Federal Questions and the Domestic-Relations Exception
abstract. The domestic-relations exception to federal jurisdiction prohibits federal courts from hearing cases involving family-law questions within the traditional authority of the states. Since the Supreme Court first articulated the exception in 1858, the scope of the doctrine has remained unclear; in particular, confusion persists over whether it applies only to diversity cases, or to federal questions as well. This Note argues that the domestic-relations exception does not, as a matter of positive law, apply to federal-question cases. Applying the exception to bar federal courts from jurisdiction over bona fide federal questions would violate Article III, which endows federal courts with jurisdiction over all federal-question cases in law or equity. Additionally, the federal-question jurisdiction statute is best read as reflecting a congressional intent that federal jurisdiction extend to domestic-relations matters that raise questions of federal law. Federal courts have the authority to resolve important and timely questions of federal law. The domestic-relations exception should not be misconstrued to stand in their way.
author.Yale Law School, J.D. expected 2016. I am grateful to Akhil Reed Amar, Robert Black, Philip C. Bobbitt, Nicholas Parrillo, Allison Anna Tait, and Alec Webley for their help, support, and feedback. I also thank Jane Ostrager, Hyungwoo Lee, Marissa Roy, Elizabeth Ingriselli, Charlie Bridge, Rebecca Lee, Michael Clemente, and the extraordinary editors of the Yale Law Journal for their invaluable suggestions and tireless efforts over the course of the production process. All errors are entirely my own. This Note is dedicated to Steven G. Calabresi, the epitome of a wise, warmhearted, and generous mentor, from whom I have learned so much and still have so much to learn.
Under the domestic-relations exception to federal
jurisdiction, federal courts lack the power to hear
certain cases involving family-law questions that fall within the traditional
authority of the states.1
The exception was first articulated in 1858: in Barber v. Barber, the Supreme Court “disclaim[ed] altogether any
jurisdiction in the courts of the United States upon the subject of divorce, or
for the allowance of alimony.”2 Thirty-two
years later, the Court expanded the exception to reach “[t]he whole subject of
the domestic relations of husband and wife, parent and child,” which, the Court
said, “belongs to the laws of the States and not to the laws of the United
States.”3
Despite its long pedigree, the exception’s scope remains unsettled in the
doctrine. In particular, confusion persists about whether the exception extends
to federal-question cases, or only to diversity cases. This Note argues that,
for both constitutional and statutory reasons, courts may not invoke the domestic-relations
exception in federal-question cases. Today, some courts apply the domestic-relations exception to
federal questions; others limit it to diversity cases.4
The Supreme Court’s most recent treatments of the exception’s scope do not
provide clear guidance. Ankenbrandt v.
Richards, decided in 1992, purported to limit the exception to requests for
“divorce, alimony, and child custody decrees.”5
But in Elk Grove Unified School District
v. Newdow,6
the Court “provid[ed] . . . powerful language supporting a domestic relations
exception for federal questions.”7 Newdow
implied that federal courts should hear cases raising “delicate issues of
domestic relations” only in “rare instances,” and only when “necessary to answer a substantial
federal question that transcends or exists apart
from the family law issue.”8 In many other
cases that would seem to implicate the exception, the Court has simply been
silent about its application.9 In recent years, as the constitutionality of same-sex
marriage wound its way to the Supreme Court, lower federal courts repeatedly
grappled with the question of whether the domestic-relations exception imposed
a barrier to their adjudication of the issue. Four federal district courts held
that the exception did not prevent them from deciding same-sex marriage
challenges on the merits,10 while three
judges on the Ninth Circuit reached the opposite conclusion, asserting that
“because . . . the definition and recognition of marriage . . . are committed
to the states, federal courts ought to refrain from intruding into this core
area of state sovereignty.”11 Amici urging
federal courts to not hear challenges to same-sex marriage bans repeatedly
invoked the exception as well.12
Seeking to stay a 2014 district court ruling requiring his state to recognize
same-sex marriages, the Attorney General of South Carolina filed an emergency
application with John Roberts, Chief Justice of the United States and the
Circuit Justice for the Fourth Circuit.13 The South Carolina Attorney General submitted
that the exception precluded the district court from hearing the case.14
The Supreme Court denied the motion,15
prompting Justices Scalia and Thomas to dissent.16 Ultimately, in Obergefell
v. Hodges,17
the Supreme Court held that the U.S. Constitution requires states to license
and recognize same-sex marriages. But the Court failed to address this
potential jurisdictional stumbling block—a puzzling omission, given the
attention the issue received from lower courts, amici, and commentators. The
fact that the Court reached a decision on the merits might inspire doubt that
the exception applies to federal questions, but Obergefell left the issue unsettled. To imagine otherwise would
impute undue authority to an unstated inference. Obergefell did not purport to overrule or limit Newdow, which remains good law, and the
decision is unlikely to end the uncertainty over whether the domestic-relations
exception applies to federal questions.18
Indeed, confusion about the exception’s scope will almost
certainly persist in the post-Obergefell
world. Federal courts will continue to encounter litigation at the intersection
of federal law and the family. Obergefell’s
enduring legitimacy itself requires consensus that the domestic-relations
exception does not deprive federal courts of jurisdiction to decide federal
questions affecting family relations. Courts that apply the exception to
federal questions will erode confidence in that decision. Later cases that
suggest that the disappointed litigants, dissenting judges, amici, and
commentators in the same-sex marriage cases were actually correct about the domestic-relations
exception—or even that there is genuine doubt that the objectors were
wrong—will undermine Obergefell’s
legitimacy, suggesting that the ruling was as lawless as its critics claimed.19 Academics have fared no better than jurists in reaching
consensus on the domestic-relations exception.20 Some have called for its abolition
altogether.21 Scholarly commentary on the
exception can be grouped into two main strands: (1) normative critiques that
focus on whether the exception is fair or desirable as a policy matter22 and (2) efforts to cast doubt on the
exception’s historicity23 and on other
legal justifications offered by its defenders.24
But existing attacks on the exception’s historicity are underdeveloped, buried
in a sea of normative arguments, and even these critics have not argued that
the Constitution precludes applying
the exception to federal questions. Recently, Steven G. Calabresi and Genna L.
Sinel undertook an examination of the exception’s historicity and concluded
both that the exception is historically sound,25
and that it would have been originally understood to apply to federal-question
cases as a constitutional26 and statutory
matter.27 This Note stakes out a different position, arguing that the domestic-relations
exception does not, as a matter of positive law, apply to federal-question cases.
First, the Note explains why applying the exception to bar federal courts from
jurisdiction over bona fide federal questions would violate Article III,28
which endows federal courts with jurisdiction over all federal-question cases in law or equity. As a constitutional
matter, federal jurisdiction extends to all domestic-relations cases raising
federal questions. Second, this Note argues that under the logic of Ankenbrandt, the federal question
jurisdiction statute29 is best read
as reflecting a congressional intent that federal jurisdiction extend to
domestic relations matters that raise questions of federal law. Even if
Congress had previously curtailed
statutory jurisdiction over federal domestic-relations questions, Congress has
subsequently restored this jurisdiction. This Note does not purport to provide a comprehensive
treatment of the domestic-relations exception; it advances no claim as to
whether the exception is valid with respect to diversity jurisdiction. This
Note addresses only federal-question jurisdiction, arguing that courts should
reject the domestic-relations exception in the federal-question context as a
matter of constitutional law and statutory interpretation. This Note proceeds in four Parts. Part I briefly discusses
the domestic-relations exception’s provenance and rationales, as well as the
current state of the doctrine. After recounting the exception’s doctrinal
origins and development, this Part documents confusion in the circuits over the
exception’s breadth. Part II explains the strongest arguments for applying the domestic-relations
exception in federal-question cases. First, there is an originalist argument
that federal courts possess only the jurisdiction exercised by the English
courts of law or equity, which lacked power to hear marital cases. Second,
there is a federalism-based argument that states have an important interest in
exclusive jurisdiction over domestic-relations matters, which fall within the
core of state authority. Finally, there is an argument that early Supreme Court
precedents confirm that the exception has been applied in federal-question cases
since its inception. Part III demonstrates why these arguments fail. Applying the
exception to federal questions would violate the text, history, and structural
logic of Article III. Article III mandates that whenever a state court
adjudicates a federal question, appeal must lie in the federal
courts—including, ultimately, the Supreme Court. Early precedents to the
contrary provide little reasoning for their holdings, and are thus entitled to
little weight. Moreover, under Ankenbrandt’s
own logic, the federal-question statute is best read not to embody a domestic-relations
exception to federal-question jurisdiction. Finally, federalism does not offer
sufficient reasons to apply the exception to federal questions, as values of
federalism and parity between state and federal courts are also served by
permitting both types of courts to adjudicate federal questions that involve
domestic relations. The Conclusion looks ahead to the future litigation that will
further heighten the need to recognize conclusively that the domestic-relations
exception does not deprive federal courts of jurisdiction to resolve federal
questions. This Note’s conclusions are not cabined to the issue of same-sex
marriage; they ring true across all federal questions involving domestic
issues. Federal courts have the authority to resolve important and timely
questions of federal law. The domestic-relations exception should not be
misconstrued to stand in their way. This Part describes the doctrinal development of the domestic-relations
exception. It reveals that the scope of the exception has been uncertain since
its inception. Similarly, no single theory of the exception’s provenance
emerges from the case law. Instead, the Supreme Court has offered unrelated,
sometimes conflicting justifications for applying the exception. Some
precedents seem to rest on a constitutional foundation, while others are
clearly statutory. This Note later argues that neither constitutional nor
statutory law provides a true foundation for the domestic-relations exception. The Supreme Court first articulated the domestic-relations
exception in 1858 in Barber v. Barber,
a diversity suit brought by a wife against her husband to enforce a state
court’s alimony award.30 The New York
Court of Chancery had issued a divorce decree requiring the husband to pay his
wife a yearly allowance of $360, but the husband left the state and refused to
comply with the order.31 His wife sued
him in federal court in Wisconsin to enforce the decree.32
The Supreme Court ruled that the district court had jurisdiction to hear the
case, but only because the plaintiff sought “to prevent that decree from being
defeated by fraud,” not to seek alimony support in the first place.33
The Court then stated its now-famous dictum: “We disclaim altogether any
jurisdiction in the courts of the United States upon the subject of divorce, or
for the allowance of alimony, either as an original proceeding in chancery or
as an incident to divorce . . . .”34
The Barber Court
thus asserted a proto-domestic-relations exception to federal court
jurisdiction that was limited to divorce and alimony. However, it did so only
in dictum in the context of a diversity, not federal-question, case. Moreover,
the Court did not supply any reasoning to support its pronouncement. Justice
Daniel’s dissenting opinion, however, offered a historical rationale for the domestic-relations
exception. The dissent claimed that U.S. courts sitting in equity could
exercise only the jurisdiction that was enjoyed by the English chancery courts,
which did not extend to suits for divorce or alimony.35
The majority and the dissent agreed that a domestic-relations exception
existed, but, unlike the majority, Justice Daniel would have applied it in the
case at hand.36
Many years later, the Court would endorse the dissent’s rationale, asserting
that the majority “did not disagree with [Justice Daniel’s] reason for
accepting the jurisdictional limitation,” but only with his view of its scope.37
Thirty-two years
later, the Court “significantly expanded Barber’s
domestic-relations exception.”38 In In re Burrus, 39
a father had obtained a child custody order, via a writ of habeas corpus, from
the U.S. district court; the child had been in her grandparents’ custody, and
the grandparents later violated the order by retaking custody of her.40
The district court imprisoned the grandfather for contempt of court.41
He sought relief from his imprisonment on the ground that the district court
lacked jurisdiction to grant the father’s habeas petition in the first place.42
The Supreme Court agreed.43 Now
addressing a federal-question case, the Court articulated a domestic-relations
exception with a potentially expansive scope. The Court stated that “[t]he
whole subject of the domestic relations of husband and wife, parent and child,
belongs to the laws of the States and not to the laws of the United States.”44
It further suggested that domestic-relations cases generally do not “justif[y]
the exercise of federal authority.”45
As in Barber, the Court gave no
reason for this rule,46 nor did it
indicate whether the rule rested on a constitutional, statutory, or prudential
basis. Three other cases decided shortly thereafter bore on the
source and scope of the domestic-relations exception. Perrine v. Slack,47 decided in
1896, was another habeas action. A mother sought a writ of habeas corpus to
obtain custody of her children from her deceased husband’s sister and the
sister’s husband.48 The Court
held that no federal jurisdiction existed because “the matter in dispute is of
such a nature as to be incapable of being reduced to any pecuniary standard of
value,”49
presumably meaning that the case could not satisfy the statutory
amount-in-controversy requirement to sustain federal jurisdiction.50
Simms v. Simms,
decided on appeal from Arizona’s territorial court in 1899, held that federal circuit
courts lacked jurisdiction to review divorce and alimony orders issued by the
territorial courts, relying on Barber’s
disclaimer of jurisdiction over suits involving divorce and alimony.51
However, Simms asserted that the Arizona
district court did have jurisdiction
over domestic suits.52 In the
federal territories, the Court reasoned, Congress “has full legislative power
over all subjects upon which the legislature of a State might legislate within
the State.”53
In exercising that power, the Court said, Congress could vest territorial courts
with jurisdiction over domestic-relations disputes.54 The Court reaffirmed that the domestic-relations exception
does not reach territorial courts in De
La Rama v. De La Rama, decided in 1906 on appeal from the Supreme Court of
the Philippine Islands.55 It gave two
justifications for the exception. First, it reasoned “that the husband and wife
cannot usually be citizens of different States, so long as the marriage
relation continues.”56 Second, as in
Perrine, it asserted “that a suit for
divorce in itself involves no pecuniary value.”57
The Court then explained, however, that the general rule does not apply in the
territories, where the federal government operates in the place of a state
government.58 Perrine, Simms, and De La Rama each offered rationales for the exception that differed
from Justice Daniel’s Barber dissent,
which had claimed that federal courts in equity could not hear cases that in
England fell within the exclusive “cognizance of the ecclesiastical court.”59
As Mark Poker observed, moreover, the justifications offered in these three
cases “appear to be only technical obstacles which can,” at least in theory,
“be satisfied in certain cases.”60 After all, a
case involving domestic relations might conceivably involve large sums of
money. Additionally, federal-question jurisdiction is no longer subject to an
amount-in-controversy requirement.61
Finally, if the domestic-relations exception is really rooted in the
amount-in-controversy requirement, what makes family-law disputes in particular
different from any other category of cases? Likewise, if the domestic-relations
exception is truly about an inability to establish diversity of citizenship,
what distinguishes family-law disputes in particular from other cases in which
diversity of citizenship is lacking? Besides, the notion that spouses cannot be
citizens of different states is rooted in the old doctrine that upon marriage,
a woman’s legal identity was subsumed into her husband’s.62
Today, we no longer treat marriage as extinguishing a woman’s separate legal
existence,63
and so it is possible for spouses to be citizens of different states.
Conspicuously, the Court has not relied on any of these rationales in recent
times. In 1930, in Ohio ex
rel. Popovici v. Agler,64the Court returned to Justice Daniel’s
rationale for the domestic-relations exception: federal courts sitting in
equity lack jurisdiction over cases that were heard in the English
ecclesiastical courts.65 Popovici was
a foreign diplomat stationed and residing in Cleveland, Ohio.66
When his wife sued him for divorce in state court, Popovici invoked Article
III, which gives the Supreme Court original jurisdiction over “all Cases
affecting Ambassadors, other public Ministers and Consuls,”67
to argue that the state court lacked jurisdiction.68
The Court reiterated that notwithstanding Article III’s “sweeping” language,69
federal jurisdiction did not extend to disputes over “divorces and alimony.”70
Such cases, the Court said, “had belonged to the ecclesiastical Courts.”71 The Court did not address the domestic-relations exception
again for more than half a century until 1992, when it decided Ankenbrandt v. Richards.72
Ankenbrandt eschewed all prior
rationales for the doctrine and offered a completely new one instead. In Ankenbrandt, which arose under diversity
jurisdiction, the Court raised doubts about the doctrine’s historical pedigree,
but it declined to weigh in on whether the English ecclesiastical courts had
exclusive jurisdiction over domestic relations.73
Shifting instead to statutory bases for the exception, the Court held that
Congress had ratified the Court’s longstanding construction of the federal-jurisdiction
statutes as excluding domestic-relations matters when it revised and reenacted
them in 1948.74
Although the 1948 revision replaced the phrase “all suits of a civil nature at
common law or in equity”75 with “all
civil actions,”76
Ankenbrandt asserted that Congress
intended “no changes of law or policy . . . from [these] changes of language.”77
It concluded that the exception reaches “only cases involving the issuance of a
divorce, alimony, or child custody decree.”78 The Supreme Court “raise[d] new questions”79
about the exception’s breadth in Elk
Grove Unified School District v. Newdow,80
which dismissed a First Amendment challenge to the pledge of allegiance on
domestic relations-like grounds.81 Michael
Newdow sued his daughter’s school district on her behalf as “next friend” and
on his own. He sought a declaration that a 1954 statute adding the words “under
God” to the Pledge of Allegiance82 violated the
Free Exercise Clause83 as well as an
injunction to stop the school from requiring students to recite the Pledge of
Allegiance.84
Under state law, Newdow lacked the right to sue on his
daughter’s behalf as her next friend.85
The Court concluded that Newdow lacked prudential standing to sue because
“disputed family law rights are entwined inextricably with the threshold
standing inquiry,”86 stressing
that “[w]hen hard questions of domestic relations are sure to affect the
outcome, the prudent course is for the federal court to stay its hand rather
than reach out to resolve a weighty question of federal constitutional law.”87
The Court observed that it “has customarily declined to intervene [in] the
realm of domestic relations,”88 invoking In re Burrus’s claim that it “belongs to the laws of the States and not
to the laws of the United States.”89
It then suggested that as a default rule, federal courts generally should not
hear cases involving domestic-relations matters: “[W]hile rare instances arise
in which it is necessary to answer a substantial federal question that
transcends or exists apart from the family law issue, in general it is
appropriate for the federal courts to leave delicate issues of domestic
relations to the state courts.”90 The Court’s language insinuated that the domestic-relations
exception may apply even in suits seeking to vindicate constitutional rights.
In Newdow’s wake, it is uncertain how
far the exception reaches or whether it applies to federal questions. Newdow stands in tension with Ankenbrandt, which held that the
exception only “divests the federal courts of power to issue divorce, alimony,
and child custody decrees.”91 Newdow asserted that federal courts
should adjudicate cases involving “delicate issues of domestic relations” only
in “rare instances,” regardless of whether they raise federal questions;
otherwise they should be left to the state courts.92
Two years after Newdow, in Marshall v. Marshall,93
the Court noted that Ankenbrandt had
“reined in”94
the domestic-relations exception without casting any doubt on that decision.
However, Marshall also did not
purport to modify Newdow in any way.
Whether the exception reaches federal questions thus remains an unresolved
question. Newdow’s reasoning
has been criticized by commentators as “obscure,”95
“opaque and sometimes contradictory,”96
“unnecessarily convoluted,”97 and
“difficult to fit . . . in the framework of traditional standing analysis.”98 Although some have speculated that
“the Court dismissed Newdow on
standing grounds to avoid a highly controversial political issue,”99
its reasoning “seems to apply the domestic relations exception to federal
questions and create a new default rule deferring to state courts on all domestic relations issues.”100
By suggesting that the exception could apply even in cases alleging violations
of individual rights under the Constitution, Newdow paved the way for claims that federal courts lack jurisdiction
to determine whether the Fourteenth Amendment requires states to grant same-sex
marriage licenses. Indeed, after Newdow,
scholars speculated that the exception “has the potential to be especially
powerful—and perhaps dispositive—in marriage equality cases.”101 Though Obergefell ultimately did not acknowledge the domestic-relations
exception, Newdow remains good law,
and its expansive rhetoric is available to any future litigant who wishes to
“argue . . . that federal question jurisdiction is inappropriate in cases that
involve ‘elements of the domestic relationship,’ even on constitutional
claims.”102 Obergefell was far
from the first federal-question case to rule on an issue that touched on
domestic relations without acknowledging the domestic-relations exception.103
Lower federal courts have been inconsistent in their treatment of the exception
in the federal-question context: courts will adjudicate the merits of some
cases without acknowledging the exception while asserting the exception to
dismiss other cases. While some courts characterize the exception as a
mandatory jurisdictional bar, others treat it as a prudential abstention
doctrine.104 Today, although federal courts apply
the domestic-relations exception across a variety of legal and factual
circumstances, there is little consensus at the circuit level about whether or
when it applies to federal-question jurisdiction.105
To say that a circuit split exists, however, would paint too orderly a scene;
several circuits have been internally inconsistent in how they approach the
issue. There are at least four sources of confusion about the
exception’s scope within the lower federal courts: (1) intracircuit splits, (2)
district courts that do not follow circuit opinions, (3) circuit courts that
use standards that are too vague to provide guidance, and (4) circuit court
panels that identify different relevant factors for analysis. This Section
describes each type of confusion. Consider, for example, the Second Circuit. In Williams v. Lambert,106
decided in 1995, the plaintiff sought a declaratory judgment that a New York
statute prohibiting the modification of a support agreement for an illegitimate
child deprived illegitimate children and their parents of equal protection
under the law.107 The Second
Circuit held that the district court erred in abstaining from hearing the case
because the domestic-relations exception applies only to diversity
jurisdiction.108
The very next year, however, in Mitchell-Angel
v. Cronin, the Second Circuit applied the exception in a federal-question
case. In Mitchell-Angel,a mother sued various defendants,
alleging that they “conspired to deprive her of custody and visitation rights
with her children” in violation of the First, Fifth, and Fourteenth Amendments.109
The district court dismissed her complaint pursuant to the domestic-relations
exception, and the Second Circuit affirmed, stating that the exception applies
to federal questions.110 Though Mitchell-Angel cited Williams,111
it did not acknowledge that its holding on the exception’s scope conflicted
with the earlier case, much less offer a reasoned explanation for this
departure. Likewise, consider the Third Circuit’s inconsistency. In Magaziner v. Montemuro,112
decided in 1972, the children of parties to a state court custody dispute had
retained a lawyer, who entered her appearance on the children’s behalf, but the
state-court judge quashed the appearance.113
The children sued the state judge under 42 U.S.C. § 1981 and 42 U.S.C. § 1983,
claiming a deprivation of their constitutional rights.114
Relying on the exception, as elaborated in In
re Burrus, the Third Circuit held
that the district court had properly dismissed the case in part on the ground
that the matter was “a domestic relations case involving a child.”115
It characterized the exception as a discretionary abstention doctrine properly
invoked when a case raises “significant state concerns” without any
“corresponding federal concerns.”116
Seventeen years later, it heard McLaughlin
v. Pernsley,117 an action
brought by a white couple challenging the removal of their black foster child
so that he could be placed with a black family.118
As in Magaziner, the plaintiffs sued
under § 1983, as well as § 1985(3).119
This time, the Third Circuit found that it had jurisdiction over the case,
holding that the domestic-relations exception did not apply to federal-question
cases.120
It did not acknowledge or explain its contrary holding in Magaziner. Intracircuit splits—directly contrary statements about
whether the exception may preclude federal-question jurisdiction—exist in
at least the Second,121 Third,122
Sixth,123
Seventh,124
Eighth,125
and Ninth126
Circuits. One panel will hold either that the exception does or does not apply
in federal-question cases, only for a later panel of the same circuit to rule
the opposite way, without acknowledging the resulting inconsistency. Similarly,
while the Tenth Circuit has declined to apply the exception in federal-question
cases,127
scattered district courts within it have nonetheless ruled otherwise.128
Conflicting or confusing precedents provide little guidance for litigants or
district-court judges. Intracircuit confusion falling short of an intracircuit split
has also contributed to confusion over the exception’s scope. For instance,
different panels of the Sixth Circuit have issued opinions that purport to
cohere with one another, but do so by employing standards too vague to offer
helpful guidance to litigants or district-court judges. The result is that
panels seem to decide whether to apply the exception to the particular federal
questions before them on an essentially ad hoc basis. In Denman v. Leedy,129
a plaintiff, who was estranged from his wife, sued various defendants,
including public officials and members of his family, under § 1983 and § 1985(3)
for “conspir[ing] to ‘deprive [him] of their mutual care, companionship, love
and affection.’”130 Although the
case involved federal questions, the Sixth Circuit affirmed the district
court’s decision to dismiss. Citing the domestic-relations exception, the Sixth
Circuit held: “[I]t is readily apparent that the substance of this claim is an
intrafamily custody battle. As such this court has no jurisdiction to entertain
the present suit.”131 A later
case, Firestone v. Cleveland Trust Co.,
dismissed a diversity action on domestic-relations grounds, asserting in dicta
that “[e]ven when brought under the guise of a federal question action, a suit
whose substance is domestic relations generally will not be entertained in a
federal court,” citing Denman.132
It gave no guidance on how to tell when purported federal-question suits are
“substantively” domestic-relations suits. In Catz v. Chalker,133
the plaintiff and defendant were former spouses. Robert Catz obtained a divorce
decree from an Ohio court in 1989, and the couple later moved to Arizona, where
in 1994, Susan Chalker obtained a divorce decree of her own.134
Catz brought a collateral attack against the Arizona decree in federal court,
but district courts in Tennessee and Ohio dismissed.135
Catz acknowledged Firestone and admitted that the domestic-relations
exception “is not the most coherent of doctrines.”136
However, it held that the exception applies only to a “‘core’ domestic relations case,” such as one “seeking a declaration
of marital or parental status,” and not to “a constitutional claim in which it
is incidental that the underlying dispute involves” domestic relations.137
Catz did not provide determinative
guidance for distinguishing core from noncore domestic-relations cases.
Instead, it supplied a list of paradigmatic core case scenarios, including
cases involving “the merits of a divorce action,” a “custody determination [of
what] would be in the best interest of a child,” and a determination of “an
equitable division of property.”138
Because Catz sought a determination only of “whether certain judicial
proceedings, which happened to involve a divorce, comported with the federal
constitutional guarantee of due process,”139
the Sixth Circuit concluded that his suit was a noncore case and that the court
had jurisdiction.140 In Catz’s wake, it seems that the Sixth
Circuit will hear genuine federal questions that merely happen to touch upon
domestic-relations matters or noncore domestic-relations cases. But the court
will not consider core domestic-relations cases or domestic-relations claims
brought in the guise of a federal question. Intracircuit confusion also arises when panels identify
different factors as relevant to whether courts should hear federal questions
involving domestic-relations issues, thus failing to establish consistent rules
for when the exception applies. For example, in deciding a habeas petition in Fernos-Lopez v. Figarella Lopez, the
First Circuit observed that some courts have applied the exception to federal-question
disputes, but “only when the federal court would become deeply involve[d] in
adjudicating domestic matters, or enmeshed in factual disputes.”141
It found no bar in that case, where the federal issue was “a procedural claim
having scant connection to the substance of the underlying alimony dispute.”142
In contrast, in Hemon v. Office of Public
Guardian, the First Circuit held that the exception precluded federal review
of the habeas petition at issue, but rested its decision on the “policy” of
“abstaining from asserting federal subject matter jurisdiction over domestic
relations matters.”143 This
language suggests that the court of appeals might have ruled the other way had
policy or prudential considerations so counseled. While Fernos-Lopez emphasized the fact/law and substance/procedure
divides as crucial to the exception’s applicability in particular cases, Hemon weighed federalism and finality
concerns against the federal interest in resolving the dispute.144 Overall, the various federal courts’ treatment of the
exception’s scope can, to quote one commentator, “most charitably be described
as chaotic.”145
Yet it is unlikely that the Supreme Court will step in anytime soon to resolve
this issue. One of the considerations that govern the Supreme Court’s decisions
to grant or deny certiorari is whether there exists a circuit split on the
issue.146
Because the lower courts’ divergent perspectives on the exception’s scope do not
cleave neatly across circuit lines to create a tidy circuit split, the
likelihood that the Supreme Court will grant certiorari is accordingly
diminished. It is ironic that so much confusion—confusion that goes well
beyond a circuit split—may help elude Supreme Court review, when one of
the goals of certiorari is to ensure uniformity of federal law across the
judiciary. In any event, the Court has shown that it is not eager to resolve
this issue, as it declined to do so in Obergefell.
This is unfortunate, as it leads lower federal courts to dismiss federal-question
cases that they are duty-bound to resolve. Why is there so much confusion in the courts over whether the
domestic-relations exception applies to federal questions? There are three
primary arguments as to why it does. The first is an originalist argument about
the meaning of the terms law and equity in Article III, as well as the federal
question jurisdiction statute. The second argument sounds in federalism; it
asserts that as a matter of constitutional structure and as a prudential
matter, the exception serves values that lie at the heart of our system of dual
sovereignty. The final argument sounds in doctrine: many of the early domestic-relations
cases in fact arose under federal-question jurisdiction, undermining the claim
that the exception is a limit only on federal diversity jurisdiction. First, consider the originalist argument for applying the
exception to federal questions. This argument construes Article III and the
federal-jurisdiction statutes to withhold domestic-relations jurisdiction from
the federal courts. It contends that the original public meaning of the terms
“law” and “equity” in these documents, at the moments of ratification and
enactment, respectively, reflected English law and equity jurisdiction, which
did not include domestic-relations cases, then understood to be the exclusive
province of English ecclesiastical jurisdiction. This Section rehearses the
constitutional and statutory arguments in turn. Article III provides, “The judicial Power shall extend to all
Cases, in Law and Equity, arising
under this Constitution, the Laws of the United States, and Treaties made, or
which shall be made, under their Authority.”147
At the time the Constitution was enacted, some assert, the phrase “Cases, in
Law and Equity” was understood to be a “term of art . . . which did not include
marriage-related issues.”148 The phrase
was understood to encompass only cases that could have been heard in the
English law courts, such as the courts of king’s bench or common pleas, or
equity courts, such as the courts of exchequer or chancery.149
In 1787, cases involving marital matters could not be brought in “the royal
courts (both the common law courts and the Chancery court) at Westminster.”150
They could only be brought “in the Ecclesiastical Courts of the Church of
England.”151
As such, the argument goes, the ratifiers of the U.S. Constitution could not
have understood the Article III terms “law” and “equity” to encompass cases
that fell within English ecclesiastical jurisdiction. Under this interpretation
of Article III, the Constitution, reflecting the contours of English jurisdiction,
simply does not grant federal courts jurisdiction over domestic-relations cases.
This would be true whether the domestic-relations case were a federal-question
case or a diversity dispute. The statutory argument for applying the exception to federal
questions is similar. Proponents of applying the exception to federal questions
argue that the Judiciary Act of 1789 “would not initially have been understood
to encompass matrimonial causes since the English courts of law and of equity
did not have jurisdiction over matrimonial causes at all until at least 1857.”152
Lower federal courts lacked statutory federal-question jurisdiction until
Congress passed the Jurisdiction and Removal Act of 1875,153
which was “directly modeled on the grant of the diversity jurisdiction in the
Judiciary Act of 1789”154 and “gave
the lower federal courts jurisdiction to hear ‘all suits of a civil nature at
common law or in equity.’”155 In 1875,
this language would have been understood as a term of art, empowering courts to
hear only “cases that could have been heard in Great Britain by the Court of
King’s Bench, the Court of Common Pleas, the Court of Exchequer, or the Court
of Chancery in 1789.”156 Thus, even
once the 1875 Act was passed, federal courts still lacked jurisdiction over domestic-relations
questions. According to Ankenbrandt,
by 1948, Congress understood the terms “law” and “equity” in the diversity-jurisdiction
statute to not encompass domestic-relations matters,157
and did not intend to upset that construction when it updated the
jurisdictional statutes that year.158
Thus, as Ankenbrandt ruled, when
Congress revised the jurisdictional statutes, it intended that domestic-relations
matters be excluded from the scope of federal jurisdiction.159
Although Ankenbrandt was a diversity case,
this reasoning applies just as well to the federal question jurisdiction
statute, or so the argument goes—by 1948, the exception was understood to
encompass federal-question jurisdiction, and Congress ratified that
understanding when it updated the federal question jurisdiction statute. The second line of argument marshaled in support of applying
the exception to federal questions is that doing so also serves important
federalism values. These arguments, which tend to be phrased in constitutional
or prudential (though not statutory) terms, fall into several categories. One
involves the claim that applying the exception to federal questions preserves
the autonomy of states to define public policy respecting the family.160
Another asserts that the adjudication of family law-issues is best left to
state courts, which have greater expertise and competence to adjudicate such
cases than do federal courts.161 A third
holds that giving state courts exclusive jurisdiction over domestic-relations
cases discourages forum shopping. The final argument is that an expansive domestic-relations
exception promotes parity between state and federal courts. One prudential reason to apply the exception to federal
questions is that family law is a core area of state concern. Prohibiting
federal courts from intruding into family law gives states flexibility to adapt
to different preferences and changing circumstances.162
Crafting a workable system of family law requires calibrating a “complex level
of benefits”163
to which state law entitles those who occupy different familial roles.
Decisions regarding not only whether to grant legal entitlements, such as
marriage, but also the degree of
benefits that state law will provide have normative dimensions. The Supreme
Court has long regarded the regulation of domestic relations “as a virtually
exclusive province of the States.”164
In United States v. Windsor, it
recognized that the “definition of marriage is the foundation of the State’s
broader authority [over] the subject of domestic relations.”165
By preserving state primacy over family law, the exception requires the federal
government to defer to states in a subject that is at the heart of their
powers. Cabining the exception to diversity cases “would interfere with the
states’ capacity to infuse normative structural ideals into marriage law.”166
Applying the exception to federal questions also manifests
respect for state-level democratic processes by preventing a single disgruntled
litigant with access to a federal court from undoing their results.167
Legislatures are the proper settings for policy debates over the structure of
marriage because, as representative, democratic bodies, they enable citizens to
participate in statewide conversations regarding the terms of the political
compact by which they interact as members of a society. A state’s family law
emerges from the crucible of open and inclusive legislative discussion in “a
statewide deliberative process that enable[s] its citizens to discuss and weigh
arguments.”168
Even state courts have a democratic
pedigree that their federal counterparts lack. While state courts may lack the
representative character of state legislatures, they are bound by the rules
that state legislatures lay down, which they may only disregard when state
constitutions or federal law commands. Yet citizens’ ability to self govern is
undermined when federal courts enable disgruntled participants in state-level
policy contests to relitigate debates that were settled through open and fair
democratic competition.169 A second reason to apply the exception to federal questions
is that federal courts are comparatively unprepared and ill equipped to
adjudicate domestic-relations matters, over which state courts have developed a
familiarity and mastery from centuries of dominant control.170
Federalizing broad swaths of family law might require creating a body of
one-size-fits-all federal law on topics such as divorce, the best interests of
the child, and who counts as a parent,171
interfering with states’ abilities to answer these questions themselves. Then there is the problem of forum shopping, which undermines
federalism values by enabling litigants to avoid the legal rules of decision
that states have adopted for themselves. Creating dual bodies of state and
federal family law would predictably cause litigants to “file in the
jurisdiction—state or federal—most favorable to them.”172
Indeed, an advocate would be professionally irresponsible not to shop for the most favorable forum for her or his client. As
one former trial lawyer wrote, his job involved “fighting every inch of the way
to prevail for [his] client. Shopping for the best forum available was simply
the first step in achieving that objective.”173
Why should we expect responsible advocates to refrain from shopping for the
best fora to resolve their clients’ domestic-relations matters? Finally, bringing federal questions within the scope of the domestic-relations
exception also recognizes parity between the federal and state courts with
respect to constitutional issues. Henry Hart, Jr. raises the point that state
courts are “the primary guarantors of constitutional rights, and in many cases
. . . the ultimate ones.”174 One reason why Congress has nearly
plenary power to restrict federal jurisdiction, Hart, Jr. says, is because state
courts can still hear federal-question claims.175
It is good enough, he says, that “state courts always have a general
jurisdiction to fall back on,” which “the Supremacy Clause binds them to
exercise . . . in accordance with the Constitution.”176
Though some might say that federal judges are better equipped to resolve
federal questions than state judges,177
the Supreme Court has asserted that state courts are just as hospitable fora for
the vindication of federal rights as federal courts.178
Perhaps the domestic-relations exception is just one reflection of a larger
structural parity between state and federal courts lying at the heart of the
Madisonian Compromise—the choice to “award[] Congress the option of
choosing whether or not to create lower federal courts,” made “[o]n the
assumption that the state courts would be open to hear all federal claims.”179 In sum, some assert that applying the domestic-relations
exception to federal questions serves important federalism values that our
system of dual sovereignty presupposes. Their argument is that an expansive domestic-relations
exception plays an essential role in preserving the subject of family law as a
realm of state prerogatives, emphasizing parity between state and federal
courts, and ensuring that the federal government does not overwhelm the states
but instead respects their important role in our constitutional structure. A final argument in favor of applying the domestic-relations
exception to federal questions is that despite often being characterized as a
limit on diversity jurisdiction,180
the exception was in fact established early on by cases involving federal
questions.181
This fact tends to undermine the claim that the exception is cabined to the
context of diversity jurisdiction. Of the earliest domestic-relations exception cases,
two—In re Burrus182and
Perrine183—arose
pursuant to federal habeas jurisdiction, while two more—Simms184
and De la Rama185—arose
pursuant to jurisdiction granted by federal statute over territorial courts.
None of these four early cases involved conflicts between diverse parties.
Another early domestic-relations case, Popovici,186
came to the Supreme Court from the Ohio Supreme Court but involved federal-question
jurisdiction over “all Cases affecting Ambassadors, other public Ministers and
Consuls.”187
In fact, only one early domestic-relations exception case, Barber,188 arose
pursuant to federal diversity jurisdiction. Later Supreme Court cases also seem to apply the exception to
federal questions. Newdow insinuated
that the domestic-relations exception applied even in cases raising “weighty
question[s] of federal constitutional law.”189
Even Baker v. Nelson,190
the 1972 summary disposition whose precedential value was extensively debated
in the lead-up to Obergefell,191
was arguably “based upon the domestic relations exception.”192
Baker involved an appeal from a
judgment by the Minnesota Supreme Court upholding a ban on same-sex marriage.193
The state argued that “[i]t is well established that each state under its own
power of sovereignty has the power . . . [and] duty to carefully regulate its
citizens in their domestic relationships.”194
It referenced the “landmark”195 case of Williams v. North Carolina, quoting its
language concerning a “most important aspect of our federalism whereby ‘the
domestic relations of husband and wife . . . were matters reserved to the
States’ . . . and do not belong to the United States.”196
Baker dismissed the appeal “for want
of a substantial federal question.”197
There is thus “a powerful argument . . . that the Court dismissed the appeal”
on jurisdictional grounds “based upon the domestic relations exception.”198 From its inception through the twenty-first century, the
Supreme Court has applied the domestic-relations exception in federal-question
cases. Those who claim that it applies only to diversity jurisdiction must
account for this longstanding practice. All of these arguments seem to present a colorable case for
applying the domestic-relations exception in federal-question cases. However,
as the next Part establishes, they individually and collectively fail. They
rely on dubious historical claims, ignore sound principles of statutory interpretation,
and disregard the text and purpose of Article III. The domestic-relations exception does not and cannot, as a
matter of positive law, limit federal-question jurisdiction. Article III and
sound principles of statutory interpretation obligate federal courts to
adjudicate federal questions, whether or not they involve domestic-relations
issues. First, as a matter of constitutional structure, the federal courts must
have jurisdiction over all federal-question cases. Additional, related
structural considerations compel the conclusion that the Supreme Court itself
must have authority over such cases, regardless of whether lower federal courts
do as well. Second, as a matter of statutory interpretation, the federal-jurisdiction
statutes provide that federal jurisdiction extends to federal questions
regardless of whether they involve domestic relations. Finally, invoking the
values of federalism and parity between state and federal courts is
insufficient to justify expanding the domestic-relations exception to federal
questions, because letting federal courts decide federal questions that involve
domestic relations better serves those values than leaving such cases entirely
to the state courts. Article III extends federal jurisdiction to all federal
questions, including those initially brought in state courts. In addition, it
requires that the U.S. Supreme Court have jurisdiction to review all cases
heard in lower federal courts. When state courts hear federal questions, appeal
must lie in federal court—specifically, in the Supreme Court. The domestic-relations
exception cannot rob federal courts of the jurisdiction that Article III
confers. The original public meaning of Article III gives the federal
courts jurisdiction over federal-question cases that involve domestic
relations. The Constitution gives the federal judiciary power over all federal-question
cases, irrespective of whether they touch on domestic relations. Article III
commands that federal judicial power “shall extend to all Cases, in Law and Equity, arising under this Constitution, the
Laws of the United States, and Treaties made, or which shall be made, under
their Authority.”199 Any
constitutional challenge to a law necessarily “aris[es] under [the]
Constitution”; any challenge based on a federal statutory right necessarily
“aris[es] under . . . the Laws of the United States.”200
The federal courts thus have jurisdiction over such challenges involving
domestic relations so long as such domestic-relations cases can be
characterized as cases in “law” or “equity.” Can they? To determine whether a
case arises in law or equity, courts usually look to the nature of the remedy
sought.201
A party challenging a statute’s lawfulness will usually seek to enjoin its
enforcement. The injunction is an equitable remedy. Suits seeking to enjoin a
law’s enforcement on constitutional or federal-law grounds are therefore cases
in equity, subject to federal jurisdiction. As Section II.A explained, the argument that domestic-relations
cases fall beyond the scope of Article III jurisdiction rests on the claim that
English law and equity courts could not hear domestic-relations cases because
the ecclesiastical courts had exclusive jurisdiction over them. This account,
however, oversimplifies the jurisdictional complexities of English domestic-relations
law and disregards colonial practice. Article III extends federal jurisdiction
to all cases in “Law and Equity.” At the time of and leading up to the
Constitution’s ratification, English equity courts regularly heard cases
raising family law issues.202
Notwithstanding the In re Burrus dictum, considerably less than
“[t]he whole subject of the domestic
relations”203
belonged to the English ecclesiastical courts. This suggests that some early
domestic-relations precedents in federal-question cases discussed in Section
II.C, such as Popovici204
and Justice Daniel’s dissent in Barber,205
are entitled to little weight because they relied on erroneous history.206 Whatever the relevance of English practice to the scope of
the exception may be, one should also look to the American colonial experience,
which is a more appropriate source of the original public meaning of the
jurisdictional terms in Article III. Importantly, ordinary American colonial
courts regularly exercised jurisdiction over domestic-relations matters. Even
if Justice Daniel were correct that in England, cases involving marriage,
divorce, and alimony belonged exclusively to the ecclesiastical courts,207
the early American colonies did not have ecclesiastical courts, so the ordinary
colonial law and equity courts absorbed that jurisdiction.208 Because there was no American
ecclesiastical jurisdiction, American equity jurisdiction absorbed
ecclesiastical cases. Crucially, jurisdictional labels generally meant little
in the American colonies. Colonial courts were regularly given names that did
not correspond to the function of similarly named courts in England.209
Because ordinary American courts exercised jurisdiction over domestic-relations
cases, Founding-era Americans likely would have understood the Article III
phrase “Law and Equity” to encompass all of the jurisdiction that ordinary
American courts exercised at the time, including jurisdiction over domestic
relations. A more restrictive construction of those terms would also be
inconsistent with the colonial legal culture from which the Constitution itself
emerged. Consider, for example, that Oliver Ellsworth, the Chief Justice of
Connecticut, whose colonial courts granted divorces,210
was a main drafter of the diversity-jurisdiction provisions in the Judiciary
Act of 1789,211
which mirrored the language of Article III of the Constitution. In sum, English and colonial practice shows that family-law
disputes have always fallen within the scope of cases in “law” and “equity” as
those terms have been understood in America. Under Article III, a federal
question is a case “in Law and Equity,”212
to which federal jurisdiction extends, regardless of whether it raises domestic-relations
issues. If the exception’s historicity depends on the claim that the
Founding-era Americans believed domestic relations to belong exclusively to the
English ecclesiastical courts, it rests on shaky ground.213
The existence of federal jurisdiction over all federal
questions, including those that involve domestic relations, is also evident in
Article III’s elegant jurisdictional framework. Article III uses broad,
obligatory language, which strongly suggests that the federal judiciary must
have jurisdiction over federal-question cases. As Akhil Reed Amar has famously
argued, the use of the word “all” before heads of jurisdiction over federal-question
cases, and the absence of “all” before heads of jurisdiction over diversity
cases, makes for a striking contrast, strongly indicating that federal-question
jurisdiction is mandatory and diversity jurisdiction is permissive.214 As Justice Story declared in Martin v. Hunter’s Lessee, an early
Supreme Court case concerning the scope of federal jurisdiction, “It is hardly
to be presumed that the variation in the language could have been accidental.”215
Indeed, records from the Constitutional Convention confirm that the Framers
used and omitted the word “all” purposefully when writing Article III to create
categories of obligatory and permissive jurisdiction.216 As they repeatedly revised Article
III’s text, the judiciary’s “two-tiered” structure of obligatory and permissive
jurisdiction came into greater focus.217 The resulting text of Article III
indicates that federal courts must have power to hear federal-question cases,
while Congress may limit the scope of their jurisdiction over diversity cases
through the “exceptions and regulations” clause.218 This all suggests that even if Congress or the courts could
carve out a domestic-relations exception to diversity jurisdiction, the
Constitution forbids such an exception to the mandatory federal-question
jurisdiction it vests in the federal courts. That conclusion is buttressed by
the observation that the word “all” mirrors another obligatory phrase219
found near the beginning of Article III, Section 2: “The judicial Power shall extend . . . .”220
As Robert N. Clinton has observed, the Framers regularly used the word “shall”
in an obligatory fashion.221 Altogether,
as Martin recognized, “The language
of . . . [A]rticle [III] throughout is manifestly designed to be mandatory upon
the legislature. Its obligatory force is so imperative that congress could not,
without a violation of its duty, have refused to carry it into operation.”222 The Framers created this two-tiered structure because they
feared that without a federal forum to resolve federal questions, state judges
would undermine the Constitution by refusing to give it effect.223 The federal jurisdictional framework
was designed so that federal questions need not be settled in the final
instance by state courts; review would always lie in federal tribunals.224 In contrast, the Framers did not
find it especially important to vest federal courts with diversity
jurisdiction, which presented state judges few opportunities to undermine the
Constitution and only did so ambivalently.225 As Amar argues, the Constitution has four structural features
that make federal judges superior to their state counterparts to adjudicate
federal-question disputes. First, because federal judges have life tenure
during good behavior and cannot see their salaries diminished, they possess a
degree of political independence and impartiality that state judges may lack.226
Second, federal judges are chosen by the President and confirmed by the Senate,
while state judges are not,227 a process
“designed to promote a high level of prestige and competence in the federal judiciary
that could not be guaranteed at the state level.”228
Third, federal judges are “officers of the nation . . . hold[ing] national
commissions,” “speak[ing] in the name of the nation,” and “paid out of the
national treasury.”229 Finally, the
Constitution makes federal judges accountable to the entire nation by providing
a mechanism for their impeachment, but it creates no corresponding impeachment
process for state judges.230 Two early Supreme Court cases, authored by two of the most
celebrated constitutional expositors in American history, confirm that the
Constitution was designed to ensure that state courts would not have the last
word on federal questions. First, Martin,
discussed above, held that the Supreme Court had the power to review federal-question
judgments by state courts.231 Justice
Story explained that this process ensures that federal courts, not state
courts, would in the final instance get to resolve disputes over the meaning of
federal law: even though “the judges of the state courts are, and always will
be, of as much learning, integrity, and wisdom, as those of the courts of the
United States,”232 he said, the
Constitution nonetheless reflects the assumption “that state attachments, state
prejudices, state jealousies, and state interests, might sometimes obstruct, or
control, or be supposed to obstruct or control, the regular administration of
justice.”233
Later, in Cohens v. Virginia, the
Court rejected the contention that the Supreme Court lacked jurisdiction over
criminal cases or cases in which a state was a party.234
Writing for the Court, Chief Justice Marshall stressed that state courts could
not always be trusted to adjudicate impartially disputes arising under federal
law, free of “the prejudices by which the legislatures and people are
influenced.”235
After all, Marshall reasoned, “[i]n many States the judges are dependent for
office and for salary on the will of the legislature,” whereas the Federal
Constitution provided for the independence of federal judges.236 For these reasons, whenever state courts hear federal
questions, appeal must lie in some federal court. To place federal-question
cases involving domestic relations beyond the scope of federal jurisdiction
would vest some of the “judicial Power of the United States”237
in the state judiciaries, violating the clear text of the Article III Vesting
Clause. One implication is that the Supreme Court itself must have jurisdiction
over all cases that raise federal questions, regardless of whether they involve
domestic relations. As Steven Calabresi and Gary Lawson have argued, “Article
III requires that the federal judiciary be able to exercise all of the judicial power of the United
States that is vested by the Constitution and that the Supreme Court must have
the final judicial word in all cases
. . . that raise federal issues.”238 Calabresi and Lawson derive this conclusion from the
constitutionally evident hierarchical relationship between one “Supreme” Court
and other federal courts that are “inferior” to it.239
According to them, the Supreme Court must have either original or appellate
jurisdiction over any case in the lower federal courts, or else it would not be
truly “Supreme” over them.240 Article
III’s hierarchical relationship between the “supreme Court” and “inferior
Courts”241
thus parallels Article II’s command chain between “a President”242 and “inferior [executive] Officers.”243
Edmond v. United States recognized as
a general matter that what makes an executive officer “inferior” within the
meaning of the Appointments Clause244
is that she or he has a “superior” other than the President himself.245
If this is true of inferior officers, it is also true of inferior
courts—both must have supervisors who are “Supreme” over them, who have
authority to oversee their acts undertaken in exercise of constitutional
authority.246 Though Calabresi and Lawson speak only to the Supreme Court’s
relationship with inferior federal courts, their reasoning extends to its
relationship with state courts hearing federal-question cases, which is analogous
to that between the President and state executive officers. Whenever a state
court hears a federal-question case, it exercises “[t]he judicial Power of the
United States.”247 If the domestic-relations
exception applies to federal questions, it puts some quantum of “[t]he judicial
Power”248
in state courts beyond the Supreme Court’s supervision. This would be analogous
to vesting some of “[t]he executive Power”249
in state officials who are not subject to presidential control—an
arrangement that the Supreme Court in Printz
v. United States declared unconstitutional.250 Article III gives the judiciary a unitary structure similar
to Article II’s “unitary executive.”251
It vests “[t]he judicial Power” in “one supreme Court, and in such inferior
Courts as the Congress may from time to time ordain and establish.”252
To use Justice Scalia’s phrasing, “this does not mean some of” the judicial power, “but all of” it.253 Construing
the exception to limit federal jurisdiction over federal questions would
violate Article III’s text, structure, intent, and purpose. Just as the
executive power cannot be vested in state officers not subject to presidential
supervision,254
nor can the judicial power be vested in state courts unless they are subject to
the Supreme Court’s supervision when exercising it. If the exception were
extended to federal questions, the judiciary’s “unity would be shattered,”255
and important questions of federal law would be committed exclusively to state
courts, precisely those bodies that the Framers felt ought not have the final
say on such matters. A faithful, holistic reading of Article III would avoid
such perverse results. As noted in Section I.B, some courts that apply the domestic-relations
exception in federal-question cases characterize it not as a mandatory
jurisdictional bar, but as a prudential abstention doctrine.256
Under abstention principles, federal courts decline to adjudicate certain
claims when doing so would undermine federalism values.257
Abstention doctrines are rooted in prudential principles rather than claims
that federal courts inherently lack power to hear certain cases.258
Moreover, they usually limit federal courts’ power to hear certain disputes
only for a limited duration.259 In contrast, a doctrine barring
federal courts from deciding domestic-relations cases would seemingly amount to
a blanket, perpetual bar to adjudicating them. Were the Supreme Court to hold
the domestic-relations exception inapplicable to federal questions, could
federal courts revive it through abstention, thereby obviating the decision’s
practical significance? The constitutionality of a domestic relations abstention
doctrine depends on how broadly it is formulated. To preserve states’ autonomy
in defining family policy and leave resolution of family-law issues to state
courts,260
such a doctrine must give state courts leeway to decide federal questions
involving domestic relations differently than would federal courts hearing
identical cases. For example, if a federal court would strike down a paternity
statute as violative of the Due Process Clause,261
a domestic relations abstention doctrine must permit a state court to uphold
it. The doctrine would hardly promote federalism if it required state courts to
rule exactly as federal courts would. To have teeth, state courts must be free
to disregard how federal courts would handle domestic-relations cases, even
those raising federal questions, just as they are not bound by federal court
pronouncements of state-law questions made pursuant to diversity jurisdiction.262 At stake in every federal-question case is a right or
interest that federal law protects.263
When a court reaches the wrong result, it wrongly, if inadvertently, deprives
the losing party of that right or interest. For reasons discussed in Section
III.A.2, federal judges are generally likelier than state judges to safeguard
rights and interests that federal law protects.264
They enjoy more judicial independence, have a national pedigree, speak on the
entire nation’s behalf, and are accountable, via impeachment, to the nation as
a whole rather than to any one state.265
By cutting off access to a federal forum,266
a domestic relations abstention doctrine would virtually ensure that
deprivations of such rights and interests occur more frequently. The only
instances in which this concern would not arise are cases in which federal and
state courts would reach identical outcomes on federal questions. In such
cases, the exception serves little purpose anyway; it cannot be justified on
the grounds that it relies on state courts’ unique expertise or preserves
states’ autonomy to develop their family law in ways that federal courts would
not. The constitutionality of an abstention-doctrine formulation
of the domestic-relations exception thus depends on whether the doctrine
preserves a role for federal courts as the final expositors of the meaning of
federal law. At a minimum, such a doctrine could not divest the Supreme Court
of the power to review federal questions; as explained earlier, Article III
requires that federal courts have the last word on questions of federal law
subject to Supreme Court review. Merely allowing losing parties in state courts
to seek a writ of certiorari would also not suffice, because grants of
certiorari are rare, and denials do not reflect judgments on the merits.267
Thus, federal-court review would be unavailable in the vast majority of domestic
relations federal question cases. A constitutionally adequate domestic relations abstention
doctrine could take one of at least three forms. First, lower federal courts
could abstain entirely from hearing federal questions involving domestic relations
if the Supreme Court exercised mandatory review over them. Not only would this
approach likely require amending the Supreme Court Case Selections Act of 1988,
which eliminated appeals as of right from state courts to the U.S. Supreme
Court,268
but it would also be very unwise. The purpose of the 1988 Act, as well as the
earlier Judiciary Act of 1925,269 was to give
the Court greater discretion and control over its docket. By 1925, the Court’s
docket had become “overwhelmed” by congestion that “threatened the Court’s
ability effectively to carry out its functions.”270 By 1988, the docket had once again
reached the point where “the burdens imposed on the Justices [had] become too
great for the country’s good.”271 Giving every
litigant in a domestic relations federal question case a right of appeal to the
Supreme Court would deluge its docket with cases that are unworthy of its
attention. Time constraints would inevitably require the Court to resolve most
of these cases through summary dispositions,272
with little to no genuine deliberative consideration. Second, lower federal courts could allow state courts to
exercise exclusive jurisdiction over all domestic-relations cases in the first
instance, but take appeals from them once state proceedings have concluded.
This approach would also require statutory change, as Congress has not given
federal or appellate courts jurisdiction to hear appeals from state-court
decisions.273
However, it is consistent with existing abstention principles that prevent
federal courts from adjudicating specific types of cases only until certain
state-court proceedings have concluded, not beforehand.274 Finally, a domestic relations abstention doctrine could
relegate federal courts to an even narrower role, adjudicating federal
questions involving domestic-relations issues only on certification from state
courts. On litigants’ motion, state courts could certify federal questions for
federal courts to resolve before entering judgment or while state appeals are
still pending. Under this approach, federal review would be unavailable once
the state court has entered judgment and no state-court appeals are pending. A
state-court litigant’s failure to seek certification of a federal question to a
federal court might be deemed a waiver of her or his right to federal-court
review. Limiting federal judicial review of federal questions involving
domestic relations to the posture of resolving certified questions may not be
wise, but it would probably satisfy the bare threshold for constitutionality.
So long as an abstention-doctrine formulation of the domestic-relations
exception preserved a meaningful role for federal courts to decide federal
questions, it would probably pass constitutional muster. The modern canonical rationale for the domestic-relations
exception’s provenance, articulated in Ankenbrandt
v. Richards, cannot justify applying the exception to federal questions. Ankenbrandt held that regardless of
whether the exception inhered in the early jurisdictional statutes, federal
courts widely recognized its existence by 1948, when Congress revised them.275
The Court explained that Congress, believing that the exception already obtained
and intending no change in the status quo, implicitly codified it in the
revised statutes.276 But even if one accepts Ankenbrandt’s
account as accurate, sound principles of statutory interpretation—indeed,
the same principles that the Supreme Court invoked in Ankenbrandt—suggest that Congress has eliminated any
statutory domestic-relations exception it might have created with respect to
federal questions. To see why, one must look to subsequent legislative history;
since amending the jurisdictional statutes in 1948, Congress has continued to
revise them, presumably with the knowledge that federal courts regularly hear
federal questions involving domestic-relations matters.277
As a matter of statutory interpretation, federal courts presume that Congress
is aware of how courts interpret its statutes, and that congressional silence
in the face of judicial constructions constitutes ratification, at least
insofar as Congress later amends the statute in question.278 If congressional awareness of a
particular federal court practice, coupled with a tacit affirmation of the
status quo, can constitute acquiescence in that practice even as Congress
formally remains silent on the matter, surely it can suffice to repeal the domestic-relations exception
just as well as create it. According to a leading treatise on statutory interpretation,
“Where a statute has received a contemporaneous and practical interpretation,
and is then reenacted as interpreted, the interpretation carries great weight
and courts presume it is correct.”279 The treatise also says that “[p]rior
judicial constructions have special force, and are prima facie evidence of legislative intent.”280
Two examples are illustrative. In 1922, the Court held that the Sherman
Antitrust Act does not apply to Major League Baseball.281
Fifty years later, it reaffirmed the baseball exemption on the grounds that
“Congress, by its positive inaction . . . far beyond mere inference and
implication, has clearly evinced a desire not to disapprove [it]
legislatively.”282 When the FDA
sought to regulate tobacco products after long disclaiming authority to do so,
the Court held that “Congress’ tobacco-specific statutes have effectively
ratified the FDA’s long-held position that it lacks jurisdiction under the FDCA
to regulate tobacco products.”283 Though “[a]t
the time a statute is enacted, it may have a range of plausible meanings,” the
Court asserted that “subsequent acts can shape or focus those meanings” over
time.284
If in 1948 the federal-question statute contained an implicit
domestic-relations exception to federal-question jurisdiction, Congress has
subsequently eliminated it. For decades, federal courts have regularly heard federal-question
cases raised in core domestic-relations contexts, such as divorce,285 visitation rights,286
paternity,287
legitimacy,288
child custody,289 alimony,290
adoption,291
and marriage.292
Collectively, this enormous body of case law includes both cases that
originated in state courts before making their way to the U.S. Supreme Court293
and cases that were initially filed in federal court.294
The federal courts that presided over these important cases all seemingly took
for granted that the domestic-relations exception did not apply. As Congress revised the jurisdictional statutes over time, it
surely knew that federal courts regularly heard federal questions involving
domestic relations, as this case law spans some of the most consequential
constitutional decisions ever. These decisions include seminal substantive due
process cases. Boddie v. Connecticut
held that states cannot condition an indigent person’s right to obtain a
divorce upon the payment of a fee.295
Zablocki v. Redhail held that states
cannot prohibit noncustodial parents who are in arrears on child support from
marrying.296
Michael H. v. Gerald D. found that
the relationship between a natural father and his child “born into a woman’s
existing marriage with another man”297
is not “a protected family unit . . . [or otherwise] accorded special
protection.”298
Troxel v. Granville said that a state
court’s broad application of a nonparental visitation statute infringed on the
basic right of parents to make child-rearing decisions.299 These cases also include some of the most important equal-protection
cases in history. Trimble v. Gordon
struck down an intestate succession law that discriminated against illegitimate
children.300
Orr v. Orr invalidated alimony
statutes that imposed duties on husbands but not on wives.301
Palmore v. Sidoti nullified a child-custody
award to a father made on the grounds that the mother’s choice to enter a
relationship with a black man would cause the child to suffer social stigma;302 noting that “[p]rivate biases may be
outside the reach of the law,” the Court nonetheless held “the law cannot,
directly or indirectly, give them effect.”303 To be sure, the fact that the Court has decided these cases
is not alone sufficient to prove that the domestic-relations exception does not
apply to federal-question cases. The fact that a Supreme Court case suffers
from a jurisdictional defect does not mean that it is not good law once
decided. However, Congress has never indicated that it believes these cases to
be jurisdictionally defective. Under Ankenbrandt’s
own reasoning, therefore, we can presume that Congress accepted and implicitly
ratified the jurisdictional assumption undergirding these decisions—that
federal courts may adjudicate federal questions raising domestic-relations
issues. The implied-ratification principle is based on a belief that
“a legislature is familiar with a contemporaneous interpretation . . . and
therefore impliedly adopts the interpretation upon reenactment.”304 Congress amended the federal
question jurisdiction statute three times after 1948, most recently in 1980.305 During this period, federal courts
interpreted that statute to confer jurisdiction over federal questions raising
domestic-relations issues. Congress knew of this construction, but never
expressed disapproval by doing what one would expect it to do if it felt that
federal courts were exceeding their jurisdictional boundaries: make the
exception statutorily explicit. Rather, it continued to amend the federal
question jurisdiction statute periodically. Based on Ankenbrandt’s reasoning, then, we can presume that Congress
believed that the proper scope of federal jurisdiction encompassed federal
questions involving domestic-relations matters. None of this is to suggest that “congressional inaction” regarding the exception
“indicates specific congressional intent.”306 Congress’s periodic amendments to
the federal-question statute were affirmative legislative actions, enacted via bicameralism and presentment.307
Nor is it relevant that Congress may not have realized it was eliminating the
exception. Congress, observing that federal courts regularly adjudicated
federal questions involving domestic relations, may have concluded that the
exception did not presently reach federal questions in the first place. In
eliminating the domestic-relations exception to federal-question jurisdiction,
Congress may have thought it was simply affirming the status quo, rather than
effecting any change in law. Indeed, under Ankenbrandt’s
logic, this is just what happened in 1948, when Congress first created the
exception even though it believed itself to be merely preserving a preexisting domestic-relations
exception.308 Some courts treat “Congress’ failure explicitly to reject the [exception] as congressional acquiescence
in the domestic relations exception.”309
For example, the Second Circuit concluded that “[m]ore than a century has
elapsed since the Barber dictum
without any intimation of Congressional dissatisfaction. It is beyond the realm
of reasonable belief that, in these days of congested dockets, Congress would
wish the federal courts to seek to regain territory . . . .”310
However, according to Ankenbrandt,
Congress created the exception only by implication.311
Under that reasoning, Congress may repeal the exception implicitly as well. Under Ankenbrandt’s
logic, Congress periodically amended the federal question jurisdiction statute
since 1948 knowing that federal courts regularly adjudicated federal questions
raising domestic-relations issues, yet never manifesting any disapproval. The
reasonable conclusion to draw from this is that as Congress revised the statute,
it implicitly acquiesced in this practice. Finally, permitting federal courts to hear federal-question
cases that involve domestic relations better serves the values of federalism
and state-federal court parity than giving state courts exclusive jurisdiction
over such cases. At its core, the domestic-relations exception is all about
federalism; it advances a claim regarding the deference due to state courts in
an area that is at the core of their constitutional powers. If “the
Constitution of the United States confers no power whatever upon the government
of the United States to regulate marriage in the States, or its dissolution,”312
then perhaps applying the exception to federal questions prevents the
federalization of power over a subject that the Constitution exclusively
commits to the states while simultaneously promoting respect for the role of
the state courts as faithful guarantors of constitutional rights, just like
their federal counterparts. There are several objections to these parity and
federalism-based defenses of the domestic-relations exception. Consider four
arguments advanced in the exception’s favor313:
(1) “the [superior] competence and expertise of state courts in settling family
disputes,” (2) “the strong interests of the state in domestic relations matters,”
(3) “the risk of inconsistent federal and state court rulings in cases of
continuing state court jurisdiction,” and (4) “congested federal dockets.”
These rationales may make sense in the diversity context, but have little force
in genuine federal-question cases that merely happen to “occur[] in a domestic
setting.”314
State courts have neither special competence to decide matters of federal law
nor special interest in the resolution of federal questions. Meanwhile, the
Supreme Court enhances (rather than undermines) judicial uniformity when it
settles contested federal questions by creating legal rules and standards for
the entire nation. Docket congestion, always a problem for federal courts, is a
poor excuse for stripping federal jurisdiction over cases raising significant
problems of federal law.315 Overall,
“the prudential concerns underlying” the domestic-relations exception have little
relevance in the federal-question context and “are completely absent” in
constitutional cases, at least insofar as the court need not “exercise
jurisdiction over or resolve any of those state law matters within the scope of
the domestic relations exception.”316 One could go so far as to call parity “a dangerous myth,” as
Burt Neuborne does, which “provides a pretext for funneling federal
constitutional decisionmaking into state courts precisely because they are less
likely to be receptive to vigorous enforcement of federal constitutional
doctrine.”317 The parity rationale, he suggests,
would diminish “the capacity of individuals to mount successful challenges to
[government] decisions.”318 The parity rationale also places no coherent limit on
Congress’s power to curtail federal jurisdiction. According to Hart, Jr.,
Congress may abstain from creating inferior federal courts entirely319
and limit the Supreme Court’s appellate jurisdiction through the Exceptions and
Regulations Clause.320 Apparently
“troubled by the breadth of this power,”321
he suggests a hopelessly indeterminate limiting principle: “the exceptions must
not be such as will destroy the essential role of the Supreme Court in the
constitutional plan.”322 But what is
the minimum that this “essential” role encompasses? A bigger problem with the parity rationale is that it is
rooted in an abstract, free-floating notion of federalism at odds with the
specifics found in the Constitution’s actual text. It “sidestep[s] the
requirement that the judicial power shall
be vested in federal courts and shall extend to all cases arising under the Constitution, laws and treaties of the
United States.”323 Parity might
be an attractive feature for a constitutional system to have, but the parity
rationale ignores important textual features of the Constitution that we
actually do have. Most fundamentally, if parity is simply the recognition that
“state and federal courts are functionally interchangeable forums likely to
provide equivalent protection for federal constitutional rights,”324
then it is not in tension with allowing federal courts to exercise jurisdiction
over all federal questions. While it justifies allowing state courts to hear
federal questions, it does not justify allowing them to be the only courts that may do so. Allowing both federal and state courts to hear
federal questions better respects their equal “constitutional obligation to
safeguard personal liberties and to uphold federal law”325
than giving state courts exclusive jurisdiction over such cases, which suggests
state court superiority and federal
court inferiority with respect to
federal questions. There is also good reason to believe that “the sovereign
interests of the States and the Federal Government” may not be “coequal.”326 Our
Constitution creates “a federal republic, conceived on the principle of a
supreme federal power and constituted first and foremost of citizens, not of
sovereign States.”327 The
Supremacy Clause,328 without
which James Madison felt the Constitution “would have been evidently and
radically defective,”329 makes this
clear. Even if federal and state governments are equal in the deference due to
them, the domestic-relations exception, if understood to apply to federal
questions, distorts the proper character of federalism in our constitutional
system, one “adopted by the Framers of the Constitution and ratified by the
original States.”330 The
exception, so understood, transforms this system from a device that “secures to
citizens the liberties that derive from the diffusion of sovereign power”331
into a crude cudgel of states’ rights. Federalism “has no inherent normative
value: [i]t does not . . . blindly protect the interests of States from any
incursion by the federal courts.”332
It is not about state primacy over the federal government; rather, it is about
respecting the proper roles of both. For this reason, “it cannot lightly be
assumed that the interests of federalism are fostered by a rule that impedes
federal review of federal constitutional claims.”333 In the post-Obergefell world,
federal courts will continue confronting cases in which they must decide
whether or not to apply the domestic-relations exception to federal questions.
If anything, now that same-sex marriage is the law of the land, the incidence
of such situations is likely only to increase. Recently, the Supreme Court
reversed an order of the Alabama Supreme Court denying a lesbian woman’s right
to adopt three children she had raised with her former partner, a right that a
Georgia court had granted the woman before the couple split up; the Court held
that the Alabama court’s order violated the Full Faith and Credit Clause.334
As more gay and lesbian persons litigate claims under the U.S. Constitution or
federal statutes that implicate divorce, child-custody arrangements, alimony
awards, child support, and so on, federal courts will be presented with more
opportunities to decide whether or not the exception applies to federal-question
jurisdiction. These cases raise important questions of constitutional and
federal statutory law, yet federal courts applying the domestic-relations
exception to federal questions would refuse to adjudicate them.335 This Note advances a broad view of federal jurisdiction. It
asserts that, under Article III, federal courts—and especially the
Supreme Court—must have jurisdiction over all federal-question cases that arise in state or federal courts,
including those arising in domestic-relations contexts. As a matter of ordinary
statutory construction and constitutional interpretation, the domestic-relations
exception does not and cannot bar federal courts from hearing cases that raise
federal questions. When federal courts are called upon to decide important
problems of federal law, questions as profound as whether the Constitution
tolerates state laws that prohibit same-sex marriage, they should not shy away
from their duty “to say what the law is.”336Introduction
I. background
on the domestic-relations exception
A. The
Exception’s Provenance and Competing Rationales
B. Confusion
Across and Within the Circuits
II. the
case for applying the exception to federal questions
A. The
Originalist Argument
B. Federalism-Based
Arguments
C. The
Precedential Argument
III.
the case against applying the exception to federal questions
A. The
Constitutional Argument: Applying the Exception to Federal Questions Would
Violate Article III
1. Federal
Questions Involving Domestic Relations Are Cases in “Law” or “Equity”
2. Appeals
from State Court Federal Question Judgments Must Always Lie in Federal Court
3. The
Domestic-Relations Exception as an Abstention Doctrine
B. The
Statutory Argument: Under Ankenbrandt, the Federal Jurisdictional
Statutes Are Best Read as Not Creating a Domestic-Relations Exception to
Federal-Question Jurisdiction
C. The
Federalism-Based Argument: Applying the Exception to Federal Questions
Undermines Federalism Values
Conclusion