Federal questions and the domestic-relations exception.

• Author: Silverman, Bradley G.
• Position: Introduction through II. The Case for Applying the Exception to Federal Questions B. Federalism-Based Arguments, p. 1364-1395

NOTE CONTENTS INTRODUCTION 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 INTRODUCTION

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 "provided] ... 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 matter (22) and (2) efforts to cast doubt on the exception's historicity (23) 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 constitutional (26) 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 statute (29) 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...