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Justices signal they might strike down federal marriage law

 Hearing a challenge to the Defense of Marriage Act, which allows federal benefits to go only to heterosexual married couples, the Supreme Court appeared skeptical of the statute and indicated that it might strike down a section of the 1996 law.

At issue in Wednesday’s oral argument was the Defense of Marriage Act, known as DOMA, passed by overwhelming margins in both houses of Congress and signed by President Bill Clinton.

Listen: Audio of the oral arguments

A section of the law, in effect, bars federal agencies from recognizing same-sex marriages, even in the states where they are legal.

After the oral argument, NBC News Justice Correspondent Pete Williams reported that there seemed to be the five votes on the court that would be needed to invalidate the law.

Justice Anthony Kennedy – viewed by some court observers as the swing vote in the case – indicated that he had problems with law, telling attorney Paul Clement, who was representing House members supporting DOMA, that since federal regulations which affect married couples are “intertwined with the citizens' day-to-day life, you are at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody.”

Kennedy also complained that the statute applies not only to the majority of states that don’t allow same-sex marriages but also to the nine states where voters have chosen to make them legal.

The issue before the high court Wednesday was the application of the federal estate tax to a lesbian couple who had been married in Canada and lived in New York.

As executor of Thea Spyer’s estate, Edith Windsor paid more than $360,000 in federal estate taxes. Windsor seeks a refund on the ground that she is Spyer’s surviving spouse. Under federal law, property that passes to a surviving spouse is generally free from estate taxes.

The liberal justices attacked DOMA Wednesday on the grounds that it diminished marriages between same-sex couples in the states that have chosen to legalize them.

Justice Ruth Ginsburg told Clement that for the federal government to say “no joint (tax) return, no marital deduction, no Social Security benefits; your spouse is very sick but you can't get leave ... one might well ask, what kind of marriage is this?”

She said federal regulations which apply to married couples are “pervasive” and the upholding DOMA would mean in effect there would be “two kinds of marriage; the full marriage, and then this sort of skim-milk marriage.”

Justice Elena Kagan also voiced criticism of DOMA, telling Clement that Congress had targeted gay people, “a group that is not everybody's favorite group in the world.”

She asked, “Do we really think that Congress was doing this for uniformity reasons, or do we think that Congress's judgment was infected by dislike, by fear, by animus, and so forth?”

Related: Supreme Court hints that it won't issue sweeping ruling on same-sex marriage

But Justice Sonia Sotomayor raised the question of whether if the court finds section 3 of DOMA unconstitutional, must the laws in most states that limit marriage to opposite-sex couples also be found unconstitutional?

Solicitor General Donald Verrilli replied, “We think it's an open question with respect to state recognition of marriage,” but that “it would be difficult” for states to limit marriage only to opposite-sex couples.

Two years ago, the Justice Department stopped defending DOMA in court after Attorney General Eric Holder notified Congress that he and President Barack Obama had concluded that "classifications based on sexual orientation" were inconsistent with the Constitution's guarantee of equal protection under law.

This drew fire from some of the conservative justices in Wednesday’s oral argument.

Deputy Solicitor General Sri Srinivasan told the justices that Obama “made an accountable legal determination that this act of Congress is unconstitutional,” prompting Kennedy to ask “then why does he enforce the statute?”

Srinivasan said enforcement is not “an all-or-nothing proposition.” That answer didn’t satisfy Chief Justice John Roberts who said, “What is the test for when you think your obligation to take care that the laws be faithfully executed means you'll follow your view about whether it's constitutional or not or you won't follow your view?”

“I'd hesitate to give you a black-and-white algorithm,” Srinivasan replied.

Roberts criticized the Obama administration’s contention that gays and lesbians are a politically powerless group and that therefore they deserve special protection from the court – by applying “heightened scrutiny” to DOMA.

Roberts told Roberta Kaplan, the lawyer representing Windsor, that  the changes in marriage laws in nine states and enactment of domestic partnerships in other states "has a lot to do with the political force and effectiveness of people representing, supporting your side of the case."

When Kaplan disagreed, Roberts asked, “You don't doubt that the lobby supporting the enactment of same sex-marriage laws in different states is politically powerful, do you?”

He also noted that “political figures are falling over themselves to endorse your side of the case.”

Court observers caution that one should not read too much into the questions the justices ask during oral argument since they don’t necessarily reflect how any particular justice would ultimately vote in the case.

Williams said that before the justices even reach the question of the legal merits, they must first decide whether the Obama administration and the House of Representatives have standing to be involved in the case. It remains unclear how a majority of justices will decide that legal standing question.

The Obama administration – even though it was the nominal defendant in the case – urged the federal appeals court in New York to rule in favor of Windsor. So in essence, the Obama administration won in the appeals court and the high court normally doesn’t allow the victorious side in a case to appeal.

The oral argument came a day after the court signaled that it is unlikely to issue a sweeping ruling declaring that same-sex couples have a constitutional right to marry.

Passed by the House in 1996 by a vote of 342 to 67, the Defense of Marriage Act includes one section that says for purposes of federal law marriage is defined as “only a legal union between one man and one woman as husband and wife.”

Another part of the law says that states which do not permit same-sex marriages can’t be forced to recognize a same-sex marriage from another state.

Clinton signed the bill into law and in the 1996 presidential campaign, and his campaign ran radio ads touting that fact. But Clinton recently wrote in the Washington Post, “I have come to believe that DOMA is contrary to those principles and, in fact, incompatible with our Constitution.”

NBC News Justice Correspondent Pete Williams contributed to this story.