The Yale Law Journal

VOLUME
125
2015-2016
NUMBER
5
March 2016
1150-1547
Note

Federal Questions and the Domestic-Relations Exception

Bradley G. Silverman

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.


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 “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.

I. background on the domestic-relations exception

A. The Exception’s Provenance and Competing Rationales

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

B. Confusion Across and Within the Circuits

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.

II. the case for applying the exception to federal questions

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.

A. The Originalist Argument

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.

B. Federalism-Based Arguments

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.

C. 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 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.

III. 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.

A. 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 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

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 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.

3. The Domestic-Relations Exception as an Abstention Doctrine

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.

B. The Statutory Argument: Under Ankenbrandt, the Federal Jurisdictional Statutes Are Best Read as Not Creating a Domestic-Relations Exception to Federal-Question Jurisdiction

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.

C. The Federalism-Based Argument: Applying the Exception to Federal Questions Undermines Federalism Values

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

Conclusion

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.”336