U.S. Supreme Court Hears DOMA Case—Now What?

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Last week, the U.S. Supreme Court heard oral arguments in United States v. Windsor, 12-307, a case that raises the question of whether the Defense of Marriage Act (DOMA) is constitutional. Among the various groups that are closely watching this case is the employee benefits community. In this post, we will revisit how DOMA affects employee benefit plans and how a decision by the Court to strike down the law could result in significant changes in how such benefits are administered.


DOMA essentially defines marriage under federal law as a union between a man and a woman as husband and wife. In addition, DOMA states that a “spouse” may only include a person of the opposite sex. As such, for federal law purposes, there is no recognition of same-sex spouses, even if recognized under state law. Furthermore, DOMA provides that no state must recognize a same-sex marriage that occurs and is legally recognized in another state. The Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that specifically regulates employee benefit plans. As such, ERISA is subject to DOMA. As a result, for purposes of how federal law impacts employee benefit plans, only a spouse of the opposite sex is recognized.

Faced with ERISA and DOMA, the question many employers ask is how do state law same-sex protections impact employee benefit plans?  Since ERISA generally preempts any state law that regulates employee benefits, any state law that would protect or regulate how employee benefits are provided to same-sex spouses would usually be preempted by ERISA. However, the analysis does not end there. State laws that regulate insurance are “saved” from ERISA preemption. Therefore, state laws that deal with same-sex spouse protections that involve insurance are not preempted by ERISA and thus may be addressed at the state level. Understanding this distinction is important for employers to understand when they sponsor employee benefit plans. As a result of ERISA preemption and the “Savings” clause, while retirement plans and self-funded welfare benefit plans will not be subject to state laws related to same-sex marriage and relationships, fully-insured welfare plans may be subject to state laws.

Additional Employee Benefit Plan Considerations

As noted above, DOMA affects all federal law. In addition to ERISA, there are other federal laws that impact employee benefit plans. The Internal Revenue Code (the Code) contains a number of provisions that regulate the taxation of employee benefits. For example, medical benefits provided to a same-sex spouse are taxable (unlike those of an opposite-sex spouse, which may be tax free if the Code requirements are satisfied). Furthermore, medical benefits for same-sex spouses may not be paid for on a pre-tax basis through a cafeteria plan. In the pension context, certain surviving spouse benefits and rights are not recognized for same-sex spouses.

Another example of the impact of DOMA on federal benefits law is the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). COBRA allows certain individuals to continue coverage under an employer sponsored health plan due to certain events. Among the individuals who may have COBRA rights are spouses. Under DOMA, same-sex spouses generally cannot exercise rights under COBRA.

U.S. v. Windsor – What’s Next?

The terms “spouse” and “marriage” together appear thousands of times in federal statute and regulations, but are generally left undefined. DOMA established a single federal definition as to what these terms meant. If the Supreme Court upholds DOMA, the limits described above shall stay in place. A ruling against the constitutionality of DOMA could have significant impact on the benefits and taxation rules governing employees with same-sex spouses. In light of the upcoming decision (expected this summer), employee benefit plan professionals should consider the following:

  • Although DOMA specifically defines what a “marriage” and “spouse” mean, employers have the flexibility to decide who is eligible for benefits under their plans. Some employers may decide to provide benefits under the DOMA concepts. Others may choose to offer benefits to same-sex spouses, domestic partners, and/or members of a civil union. A number of employers already have plans that extend benefits to these individuals.
  • In the event that benefits are provided to those other than opposite-sex spouses, employers must understand the tax and other federal law compliance implications on such benefits.
  • Employers must consider and understand the difference between fully-insured and self-insured plans as well as how ERISA and state law impact such plans.

Ultimately, employers must keep their eyes on the Supreme Court’s decision as it could have a significant impact on the way such benefits are provided to employees and their families.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.