President Barack Obama should instruct all federal agencies to adopt a policy that recognizes same-sex marriages based on the state where people were married rather than where they currently reside, according to Thomas DiNapoli, the New York State comptroller.
In a letter to the president, Mr. DiNapoli advocated a so-called “place of celebration” standard, in response to the U.S. Supreme Court ruling in late June overturning the federal Defense of Marriage Act's provision that a spouse is defined as a 'person of the opposite sex who is a husband or a wife.”
“Your directive to make the 'place of celebration' rule the one and only federal rule, to the broadest extent possible, will provide certainty and uniformity, fostering a more fair and profitable corporate workplace and a stronger, more sustainable economy,” Mr. DiNapoli wrote in a July 18 letter that the comptroller made public on July 19. Mr. DiNapoli is the sole trustee of the $160.4 billion New York State Common Retirement Fund.
“I have become increasingly concerned that companies that refuse to protect their employees from discrimination based on their sexual orientation or gender identity, and those that exclude same-sex spouses from employee benefit plans that are available to opposite-sex spouses, are hurting their financial bottom lines,” Mr. DiNapoli wrote.
“These discriminatory policies stand in the way of recruitment and retention of the best and the brightest employees, as would discrimination against women or racial and ethnic minorities.”
In an interview July 22, Eric Sumberg, a spokesman for Mr. DiNapoli, noted the U.S. Office of Personnel Management and the Department of Defense already have taken steps to use the “place of celebration” standard. “There is a need for uniformity,” he said.
Mr. Sumberg pointed out that the New York State Common Retirement Fund has secured agreements from 31 corporations since 2010 to implement new sexual orientation or gender identity non-discriminations policies. “We filed (proxy) resolutions but we withdrew them when we reached agreements,” Mr. Sumberg said.
If Mr. Obama doesn't take further action, “the comptroller will continue to introduce board resolutions, and take other measures to highlight unfair discrimination, and the impact such discrimination may have on corporate profits and on the long-term sustainability of the companies in which we invest,” Mr. Sumberg added.
Since 2010, there have been nine shareholder votes at companies for which the New York State Common Retirement Fund has filed petitions for non-discrimination policies, including four at Exxon Mobil Corp., Mr. Sumberg said. None has achieved a majority vote.
“I am aware that some publicly traded corporations exclude same-sex spouses from their employee benefit plans because, they assert, they are allowed to define 'spouse' and 'marriage' “within the meaning of the federal laws of the United States,” Mr. DiNapoli's letter said. “The federal law they have cited is Section 205 of the Employee Retirement Income Security Act … coupled with the Defense of Marriage Act.”
Given the Supreme Court's ruling in United States vs. Windsor, the Defense of Marriage Act's definition of a spouse “has now become patently indefensible,” Mr. DiNapoli wrote. “Nothing in ERISA mandated that DOMA should control or limit the definition of 'spouse' by a private company, and the DOMA justification for such blatant discrimination is now gone.”
