A non-contentious account of Article III's domestic relations exception.

• Author: Pfander, James E.

ABSTRACT

Scholars and jurists have long debated the origins and current scope of the so-called domestic relations exception to Article III. Rooted in the perception that certain family law matters lie beyond the power of the federal courts, the exception was first articulated in the nineteenth-century decisional law of the Supreme Court and has perplexed observers ever since. Scholarly debate continues, despite the Court's twentieth-century decision to place the exception firmly on statutory grounds in an effort to limit its potentially disruptive force.

This Article offers a novel, historically grounded account of the domestic relations exception, connecting its origins to the Article III distinction between "cases" and "controversies." Much domestic relations law fails to present a "controversy" within the meaning of Article III; the consensual nature of many status-altering acts (marriage, consensual divorce, adoption) forecloses a federal dispute-resolution role. But when federal courts hear "cases" arising under federal law, they have full power to exercise both contentious and (what Roman and civil lawyers refer to as) non-contentious jurisdiction. Our non-contentious account explains a range of puzzles, including why Article III courts can issue decrees at the core of the domestic relations exception when the matter at hand implicates federal law.

INTRODUCTION

Like the probate exception, a doctrinal twin separated at birth, the domestic relations exception to Article III has been the subject of frequent scholarly contestation. (1) No consensus account explains the exception's constitutional and statutory origins or its scope in the present day. To be sure, the Supreme Court narrowed the domestic relations exception considerably in Ankenbrandt v. Richards, (2) holding that it was a restriction on the statutory power of the district courts to exercise diversity jurisdiction. (3) But Judge Richard Posner, among others, has observed that the same language that supposedly gave rise to the exception on the diversity side (a statutory grant of jurisdiction limited to matters of "common law or in equity" that omits claims before the ecclesiastical courts in England) also appears in the statutory grant of jurisdiction over cases (in law and equity) arising under the Constitution, laws, and treaties of the United States. (4) How then can the exception apply only to diversity matters and not also impose a limit on the power of the federal courts to entertain federal question cases that happen to arise in the context of domestic relations?

Other questions abound. The federal courts have long disclaimed jurisdiction as to matters related to divorce, alimony, and child custody, yet have demonstrated a willingness to exercise appellate jurisdiction over such matters arising in territorial courts. (5) Equally puzzling, the Court views the domestic relations exception as extending to matters of child custody though the only Supreme Court case addressing the matter arose in the context of a federal habeas corpus petition. (6) Further, while some have proposed to explain the domestic relations exception with a status-property distinction, (7) the courts have never wholeheartedly endorsed such a view. (8) And while the Court attempted to clarify the scope of the exception in Ankenbrandt, lower federal courts continue to apply the domestic relations exception in an apparently haphazard fashion. (9)

In this Article, we propose a new account of the domestic relations exception. We begin with the proposition that Article III extends the judicial power only to the "Cases" and "Controversies" that appear on the jurisdictional menu. (10) While the term "cases" extends broadly enough to include both disputes over federal law between adverse parties and a range of ex parte or non-contentious federal matters (such as naturalization petitions, the administration of bankruptcy estates, and in rem proceedings in admiralty jurisdiction), (11) the idea of a "controversy" has a narrower scope. It encompasses only disputes between the opposing parties identified in Article III and forecloses the federal courts from entertaining administrative or ex parte proceedings based on state law. (12) We think the inability of federal courts to exercise non-contentious investitive jurisdiction over matters of state law helps to explain the domestic relations exception. Just as the ex parte character of much state probate law means that Article III courts cannot entertain such matters, (13) so too we find that the ex parte and investitive features of state family law place some aspects of domestic relations beyond the federal judicial power.

Domestic relations often begin with a marriage (but couples can certainly cohabit and start a family without one). Although sometimes characterized as a matter of contract, the recognition of a legally valid marriage works as a consensual change in the parties' status. (14) The parties do not dispute a claim; they seek to secure the benefits (legal, religious, social) that come with the formal recognition of their union. (15) So long as the right to matrimony has been defined by state law, (16) federal courts as such have no role to play in the administration of that law. Federal judges do occasionally perform marriages, but do so by virtue of local law that confers power on them to preside over a marital ceremony. (17) Where, by contrast, Congress has adopted federal laws to govern aspects of domestic relations, (18) we have little doubt that the federal courts could perform the full panoply of administrative chores that today fall within the domestic relations exception. Such matters would constitute not controversies under state law, but cases under federal law as to which the adverse-party requirement does not apply in full. (19) Similarly, treaty-based claims in the domestic relations sphere arise under federal law and thus do not implicate the limited power of federal courts over matters of state law. (20)

Courts have administered other features of domestic relations in the absence of a dispute between parties. For example, the English High Court of Equity took the lead in appointing guardians for children who had no parents to play that role. (21) No genuine dispute was required to bring this appointment power into play. Similarly, parties seeking (no-fault) divorce often do so today in the absence of any dispute, (22) just as in earlier times the parties to a nominally contested divorce might feign a dispute to secure a formal change in status that they both (devoutly) sought. (23) If one thinks of the family as a bundle of legal relations called into being through the performance of legally binding acts (marriage) and split asunder by other legally binding acts (divorce), one can easily see why the federal courts viewed themselves as lacking the power to perform any uncontested registration or certification role necessitated by the formalization of these state law status changes. They simply lacked power to administer state law in the absence of a dispute. But once a dispute arose between parties whose disparate citizenship satisfied the demands of federal jurisdiction, the federal courts were, if sometimes grudgingly, willing to entertain the matter as a part of their standing diversity jurisdiction.

One gets a sense of this grudging willingness from the Supreme Court's first attempt to explain the scope of federal judicial power in the domestic relations context. In Barber v. Barber, (24) the Court agreed to permit the lower federal courts to hear a dispute between former spouses that met the requirements of diversity. (25) But, pressed by a dissenting opinion that argued for a broad exception, the Court explained that certain other questions of domestic relations lay outside the scope of federal judicial power: "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 a vinculo, or to one from bed and board." (26) While one can certainly interpret this language more broadly, we think the majority may have been identifying situations in which the requisite elements of diversity of citizenship were likely unavailable. To the extent that the Court sought to define judicial power by reference to the elements of diversity, and said nothing to foreclose federal question jurisdiction, the decision identifies an important fracture line in Article III, although we have some tidying up to do around the edges.

In offering a novel view of the domestic relations exception, this Article begins in Part I with a critical overview of leading scholarly accounts. In Part II, the Article lays the groundwork for our non-contentious alternative, offering both a brief history of marriage and placing its many investitive features into the civil law context of non-contentious jurisdiction. Part III of the Article applies our theory to current issues in domestic relations law, including the Court's decision in Ankenbrandt and the questions that have since arisen in the lower federal courts. We conclude that some issues in the current debate over family law limits on federal judicial power can best be resolved with a non-contentious view of the domestic relations exception.

1. TRADITIONAL ACCOUNTS OF THE DOMESTIC RELATIONS EXCEPTION

   In this Part, we offer a quick sketch of the widely ranging accounts of the domestic relations exception that have worked their way into the scholarly literature. (27) We begin by considering and rejecting one of the most frequently invoked theories of the exception, the claim that it derives from the inability of the federal courts to entertain matters that were grist for the ecclesiastical courts in England. We next consider a variety of allied accounts, all of which emphasize the traditional role of state law in defining domestic...