Edith Windsor and Thea Spyer were legally married in Canada in The couple returned to New York, a state which recognized the marriage. Thea died in , leaving her estate to her wife, Windsor. Windsor claimed the federal tax exemption surviving spouses receive, but was denied any exemption under a section of the Defense of Marriage Act DOMA. After paying the federal tax, Windsor brought suit challenging the constitutionality of the restriction in federal court. The district court held the provision was unconstitutional entitling Windsor to a tax refund.
The Fifth Amendment Due Process Clause
Interpretation: The Fifth Amendment Due Process Clause | The National Constitution Center
What limitations does the Constitution place on ability of states to treat people differently because of their sexual orientation? The Court first considered the matter in the case of Bowers v Hardwick , a challenge to a Georgia law authorizing criminal penalties for persons found guilty of sodomy. Although the Georgia law applied both to heterosexual and homosexual sodomy, the Supreme Court chose to consider only the constitutionality of applying the law to homosexual sodomy. Michael Hardwick, who sought to enjoin enforcement of the Georgia law, had been charged with sodomy after a police officer discovered him in bed with another man. Charges were later dropped. In Bowers , the Court ruled 5 to 4 that the Due Process Clause "right of privacy" recognized in cases such Griswold and Roe does not prevent the criminalization of homosexual conduct between consenting adults.
United States v. Windsor
In Zablocki v Redhail , the Court struck down a Wisconsin law that required persons under obligations to pay support for the children of previous relationships to obtain permission of a court to marry. The statute required such individuals to prove that they were in compliance with support orders and that marriage would not threaten the financial security of their previous offspring. The Court reasoned that marriage was "a fundamental right" triggering "rigorous scutiny" of Wisconsin's justifications under the Equal Protection Clause.
The standard public debate over the Fourteenth Amendment goes something like this. Indeed, it is difficult for someone sympathetic to the result in the gay marriage case Obergefell v. The majority of the Supreme Court also seemed to believe that it was up to them to decide over time how those unenumerated, fundamental rights ought to evolve.