In a much-anticipated decision, the New Jersey Supreme Court has ruled that the New Jersey law governing marriage impermissibly denies same-sex couples the right to obtain the legal privileges afforded to married couples. The case, Mark Lewis, et al. v. Gwendolyn L. Harris, et al., decided on October 25, 2006, likely will have ramifications for New Jersey employers, although not to the extent that some may anticipate.
The case involved seven same-sex couples who were refused marriage licenses in New Jersey.  In its decision, the Court noted that in the past, same-sex couples in New Jersey have had to contend with economic disadvantages that married opposite-sex couples do not have to contend with, such as “paying excessive health insurance premiums because employers did not have to provide coverage to domestic partners,” not having a right to care for one’s partner under the New Jersey Family Leave Act, being denied survivor benefits under New Jersey’s Worker’s Compensation Act, and being denied back wages payable to the spouse of a deceased employee pursuant to state law. 
Finding denials of certain statutory rights to individuals in committed same-sex relationships to be a violation of the Equal Protection Clause of the New Jersey Constitution, the Court held that “[o]ur decision today significantly advances the civil rights of gays and lesbians. We have decided that our State Constitution guarantees that every statutory right and benefit conferred to heterosexual couples through civil marriage must be made available to committed same-sex couples.”  The Court then directed the New Jersey Legislature to “either amend the marriage statutes to include same-sex couples or enact a parallel statutory structure by another name [within 180 days], in which same-sex couples would not only enjoy the rights and benefits, but also bear the burdens of civil marriage.”
Once this new legislation is enacted, New Jersey employers must be aware that:

  • certain company policies referencing “spouses” (such as family leave policies and bereavement policies) would encompass such same-sex couples,
  • members of such same-sex couples would be entitled to survivor benefits under the Worker’s Compensation Act, and
  • members of same-sex couples would be eligible for back wages for a deceased spouse.

However, employers should note that this decision is not as far-reaching as it might otherwise seem, as many employee benefits are covered by federal law (ERISA), rather than state law.  Subject to some exceptions, ERISA preempts state laws purporting to mandate the terms on which private-sector employers provide benefit plan coverage.  Thus, the non-employee partner in a same-sex couple may not be entitled to participate in certain ERISA-governed plans (such as self-insured medical and dental plans), or to have an enforceable right to be named as a death beneficiary of an employee’s 401(k) plan account. 
Additional Information

Should you have any additional questions about this ruling or its ramifications, contact the Ogletree Deakins attorney with whom you normally work or the Client Services Department at 866-287-2576 or via email at

Note: This article was published in the October 27, 2006 issue of the New Jersey eAuthority.

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