Self-funded health insurance plans governed by the Employee Retirement Income Security Act (ERISA) are subject to federal law. The U.S. Supreme Court has struck down as unconstitutional Section 3 of the federal Defense of Marriage Act (DOMA), which defined marriage as only between a man and a woman (United States v. Windsor, 133 S.Ct. 2675 (2013)). The ruling requires equal treatment under federal law of spouses in legally recognized same-sex and opposite-sex marriages. Therefore, employee benefits regulated by federal law such as ERISA and federal income tax law must provide equally for those in same-sex and opposite-sex marriages. There may be narrow exceptions under ERISA that permit self-funded plans to exclude coverage for employees’ same-sex spouses, but such exclusions may subject an employer to discrimination claims.
Fully insured health plans are subject to state laws. Employers offering employees state-regulated coverage in New Jersey are required to offer coverage to employees' same-sex spouses on the same terms offered to employees' opposite-sex spouses.
Likewise, health plans sponsored by state public sector employers are subject to state law and are required to cover same-sex spouses on the same basis as opposite-sex spouses.
Domestic partners. State law ...