Federal questions and the domestic-relations exception.

• Author: Silverman, Bradley G.
• Position: II. The Case for Applying the Exception to Federal Questions C. The Precedential Argument through Conclusion, with footnotes, p. 1395-1427

3. The Precedential Argument

   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 Burrus (182) and Perrine (183)--arose pursuant to federal habeas jurisdiction, while two more--Simms (184) and De la Rama (185)--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.

   3. THE CASE AGAINST APPLYING THE EXCEPTION TO FEDERAL QUESTIONS

   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.

1. The Constitutional Argument: Applying the Exception to Federal Questions Would Violate Article III

   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.

   1. Federal Questions Involving Domestic Relations Are Cases in "Law" or "Equity"

   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 Popovici (204) and Justice Daniel's dissent in Barberj (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)

   2. Appeals from State Court Federal Question Judgments Must Always Lie in Federal Court

   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...