On December 7, the Supreme Court granted certiorari in the case, now United States v. In addition to the question presented by the DOJ – "Whether Section 3 of DOMA violates the Fifth Amendment's guarantee of equal protection" for same sex partners – the court also asked the parties to brief and argue two other questions: whether the government's agreement with the Second Circuit's decision deprived the court of a "real dispute" and therefore of jurisdiction to hear the case, and whether BLAG had standing in its own right, i.e., the legal right to independently ask for the appeal to be heard in the event that the government was not a valid petitioner. The particular case at hand concerns the estate tax, but DOMA is more than a simple determination of what should or should not be allowed as an estate tax refund.
Article III of the Constitution (the "Case or Controversy clause") forbids parties that do not themselves have a real and personal ("particularized") complaint from filing a case or appeal in a federal court. Among the over 1,000 statutes and numerous federal regulations that DOMA controls are laws pertaining to Social Security, housing, taxes, criminal sanctions, copyright, and veterans' benefits.
The majority opinion stated, "It is easy to conclude that homosexuals have suffered a history of discrimination." Thus they were part of a quasi-suspect class that deserves any law restricting its rights to be subjected to intermediate scrutiny.
Windsor sought to claim the federal estate tax exemption for surviving spouses. § 7), which provided that the term "spouse" only applied to marriages between a man and woman. Supreme Court issued a 5–4 decision declaring Section 3 of DOMA to be unconstitutional "as a deprivation of the liberty of the person protected by the Fifth Amendment." On the same day, the court also issued a separate 5–4 decision in Hollingsworth v.In May 2008, New York Governor David Paterson had ordered state agencies to recognize same-sex marriages performed in other jurisdictions.Some lower-level state courts had made similar rulings, but whether the state's highest court would give such a ruling the force of law, as Windsor's claim for a refund required, remained uncertain Windsor at first asked several gay rights advocacy groups to represent her, but none would take the case.In the majority opinion, Justice Anthony Kennedy wrote: "The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity." Edith Windsor and Thea Spyer, a same-sex couple residing in New York, were lawfully married in Toronto, Ontario, Canada, in 2007.Later in 2008, New York recognized their marriage following a court decision.