Fourteenth Amendment of the United States Constitution.” Bostic relied directly on Loving v. Virginia in which the Supreme Court ruled – only 47 years ago – that Virginia’s law prohibiting interracial marriage was unconstitutional under the very same Civil War amendment.
A month before the District Court in Bostic issued its decision, the state’s new Attorney General had already informed the court that Virginia believed its own laws regarding same-sex marriages were unconstitutional. Nevertheless, the Clerk of the Circuit Court of Prince William County, Virginia (who registers marriages in that county) was permitted to appeal the Bostic decision to the Fourth Circuit. Last Friday, Viacom once again joined an amicus brief of employers urging the Court of Appeals to affirm the decision of the lower court. As we say in that brief:
The denial of marriage rights to same-sex couples in Virginia goes against our core values and principles. As employers, we recognize the value of diversity, and we want to do business in jurisdictions that similarly understand the need for a society that enables all married persons to “live with pride in themselves and their unions,” and that supports us in honoring all of our married employees.
Viacom is proud of our diverse and inclusive global workforce that reflects the rich character of our audiences, our partners and our employees. We diligently work towards enhancing our own policies that encourage diversity and equality, and believe that we have a role to play in supporting important efforts to expand these values across the country and around the world. Raising our voice in the Bostic case is an important part of that role. When Bostic or a similar case reaches the Supreme Court, we will be there.
Daniel Mandil is Senior Vice President and Corporate Deputy General Counsel at Viacom.