The federal domestic relations exception

I never understood how the gays were able to successfully get federal courts to hear their demands for changes to marriage laws, and yet dads like me routinely get dismissed from federal court. The recent marriage decision re-iterated that parents have a constitutional right to direct the upbringing of their kids, and yet many dads are arbitrarily denied that right without any good cause or due process. Noncustodial dads have a much stronger federal case than gays, it seems to me.

So how do the federal judges get away with dismissing complaints from dads? Usually they cite an obscure doctrine called the domestic relations exception. I never understood this, as I could not find a clear explanation of it anywhere. It is not in the Constitution, or in federal statutes, or in court precedents.

tl;dr: If you bring a family law case into federal court, you will be dismissed for obscure reasons that predate the US Constitution, and which hardly anyone even understands anymore.

I finally got an explanation from the Law Office of Lawrence J. Joseph. It is much more obscure and contorted than I thought, and requires explaining centuries of legal history. I post the explanation here, as it is hard to find:

The domestic-relations exception to federal jurisdiction recognizes that domestic-relations cases fall outside the categories of cases at law and equity over which both Article III and statutory subject-matter jurisdiction extend the federal judicial power. Not only when the founders drafted Article III and the original states ratified it, but also when Congress drafted the precursors to the federal courts’ statutory federal-question and civil-rights jurisdiction, a case asserting the right to marriage was not a case at law or equity. Accordingly, this marriage-rights case falls outside the federal judicial power.

In Utah, the common law prevails except as abrogated by its constitution or legislature, and – like most (if not all) states – Utah adopts the common law of England. Daniels v. Gamma West Brachytherapy, LLC, 2009 UT 66, ¶49, 221 P.3d 256, 270 (Utah 2009); UTAH CODE ANN. §68-3-1. Utah therefore naturally looks to English authorities on common-law issues, Branch v. Western Petroleum, 657 P.2d 267, 273 (Utah 1982), which is fatal – both on jurisdiction and the merits – to Plaintiffs’ claims.

In English common law, marriage was defined as “the voluntary union for life of one man and one woman, to the exclusion of all others.” Goodridge v. Dep’t of Pub. Health, 440 Mass. 309, 343, 798 N.E.2d 941 (Mass. 2003) (quoting Hyde v. Hyde, [1861-1873] All E.R. 175 (1866)). At the time of this Nation’s founding, England’s ecclesiastical courts had sole jurisdiction over marriage:

The holiness of the matrimonial state is left entirely to the ecclesiastical law: the temporal courts not having jurisdiction to consider unlawful marriages as a sin, but merely as a civil inconvenience. The punishment therefore, or annulling, of incestuous or other unscriptural marriages, is the province of the [ecclesiastical or] spiritual courts.

1 WILLIAM BLACKSTONE, COMMENTARIES *433 (emphasis in original). Thus, the jurisdictional analysis here must consider not only founding-era’s English definitions of domestic relations but also the division of English judicial authority in such cases.2

fn 2 Indeed, until 1604, polygamy itself was “‘considered as of ecclesiastical cognizance exclusively.’” People v. Martin, 188 Cal. 281, 286-87, 205 P. 121, 123-24 (Cal. 1922) (quoting 7 Corpus Juris, at 1158). In 1604, England made polygamy a crime under the common-law courts’ jurisdiction. Id. (citing 1 Jac. 1, Chap. XI, 7 Stats. at Large 88).

Blackstone recognized three types of unwritten or common law: general customs, particular customs that affect particular districts, and particular customs adopted and used by particular courts (e.g., civil and canon laws). Id. *67, *79. The courts responsible for the third common-law group included the ecclesiastical courts, as well as the university, military, and admiralty courts. Id. *83. An appeal from these courts lay in the Crown, not to the appellate courts at Westminster. Id. *84. At the time, 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. 3 BLACKSTONE *37-*46. In 1787, only ecclesiastical courts could hear marriage-related cases like this one, State v. Roswell, 6 Conn. 446, 448-50 (Conn. 1827) (collecting cases); Reynolds, 98 U.S. at 165 (“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”); accord Barber v. Barber, 62 U.S. (21 How.) 582, 591 (1859);3 In re Burrus, 136 U.S. 586, 593 (1890); cf. Maynard v. Hill, 125 U.S. 190, 206 (1888).

fn 3 Significantly, the Barber majority did not disagree on this point with the Barber dissent, which was even more clear: “it is well known that the court of chancery in England does not take cognizance of the subject of alimony, but that this is one of the subjects within the cognizance of the ecclesiastical court, within whose peculiar jurisdiction marriage and divorce are comprised.” Id. at 604 (Daniel, J., dissenting).

Our Constitution establishes a federal structure of dual state-federal sovereignty, Tafflin v. Levitt, 493 U.S. 455, 458-59 (1990), which the states entered with their retained “sovereignty intact.” Fed’l Maritime Comm’n v. South Carolina State Ports Auth., 535 U.S. 743, 751-52 (2002); U.S. CONST. amend. X. The question presented here is whether the people or the states surrendered their power over domestic relations to the federal government:

When the Revolution took place, the people of each state became themselves sovereign; and in that character held [all of the powers previously held by the Crown] subject only to the rights since surrendered by the constitution to the general government.

Martin v. Lessee of Waddell, 41 U.S. 367, 406 (1842). More specifically, the question presented here is whether the states – as heirs to the Crown’s full sovereign, judicial powers – surrendered the sliver of judicial power over domestic relations, which ecclesiastical courts exercised in England.

Unlike our federalist structure that divides power between the federal and state sovereigns, England’s sovereignty – both the inter-branch powers and the local-national powers – were combined in the Crown and only in the Crown. Cent. Va. Cmty. College v. Katz, 546 U.S. 356, 366 (2006); Boumediene v. Bush, 553 U.S. 723, 748 (2008). Whereas all claims under English law must lie within some English court, Mostyn v. Fabrigas, 98 Eng. Rep. 1021 (K.B. 1774), it is not true here that all claims must lie within some federal court. While many claims fall within the concurrent jurisdiction of federal and state courts, Haywood v. Drown, 556 U.S. 729, 735 (2009), some claims fall exclusively with one sovereign’s courts.

Consistent with our federal structure, in which the states remain sovereign in spheres not delegated to the federal government, the Supreme Court long ago 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.

Burrus, 136 U.S. at 593. Indeed, the Supreme Court had previously “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.” Barber, 62 U.S. (21 How.) at 597. That exception has both a statutory and a constitutional component, and it concerns both where litigation starts and where it ends.4

Fn 4 In dicta, the Supreme Court implied narrower bounds for the domesticrelations exception for types of federal cases not relevant here. Ankenbrandt v. Richards, 504 U.S. 689, 704 (1992) (diversity jurisdiction) (discussed infra); cf.
Marshall v. Marshall, 547 U.S. 293, 306-09 (2006) (probate and bankruptcy).

The statutory and constitutional questions pose the same etymological issue, but the statutory one focuses not on the federal judicial power’s outer limits but on the limits that Congress intended when Congress created the lower federal courts. Of course, the two are not the same thing. The “Article III … power to hear cases ‘arising under’ federal statutes… is not self-executing,” and Congress need not provide the lower federal courts with the full scope of judicial power that Article III makes available to the Supreme Court. Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 807 (1986). The statutory issue is whether Congress included this type of domestic-relations issue when it created the federal courts and established their jurisdiction over federal-question and civil-rights cases in law and equity. The constitutional question is whether Article III’s grant of jurisdiction over cases in law and equity encompasses issues of domestic relations. As explained below, this case presents only the statutory question of where litigation starts – e.g., state or federal court – without addressing whether the Supreme Court has constitutional power to hear such cases under Article III when a case arises from state courts. Before the Fourteenth Amendment’s ratification, the Supreme Court and the states recognized the distinct jurisdictions of a “court of admiralty, chancery, ecclesiastical court, or court of common law.” Williamson v. Berry, 49 U.S. (8 How.) 495, 540-41 (1850); Gaines v. Chew, 43 U.S. (2 How.) 619, 645 (1844) (“equity will not set aside a will for fraud [because] where personal estate is disposed of by a fraudulent will, relief may be had in the ecclesiastical court; and at law, on a devise of real property”); Crump v. Morgan, 38 N.C. 91, 98-99 (N.C. 1843) (recognizing “the canon and civil laws” of English “Ecclesiastical Courts … and as parts of the common law, which by custom are adopted and used in peculiar jurisdictions”); see also Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383 (1930) (allowing state-court divorce suit against foreign consul, notwithstanding exclusive federal jurisdiction over such suits generally, based on the domestic-relations exception under Burrus and Barber). ...

Constitutionally, there is a question as to the scope of the judicial power conveyed to federal courts (including the Supreme Court) by Article III:

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; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction[.]

U.S. CONST. art. III, §2 (emphasis added). The uncertainty lies in the term of art “cases in law and equity,” which did not include pure marriage-rights issues when the states ratified the Constitution.

In writing about “delineating the boundary between the federal and State jurisdictions,” Madison demonstrated that the Framers were well aware of the various jurisdictions in English law:

The precise extent of the common law, and the statute law, the maritime law, the ecclesiastical law, the law of corporations, and other local laws and customs, remains still to be clearly and finally established in Great Britain, where accuracy in such subjects has been more industriously pursued than in any other part of the world. The jurisdiction of her several courts, general and local, of law, of equity, of admiralty, etc., is not less a source of frequent and intricate discussions, sufficiently denoting the indeterminate limits by which they are respectively circumscribed.

THE FEDERALIST PAPERS, No. 37, at 224-25 (C. Rossiter ed. 1961). Indeed, more contemporaneously with the applicable legal doctrines, courts had no difficulty in recognizing that domestic-relations cases are not cases in law or equity. Williamson, 49 U.S. (8 How.) at 540-541; Gaines, 43 U.S. (2 How.) at 645; Burrus, 136 U.S. at 593; Barber, 62 U.S. (21 How.) at 584. Significantly, Ankenbrandt, Marshall, and Obergefell do not hold to the contrary.5

Like Barber, Ankenbrandt concerned a tort suit, which would constitute a suit at law or equity, 504 U.S. at 704; as such, the Court’s declining to research English legal history to understand the terms of Article III was appropriate because the case did not turn on the distinctions between law courts, chancery courts, and ecclesiastical courts. Any statements on the contours of the domestic-relations exception in Ankenbrandt are dicta for the same reason that they were dicta in Barber: a tort suit, as a suit at law or equity, did not present the question of jurisdiction over suits not in equity and not at law.

Similarly, Marshall was resolved on a perceived judicial limitation under a statutory interpretation not based on the distinction between law-equity courts versus ecclesiastical courts appearing on the face of a statute, 547 U.S. at 308-09; see also note 5, supra; Markham v. Allen, 326 U.S. 490, 494 (1946) (outlining federal-court jurisdiction with respect to probate matters). The probate exception at issue in Marshall is solely a judicial construct, unlike the law-equity court versus ecclesiastical court distinction based on founding-era jurisprudence and appearing on the face of Article III and the original statutory grants of subject-matter jurisdiction relevant here.

Of course, if Article III’s reference to cases at law and equity meant all cases, the Framers would have written Article III to say all cases. Put differently, the canon “expressio unius est exclusio alterius … has force … when the items expressed are members of an associated group or series, justifying the inference that items not mentioned were excluded by deliberate choice, not inadvertence.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003). Here, Article III lists all relevant forms of English jurisdiction except ecclesiastical courts, which suggests that the Framers intended to reserve that non-federal form of jurisdiction solely to the states.

Of course the US Supreme Court just ignored all of this when it decided to give gays dignity by mandating same-sex marriage. So they could ignore it to say that dads have some parental rights, if they wanted to. They do not.

This is all above my pay grade. Larry Joseph is one of the few lawyers who actually understands the issue. It all seems ridiculous to me, since Justice Kennedy did not mention any of this. But if you sue in federal court to see your kids, some judge who probably does not even understand this history will use the domestic relations exception to get rid of you.