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Apple, Facebook, Google: Same-sex marriage 'a business imperative'

HP's Whitman and top GOPpers also prod Supremes on marriage equality

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Updated Apple, Facebook, Intel, Google, Oracle, Cisco, Verizon, eBay, and Qualcomm are among at least 60 top US companies that will file a brief with the US Supreme Court in support of the plaintiffs in a case that seeks to invalidate as unconstitutional laws banning same-sex marriages.

"Recognizing the rights of same-sex couples to marry is more than a constitutional issue. It is a business imperative," argues a draft of the amicus brief obtained by Fortune.

The case, Hollingsworth v. Perry, was filed in opposition to California's Proposition 8, a state constitutional amendment that passed in 2008 but was overturned by the US District Court for the Northern District of California, in a decision that was upheld by the Ninth Circuit Court of Appeals. The case has since wended its way up to the US Supreme Court.

The companies petitioning the Supremes base their argument on competitive needs. "By singling out a group for less favorable treatment," the draft continues, "Proposition 8 impedes businesses from achieving the market's ideal of efficient operations – particularly in recruiting, hiring, and retaining talented people who are in the best position to operate at their highest capacity."

According to the draft, discrimination against same-sex marriages puts US companies in states with anti–same-sex marriage laws in a non-competitive position when competing for the best and the brightest "in places where all couples, regardless of whether they are of the same sex, are afforded equal access to marriage."

The brief also notes that such discriminatory laws are not merely anti-business in that they harm recruiting. It also notes that "increased wedding celebrations can mean additional revenue for many businesses," up to and including "businesses that benefit from increased tourism from guests who travel to the wedding."

But business needs are not the only reason for the companies' objections; there are principles involved, as well. Such laws, the draft argues, "send an unmistakeable signal that same-sex couples are in some way inferior to opposite-sex couples, a proposition that is anathema to amici's commitment to equality and fair treatment to all."

The opposition by Apple and Google to such laws is no surprise. Apple opposed Proposition 8 back in 2008, as did Google. What is perhaps more surprising was the revelation on Tuesday that at least 75 prominent Republicans – including HP CEO Meg Whitman – also filed an amicus brief in support of overturning laws banning same-sex marriage.

Whitman, Californians and others might remember, supported the implementation of Proposition 8 when she ran for governor of that state in 2010 – but she has now changed her mind. In a Thursday post on LinkedIn, Whitman explained her change of heart.

In that post, she called marriage "the single greatest contributor to the well-being of adults and children because it promotes eternal principles like commitment, fidelity and stability." She now believes that "It makes no difference whether the marriage is between a man and woman or a woman and woman. Marriage makes society better."

Whitman also recalled a quote by UK prime minister David Cameron, whose political views are likely closer to her own than they are to, say, President Obama. "Conservatives believe in the ties that bind us; that society is stronger when we make vows to each other and support each other," Cameron said at a 2011 Tory conference. "So I don't support gay marriage despite being a conservative. I support gay marriage because I am a conservative."

Speaking of Obama, the two amicus briefs now put the ball firmly in his court, as his administration has yet to formally weigh in on Hollingsworth v. Perry. Time is running out for Obama to make his thoughts known – oral aruments in the case are set for March 26.

It's your move, Mr. President. Which side are you on? That of some of the most powerful of your country's companies and a passel of prominent Republicans, or those filed by the Family Research Council and the Foundation for Moral Law?

Over four dozen amicus briefs have been filed so far, and it's not even March yet. Should Obama finally file his, odds are good that it will be treated with more respect than the one filed by the Westboro Baptist Church, of "God Hates Fags" fame. ®

Update

On Friday morning, Obama-administration officials said that the Justice Department would file an amicus brief later in the day that would express the administration's support for declaring Proposition 8 unconstitutional.

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