Symposium: Supreme Court should address the domestic-relations exception to federal jurisdiction in its marriage-case decision

Larry Joseph serves as outside counsel to the Eagle Forum Education and Legal Defense Fund.

In an amicus brief filed in support of neither party in DeBoer v. Snyder, a client (the Eagle Forum Education & Legal Defense Fund) asked the Court to add an additional Question Presented on federal courts’ jurisdiction to hear these marriage controversies in the first place: “Whether a ‘domestic-relations exception’ to federal jurisdiction deprived the lower federal courts of subject-matter jurisdiction over this litigation?” With that background, the Court’s order that “[t]he parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions” could be read to foreclose the briefing of non-merits issues such as jurisdiction that the parties did not raise in their petitions. If that reading is correct, the order seems to reject the longstanding rule that jurisdictional issues go to the very power of appellate courts to hear a case and thus can be raised at any time – or sua sponte – even for the first time on appeal.

Alternatively, the order may simply reflect the fact that each of these collected cases involves one or both of two questions: the right to in-state marriage and the right to state recognition of out-of-state marriages. On that more plausible reading, the order simply confines each party’s merits-stage brief to the substantive question or questions presented in its petition-stage filings, without limiting the right to raise jurisdictional issues for the first time on appeal.

The domestic-relations exception to federal jurisdiction derives from the Constitution’s and federal statutes’ limiting the judicial power to cases in law and equity

Reflecting our federal structure, in which the states remain sovereign in the spheres not delegated to the federal government, the Supreme Court’s 1890 In re Burrus decision recognized a “domestic-relations” exception to federal jurisdiction: “The 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.” Moreover, the Court’s pre-Fourteenth Amendment Barber v. Barber decision previously had “disclaim[ed] altogether any jurisdiction in the courts of the United States upon the subject of divorce, … either as an original proceeding in chancery or as an incident to divorce a vinculo.” That exception has both a statutory and a constitutional component, and it concerns both where litigation starts and where it ends. As explained below, these petitions from the Sixth Circuit may present only the statutory question of where litigation starts – e.g., state or federal court – without addressing the constitutional question whether the Supreme Court has the power to review such cases coming from the state-court systems.

Constitutionally, Article III, Section 2 extends the “judicial power” of the Supreme Court (and any lower federal courts that Congress creates) to “all cases, in law and equity, arising under this Constitution, the laws of the United States,” as well as other contexts not relevant here. The key – and potentially limiting – phrase is “all cases, in law and equity.” While that phrase today might sound like it covers all cases, the phrase did not cover all cases at the time of this nation’s founding.

Specifically, when the states ratified the Constitution, cases at law were heard before the Court of King’s Bench or the Court of Common Pleas, and cases in equity were heard before the Court of Exchequer or the Court of Chancery. But only ecclesiastical courts could hear marriage-related cases, as the Supreme Court recognized in its 1878 Reynolds v. United States decision: “upon the separation of the ecclesiastical courts from the civil[,] the ecclesiastical [was] supposed to be the most appropriate for the trial of matrimonial causes and offences against the rights of marriage.” Although there is a question whether the states vested the Supreme Court with authority over these issues, that constitutional issue is not necessary to deciding these petitions from the Sixth Circuit because a statutory limitation on the lower federal courts’ jurisdiction requires these cases to be brought in state court.

The statutory and constitutional questions pose the same etymological issue, but the statutory one focuses not on the outer constitutional limits of the federal judicial power but on the limits that Congress intended when it created the lower federal courts. As the Court recognized in its 1986 Merrell Dow Pharmaceuticals, Inc. v. Thompson and 1992 Ankenbrandt v. Richards decisions, respectively, the two are not the same thing: “[the] Article III … power to hear cases ‘arising under’ federal statutes… is not self-executing,” and “Whatever Article III may or may not permit, we thus accept the Barber dictum as a correct interpretation of the Congressional grant.” Statutorily, the original grants of jurisdiction to the federal courts used the same law-and-equity limits as Article III, and the 1957 Fourco Glass Co. v. Transmirra Products Corp. decision already has recognized that the 1948 modernization of the statutory language made no unannounced changes: “no changes of law or policy are to be presumed from changes of language in the revision unless an intent to make such changes is clearly expressed.”

Suggesting a domestic-relations exception to federal-court jurisdiction requires a response to the audience’s incredulous question: how could a federal court possibly lack jurisdiction over a claim arising under the Fourteenth Amendment? The fact that virtually all currently practicing lawyers assume that federal-question jurisdiction is available for any federal claim does not make it so. As Justice Holmes recognized in New York Trust Co. v. Eisner, sometimes “a page of history is worth a volume of logic.” Until 1875, the lower federal courts did not have federal-question jurisdiction. Indeed, until 1980, federal-question jurisdiction itself had an amount-in-controversy requirement that likely would have precluded suits over marriage rights under Section 1331. As these historical examples demonstrate, unexamined assumptions cannot accurately define the bounds of the lower federal courts’ jurisdiction. As creatures of statute, the lower courts have only the jurisdiction that Congress gave them, which need not extend to the full limits – whatever they may be – of the judicial power under Article III.

The Ankenbrandt decision suggests a narrowing of the domestic-relations exception to cases “involving the issuance of a divorce, alimony, or child custody decree,” but not to torts such as fraud. As far as it goes, that distinction supports including the right to marriage within the domestic-relations exception, in contrast to recognized federal jurisdiction over torts at law and in equity. Moreover, other marriage-related cases would fall within the law-equity categories, even if a pure marriage-rights case does not. For example, the Court’s 1967 Loving v. Virginia decision arose from a criminal action appealed from a state supreme court, and the 2013 United States v. Windsor decision arose from a federal tax case brought under 28 U.S.C. § 1346(a)(1). In both cases, the suit was in equity (Loving) or law (Windsor), and the petitioner Loving and plaintiff Windsor did not seek the right to marry, having married under another jurisdiction’s laws that implicated rights vis-à-vis the respondent Virginia and the defendant United States. No decision of the Supreme Court has specifically addressed and rejected the lower federal courts’ lack of jurisdiction over pure domestic-relations issues.

State courts provide an alternate and more appropriate forum to hear domestic-relations issues

If the lower federal courts lack jurisdiction over domestic-relations issues like the ones presented here, plaintiffs still could bring these federal claims in state court under the doctrine of concurrent jurisdiction. Indeed, several of the Supreme Court’s decisions touching upon domestic-relations issues reached the Court on direct review from state court systems: Palmore v. Sidoti (1984); Michael H. v. Gerald D. (1989); Troxel v. Granville (2000); and Adoptive Couple v. Baby Girl (2013). Significantly for future cases, however, these decisions involved no discussion – for or against – a domestic-relations exception to Article III jurisdiction. As what the Court in Steel Co. v. Citizens for a Better Environment called “drive-by jurisdictional rulings,” in which the Court simply assumed jurisdiction, these merits decisions do not rebut a domestic-relations exception to Article III jurisdiction. On the other hand, it is entirely possible that Article III’s law-and-equity jurisdiction is broader than the statutory jurisdiction that Congress has conveyed to the lower federal courts.

One cannot assume that the failure of Congress to expand federal-question and civil-rights jurisdiction under Sections 1331 and 1343 has been a mere oversight that might be overlooked in the interest of perceived justice to the plaintiffs’ federal claims. The Constitution establishes a federal structure of dual state-federal sovereignty, which the states entered with their retained sovereignty intact. While the Sixth Circuit here appropriately allowed Tennessee, Michigan, Kentucky, and Ohio to appear before the same panel on the same day to defend their marriage laws, other circuits have not provided their states the same luxury. For example, South Carolina now must defend her laws before a Fourth Circuit that already has resolved the constitutional issue against court clerks from Virginia. If this type of litigation had to begin in state court, each state would proceed in its own courts before the final review, if any, in the U.S. Supreme Court. That procedure would prove markedly more consistent with our constitutional structure than allowing these suits to begin in the lower federal courts.

Considering the jurisdictional issues will enhance the Court’s credibility

However it answers the constitutional and statutory questions about the scope of judicial authority, it is critical for the Court to ask these questions. As the Court stated in Warth v. Seldin and has often repeated since, these Article III issues arise from “concern about the proper – and properly limited – role of the courts in a democratic society.” On top of that concern, any withdrawal of jurisdictional issues would represent an unexplained and insupportable departure from the “special obligation” recognized in Steel Company of “[e]very federal appellate court … to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review, even though the parties are prepared to concede it.” Accordingly, it would disserve the Court to read its order literally to foreclose the briefing of non-merits issues such as the domestic-relations exception to federal jurisdiction.