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On April 18, 2011, Paul Clement, representing the Bipartisan Legal Advisory Group (BLAG), intervened to defend the law. Jones ruled that Section 3 of DOMA was unconstitutional under the due process guarantees of the Fifth Amendment affirmed the district court's judgment on October 18, 2012. After Spyer's death in 2009, Windsor was required to pay 3,053 in federal estate taxes on her inheritance of her wife's estate.

Had federal law recognized the validity of their marriage, Windsor would have qualified for an unlimited spousal deduction and paid no federal estate taxes.

Section 3 of the Defense of Marriage Act, which federally defined marriage as a union between one man and one woman as husband and wife, is unconstitutional under the Fifth Amendment Due Process Clause's guarantee of equal protection.

The federal government must recognize same-sex marriages that have been approved by the states. in which the United States Supreme Court held that restricting U. federal interpretation of "marriage" and "spouse" to apply only to opposite-sex unions, by Section 3 of the Defense of Marriage Act (DOMA), is unconstitutional under the Due Process Clause of the Fifth Amendment.

Meanwhile, Windsor's legal counsel filed a petition of certiorari before judgment with the Supreme Court on July 16, 2012, asking for the case to be considered without waiting for the Second Circuit's review, citing the plaintiff's age and health.

The DOJ replied to BLAG's motion to dismiss, asserting: (1) its standing as an "aggrieved party", because the District Court's stay prevents the DOJ from taking steps to cease enforcement of Section 3 of DOMA; and (2) that its participation ensures consideration of the constitutional issue if the Second Circuit or the Supreme Court determines that BLAG lacks standing.

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New York Attorney General Eric Schneiderman filed a brief supporting Windsor's claim on July 26, 2011, arguing that DOMA Section 3 could not survive the scrutiny used for classifications based on sex and constitutes "an intrusion on the power of the state to define marriage." On June 6, 2012, Judge Barbara S.Jones ruled that a rational basis review of Section 3 of DOMA showed it to be unconstitutional, as it violated plaintiff's rights under the equal protection guarantees of the Fifth Amendment, and ordered that Windsor receive the tax refund due to her.Where BLAG had argued that the Spyer-Windsor marriage was not recognized by New York law at the time of Spyer's death – a prerequisite for Windsor's claim against the IRS – Jones cited the "informal opinion letters" of the state's governor, attorney general, and comptroller to the contrary along with several opinions in New York appellate courts.Spyer died at the age of 77 in 2009, leaving her entire estate to Windsor.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.

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