Box Turtle Bulletin

300 Employers Urge SCOTUS to Declare DOMA Unconstitutional

More than 200 businesses, a couple score of law firms, sixteen civic, professional and trade groups, seventeen cities and counties and the United States Conference of mayors — the short list of signatories runs six pages alone — have signed on to an Amicus brief urging the U.S. Supreme Court to declare Section 3 of the Defense of Marriage Act unconstitutional. The brief, filed in support of Edith Windsor in Windsor v. U.S. (which is now available online), argues that DOMA “impairs employer/employee relations and other business interests”:

Federal law provides to the working family many benefits and protections relating to health care, pro-tected leave, and retirement. These protections provide security and support to an employee grappling with sickness, disability, childcare, family crisis, or retirement, allowing the employee to devote more focus and attention to his work.

DOMA thwarts these employee expectations, to the direct detriment of some married employees of amici , and, by extension, of amici ourselves. As set forth below, DOMA forces amici to consider the gender of the spouses of our lawfully married employees when determining the scope and manner of benefits that may be extended to those spouses (and the chil-dren of those spouses). DOMA enforces discriminatory tax treatment of spousal retirement and health care benefits. In many other benefit-related matters,amici may incur the cost and administrative burden of “workarounds” (employer-created benefit structures attempting to compensate for the discriminatory effects of DOMA), or leave the married workforce in separate castes.

Having states recognizing same-sex marriages while the Federal government willfully ignores those legal marriage produces a costly burden to employers:

These dual regimes have spawned an industry of costly compliance specialists. Some amici have had to pay vendors to reprogram benefits and payroll systems, to add coding to reconcile different tax and benefit treatments, to reconfigure at every benefit and coverage level, and to revisit all of these modifications with every change in tax or ERISA laws for potential DOMA impact. Attorneys and ERISA advisors must be consulted. Human resources, benefits,and payroll personnel must be trained and retrained as tax or ERISA laws change. Plan documents, enrollment forms, and administrative procedures must be scoured for the word “spouse,” and amendments and disclosures drafted to try to explain the numerous implications and consequences of a given benefits decision on the personal tax situation of an employee with a same-sex spouse. Enrollment systems must be reprogrammed to account for different spousal circumstances, and linked to provider records to ensure the providers extend appropriate coverage. Benefits and human resources departments, facing questions from employees with same-sex spouses regarding workplace benefit selections and coverage, must be adequately trained and prepared to explain the disparate treatment to employees who may later realize (perhaps too late) that their benefits choices and decisions carried unanticipated and significant financial implications. The complexity and uncertainty saps critical time, focus, and energy from the human resources and benefits administration function.

The second part of the brief goes the heart of the matter, that DOMA forces employers to “become the face of its mandate that two separate castes of married persons be identified and separately treated.”:

In the modern workplace, the employer becomes the face of DOMA’s discriminatory treatment, and is placed in the role of intrusive inquisitor, imputer of taxable income, and withholder of benefits. The employer is thus forced by DOMA to participate in the injury of its own workforce morale. Yale University’s error in administering DOMA, and its implementation of unexpected tax withholding against employees married to same-sex spouses in 2011, cast the university as the antagonist to its own employees. Many amici, as employers, provide certain workarounds that attempt to address some of the disparate treatment of same-sex couples that DOMA requires. Many amici that are cities and counties have gone even farther, making substantial efforts to prevent discrimination against same-sex couples, up to and including passing anti-discrimination ordinances and amending city charters to outlaw discrimination against same-sex couples. Administering and implementing DOMA subverts efforts to eliminate obstacles to full legal recognition for employees who have lawfully entered into committed relationships with persons of the same sex.

…For many employers, DOMA does violence to the morale of the institution itself. Like other persons, legal and natural, amici are motivated by core principles. As of December 2012, 88% of Fortune 500 companies provided nondiscrimination protection for their gay and lesbian employees. …These principles spring from hard experience. Our organizations are engaged in national and international competition — for talent, customers, and business. That competition demands teamwork, and teamwork thrives when the organization minimizes distracting differences, and focuses on a common mission. DOMA’s core mandate — that we single out some of our married colleagues and treat them as a lesser class — upsets this imperative.

Our principles are not platitudes. Our mission statements are not simply plaques in the lobby. Statements of principle are our agenda for success: born of experience, tested in laboratory, factory, and office, attuned to competition. Our principles reflect, in the truest sense, our business judgment. By force of law, DOMA rescinds that judgment and directs that we renounce these principles or, worse yet, betray them.

Earlier today, it was announced that more than sixty businesses have submitted a brief to the U.S. Supreme Court urging it to declare California’s Prop 8 unconstitutional. While I haven’t been able to find the full text of that brief, it appears that at least some of the arguments made there are repeated here. That brief argued that Prop 8 “leave(s) companies in the untenable position of being compelled implicitly to endorse the second-class status to which their gay and lesbian employees, clients, customers, and business associates are relegated. …Until the law no longer relegates same-sex couples to second-class status as inferior “domestic partnerships,” our adherence to the law compels us to abide by a distinction that stigmatizes and dehumanizes gay men and lesbians.”

Signatories to the Windsor brief includes many of America’s top companies and brands, including Aetna, Alaska Airlines, Amazon.com, AIG, Apple, A|X Armani Exchange, BNY Mellon, Bankers Trust, BlackRock, Caesars Entertainment, CBS, Cisco, Citigroup, The Corcoran Group, Coupons.com, Deutche Bank, eBay, Earnst & Young, Facebook, Goldman Sachs, Google, Horizon Air, Intel, Intuit, JetBlue, the Jim Henson Company, Johnson & Johnson, Levi Strauss, Liberty Mutual, Marriot International, Mars, McGraw-Hill, Microsoft, Moody’s, Morgan Stanley, New York Life, Nike, Oracle, Orbitz, Pfizer, Qualcomm, REI, salesforce.com, Starbucks, Thomson Reuters, Twitter, Viacom, Walt Disney, and Xerox. That is just a short list of the big names. There are about 300 more. I look forward to the American Family Association’s next boycott announcement.

Amazon’s amazing support

Amazon’s founder, Jeff Bezos, and his wife, MacKenzie, have joined the list of prominent Washington businesses and CEO’s that have come out in support of marriage equality in that state. And all because former employee Jennifer Cast – one of the company’s first – asked.

On Sunday cast emailed Bezos asking for a contribution to the campaign in support of Referendum 74. “We need help from straight people. To be very frank, we need help from wealthy straight people who care about us and who want to help us win.” Bezos’ reply:

Jen, this is right for so many reasons. We’re in for $2.5 million. Jeff & MacKenzie.

I’m sorry. I should have given you a tissue warning.

Oddly enough, NOM’s blog site seems not to have gotten the news. They’re still talking about chicken.

Now Amazon

Now that anti-gays cannot go to Macy’s or even JC Penny’s to buy a shirt, can’t drink coffee or dine out in Seattle, and can’t use Windows write their screeds, their options for social survival were slim. But they still could use some smartphones to buy things online. Now even that is tougher.

“Amazon is joining other Pacific Northwest companies, including Microsoft, Starbucks and Nike, in support of Washington state’s marriage equality bills,” Amazon said in a statement released by spokeswoman Mary Osako. “The spirit of these bills is consistent with our longstanding employment practices.”

I think that if those anti-gays really believe in the sanctity of special privileges for themselves, then they have a moral obligation to personally boycott every single company that supports equality. Forever. And no weaning off, or making threats; live up to your convictions starting right now. God is watching.

If it helps, I think Chick-fil-a if you stock up for the week.

Amazon’s Response Raises Security Questions

Amazon’s de-ranking of LGBT-themed books generated a host of competing theories of what happened. Amazon’s first response to inquiries, which labeled LGBT books as “‘adult’ material,” suggested that the de-ranking was intentional. That response was followed by another one, blaming the whole mishap on a “glitch,” a dubious term that continues to be inserted inside of quotation marks everywhere.

Meanwhile theories have flooded the ‘net, with some suggesting that it was the result of a coordinated outside attack by shadowy anti-gay groups “flagging” LGBT-themed books for objectionable content and watching Amazon’s automated systems taking over from there. There was even one hacker claiming credit for the chaos.

But now more recent statements from Amazon officials and Amazon insiders sheds more light on the “glitch.” Here is their official respons

This is an embarrassing and ham-fisted cataloging error for a company that prides itself on offering complete selection.

It has been misreported that the issue was limited to Gay & Lesbian themed titles – in fact, it impacted 57,310 books in a number of broad categories such as Health, Mind & Body, Reproductive & Sexual Medicine, and Erotica. This problem impacted books not just in the United States but globally. It affected not just sales rank but also had the effect of removing the books from Amazon’s main product search.

Many books have now been fixed and we’re in the process of fixing the remainder as quickly as possible, and we intend to implement new measures to make this kind of accident less likely to occur in the future.

The Seattle Stranger blog has more inside information, indicating that it was a badly written and tested piece of code that was inserted into Amazon’s software. Apparently, the French software developer mixed up “adult” with “erotic” and “sexuality,” and that ended up garbling the whole thing. As a software developer myself, I can see how this sort of thing can happen when there is little oversight in testing candidate code changes.

But that is worrisome. Responsible and well-managed software outfits always make sure there are proper peer reviews and rigorous software testing before software is released for public use. A bug like this could have been easily detected during peer reviews, and should have been caught during software regression test. Neither of these two very fundamental steps, it appears, were taken. Or if they were performed — and I have a very hard time imagining a peer review letting this sort of error go undetected — they were performed poorly.

So if this explanation pans out, then Amazon conceivably has a much larger, more systematic problem on their hands. If their software can be screwed up this badly by one developer, and that screw-up can make it into released code without adequate testing, then what other problems are lurking undetected? Are our credit cards secure? What about our book purchases, or even the books that we look up online? In other words, what expectations do we have that Amazon can actually maintain their own meager privacy policy, such as it is?

And it’s not just Amazon customers who should be concerned. Amazon Associates, publishers, and used bookstores all trust Amazon with financial transactions. Bookstores, in addition, trust Amazon to properly list and promote their inventory as well. What assurances do they have that a similar “glitch” won’t adversely affect their businesses?

It would almost be better for Amazon, its customers, and associate businesses and individuals if this whole episode had been an anti-gay conspiracy.

Amazon Reclassifies LGBT Books as Adult; Sex Toys Are Not

Amazon has reclassified LGBT themed books as “Adult” books, which also removes them from Amazon’s all-important sales ranking. The LA Times blog notes the capriciousness of this act:

“American Psycho” is Bret Easton Ellis’ story of a sadistic murderer. “Unfriendly Fire” is a well-reviewed empirical analysis of military policy. But it’s “Unfriendly Fire” that does not have a sales rank — which means it would not show up in Amazon’s bestseller lists, even if it sold more copies than the Twilight series. In some cases, being de-ranked also means being removed from Amazon’s search results.

De-ranking can have a devastating affect on customers ability to find books.The Amazon Gay and Lesbian best seller’s list has been decimated, with only Kindle titles showing up right now. Apparently, Amazon’s Kindle offerings haven’t been affected yet.

Craig Seymour began blogging about this in February, but it is just now getting widespread notice. He has some more examples of Amazon’s arbitrariness in reclassifying LGBT themed books while leaving comparable hetero books alone:

Memoirs by gay porn stars Blue Blake (Out of the Blue: Confessions of an Unlikely Porn Star) and Bobby Blake (My Life in Porn: The Bobby Blake Story) didn’t have a sales ranking, but memoirs by straight porn stars Ron Jeremy (Ron Jeremy: The Hardest (Working) Man in Showbiz) and Jenna Jameson (How to Make Love Like a Porn Star: A Cautionary Tale) did. Clearly, there seemed to be a double-standard.

Mark Probst is a publisher with Amazon, and that gave him special access to Amazon to ask what’s up. This is the reply he got:

In consideration of our entire customer base, we exclude “adult” material from appearing in some searches and best seller lists. Since these lists are generated using sales ranks, adult materials must also be excluded from that feature.

Hence, if you have further questions, kindly write back to us.

Best regards,
Ashlyn D
Member Services
Amazon.com Advantage

But here’s the really crazy thing. This very adult material (NSFW) retains its sales ranking. As do these (NSFW), this (NSFW), and this clever thing (NSFW). In other words, sex toys aren’t “adult” according to Amazon, but a rational discussion of the policy implications of “Don’t Ask, Don’t Tell” is.

Among the books now considered “Adult” include the children’s book, Heather Has Two Mommies. All of Michelangelo Signorile’s books have been de-ranked as well, and none of them contain any eroticism whatsoever. Says Signorile, “In my case it is a clear suppression of political speech. It’s that simple.” Andrew Sullivan also notice that his books have been de-listed and he’s similarly puzzled:

“Virtually Normal” and “Love Undetectable” have been de-listed and stripped of customer sales rankings. Jackie Collins’ “Married Lovers” hasn’t. My books contain discussions of Aquinas and Freud and Foucault and Burke. I’m puzzled as to why those authors are more “adult” than Collins’ adulterous couplings.

Update: Publisher’s Weekly has another statement from Amazon. They’re calling it “a glitch”:

On Sunday evening, however, an Amazon spokesperson said that a glitch had occurred in its sales ranking feature that was in the process of being fixed. The spokesperson added that there was no new adult policy.