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Under that standard, it could no longer defend the constitutionality of DOMA Section 3.
On April 18, 2011, Paul Clement, representing the Bipartisan Legal Advisory Group of the House of Representatives (BLAG), filed a motion asking to be allowed to intervene in the suit "for the limited purpose of defending the constitutionality of Section III" of DOMA.
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.
Later in 2008, New York recognized their marriage following a court decision.
On February 23, 2011, Attorney General Eric Holder released a statement regarding two lawsuits challenging DOMA Section 3, Windsor and Pedersen v. He explained that the Department of Justice (DOJ) had previously defended Section 3 of DOMA in several other lawsuits in jurisdictions where precedents required the court to use the rational basis standard for reviewing laws concerning sexual orientation.
Since Windsor was filed in the jurisdiction of the Second Circuit Court of Appeals, which had no such precedent, the DOJ had identified the proper standard of review in such cases as the more demanding "heightened scrutiny".
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.
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This places same-sex couples in an unstable position of being in a second-tier marriage.