Federal questions and the domestic-relations exception. (2024)

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C. The Precedential Argument

A final argument in favor of applying the domestic-relationsexception to federal questions is that despite often being characterizedas a limit on diversity jurisdiction, (180) the exception was in factestablished early on by cases involving federal questions. (181) Thisfact tends to undermine the claim that the exception is cabined to thecontext of diversity jurisdiction.

Of the earliest domestic-relations exception cases, two--In reBurrus (182) and Perrine (183)--arose pursuant to federal habeasjurisdiction, while two more--Simms (184) and De la Rama (185)--arosepursuant to jurisdiction granted by federal statute over territorialcourts. None of these four early cases involved conflicts betweendiverse parties. Another early domestic-relations case, Popovici, (186)came to the Supreme Court from the Ohio Supreme Court but involvedfederal-question jurisdiction over "all Cases affectingAmbassadors, other public Ministers and Consuls." (187) In fact,only one early domestic-relations exception case, Barber, (188) arosepursuant to federal diversity jurisdiction.

Later Supreme Court cases also seem to apply the exception tofederal questions. Newdow insinuated that the domestic-relationsexception applied even in cases raising "weighty question[s] offederal constitutional law." (189) Even Baker v. Nelson, (190) the1972 summary disposition whose precedential value was extensivelydebated in the lead-up to Obergefell, (191) was arguably "basedupon the domestic relations exception." (192) Baker involved anappeal from a judgment by the Minnesota Supreme Court upholding a ban onsame-sex marriage. (193) The state argued that "[i]t is wellestablished that each state under its own power of sovereignty has thepower ... [and] duty to carefully regulate its citizens in theirdomestic relationships." (194) It referenced the"landmark" (195) case of Williams v. North Carolina, quotingits language concerning a "most important aspect of our federalismwhereby 'the domestic relations of husband and wife ... werematters reserved to the States' ... and do not belong to the UnitedStates." (196) Baker dismissed the appeal "for want of asubstantial federal question." (197) There is thus "a powerfulargument ... that the Court dismissed the appeal" on jurisdictionalgrounds "based upon the domestic relations exception." (198)

From its inception through the twenty-first century, the SupremeCourt has applied the domestic-relations exception in federal-questioncases. Those who claim that it applies only to diversity jurisdictionmust account for this longstanding practice.

All of these arguments seem to present a colorable case forapplying the domestic-relations exception in federal-question cases.However, as the next Part establishes, they individually andcollectively fail. They rely on dubious historical claims, ignore soundprinciples of statutory interpretation, and disregard the text andpurpose of Article III.


The domestic-relations exception does not and cannot, as a matterof positive law, limit federal-question jurisdiction. Article III andsound principles of statutory interpretation obligate federal courts toadjudicate federal questions, whether or not they involvedomestic-relations issues. First, as a matter of constitutionalstructure, the federal courts must have jurisdiction over allfederal-question cases. Additional, related structural considerationscompel the conclusion that the Supreme Court itself must have authorityover such cases, regardless of whether lower federal courts do as well.Second, as a matter of statutory interpretation, thefederal-jurisdiction statutes provide that federal jurisdiction extendsto federal questions regardless of whether they involve domesticrelations. Finally, invoking the values of federalism and parity betweenstate and federal courts is insufficient to justify expanding thedomestic-relations exception to federal questions, because lettingfederal courts decide federal questions that involve domestic relationsbetter serves those values than leaving such cases entirely to the statecourts.

A. The Constitutional Argument: Applying the Exception to FederalQuestions Would Violate Article III

Article III extends federal jurisdiction to all federal questions,including those initially brought in state courts. In addition, itrequires that the U.S. Supreme Court have jurisdiction to review allcases heard in lower federal courts. When state courts hear federalquestions, appeal must lie in federal court--specifically, in theSupreme Court. The domestic-relations exception cannot rob federalcourts 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 courtsjurisdiction over federal-question cases that involve domesticrelations. The Constitution gives the federal judiciary power over allfederal-question cases, irrespective of whether they touch on domesticrelations. Article III commands that federal judicial power "shallextend to all Cases, in Law and Equity, arising under this Constitution,the Laws of the United States, and Treaties made, or which shall bemade, under their Authority. (199) Any constitutional challenge to a lawnecessarily "aris[es] under [the] Constitution"; any challengebased on a federal statutory right necessarily "aris[es] under ...the Laws of the United States." (200) The federal courts thus havejurisdiction over such challenges involving domestic relations so longas such domestic-relations cases can be characterized as cases in"law" or "equity." Can they? To determine whether acase arises in law or equity, courts usually look to the nature of theremedy sought. (201) A party challenging a statute's lawfulnesswill usually seek to enjoin its enforcement. The injunction is anequitable remedy. Suits seeking to enjoin a law's enforcement onconstitutional or federal-law grounds are therefore cases in equity,subject to federal jurisdiction.

As Section II.A explained, the argument that domestic-relationscases fall beyond the scope of Article III jurisdiction rests on theclaim that English law and equity courts could not heardomestic-relations cases because the ecclesiastical courts had exclusivejurisdiction over them. This account, however, oversimplifies thejurisdictional complexities of English domestic-relations law anddisregards colonial practice. Article III extends federal jurisdictionto all cases in "Law and Equity." At the time of and leadingup to the Constitution's ratification, English equity courtsregularly heard cases raising family law issues. (202) Notwithstandingthe In re Burrus dictum, considerably less than "[t]he wholesubject of the domestic relations" (203) belonged to the Englishecclesiastical courts. This suggests that some early domestic-relationsprecedents in federal-question cases discussed in Section II.C, such asPopovici (204) and Justice Daniel's dissent in Barberj (205) areentitled to little weight because they relied on erroneous history.(206)

Whatever the relevance of English practice to the scope of theexception may be, one should also look to the American colonialexperience, which is a more appropriate source of the original publicmeaning of the jurisdictional terms in Article III. Importantly,ordinary American colonial courts regularly exercised jurisdiction overdomestic-relations matters. Even if Justice Daniel were correct that inEngland, cases involving marriage, divorce, and alimony belongedexclusively to the ecclesiastical courts, (207) the early Americancolonies did not have ecclesiastical courts, so the ordinary coloniallaw and equity courts absorbed that jurisdiction. (208) Because therewas no American ecclesiastical jurisdiction, American equityjurisdiction absorbed ecclesiastical cases. Crucially, jurisdictionallabels generally meant little in the American colonies. Colonial courtswere regularly given names that did not correspond to the function ofsimilarly named courts in England. (209) Because ordinary Americancourts exercised jurisdiction over domestic-relations cases,Founding-era Americans likely would have understood the Article IIIphrase "Law and Equity" to encompass all of the jurisdictionthat ordinary American courts exercised at the time, includingjurisdiction over domestic relations. A more restrictive construction ofthose terms would also be inconsistent with the colonial legal culturefrom which the Constitution itself emerged. Consider, for example, thatOliver Ellsworth, the Chief Justice of Connecticut, whose colonialcourts granted divorces, (210) was a main drafter of thediversity-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-lawdisputes 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 andEquity," (212) to which federal jurisdiction extends, regardless ofwhether it raises domestic-relations issues. If the exception'shistoricity depends on the claim that the Founding-era Americansbelieved domestic relations to belong exclusively to the Englishecclesiastical courts, it rests on shaky ground. (213)

2. Appeals from State Court Federal Question Judgments Must AlwaysLie in Federal Court

The existence of federal jurisdiction over all federal questions,including those that involve domestic relations, is also evident inArticle III's elegant jurisdictional framework. Article III usesbroad, obligatory language, which strongly suggests that the federaljudiciary must have jurisdiction over federal-question cases. As AkhilReed Amar has famously argued, the use of the word "all"before heads of jurisdiction over federal-question cases, and theabsence of "all" before heads of jurisdiction over diversitycases, makes for a striking contrast, strongly indicating thatfederal-question jurisdiction is mandatory and diversity jurisdiction ispermissive. (214) As Justice Story declared in Martin v. Hunter'sLessee, an early Supreme Court case concerning the scope of federaljurisdiction, "It is hardly to be presumed that the variation inthe language could have been accidental." (215) Indeed, recordsfrom the Constitutional

Convention confirm that the Framers used and omitted the word"all" purposefully when writing Article III to createcategories of obligatory and permissive jurisdiction. (216) As theyrepeatedly revised Article III's text, the judiciary's"two-tiered" structure of obligatory and permissivejurisdiction came into greater focus. (217) The resulting text ofArticle III indicates that federal courts must have power to hearfederal-question cases, while Congress may limit the scope of theirjurisdiction over diversity cases through the "exceptions andregulations" clause. (218)

This all suggests that even if Congress or the courts could carveout a domestic-relations exception to diversity jurisdiction, theConstitution forbids such an exception to the mandatory federal-questionjurisdiction it vests in the federal courts. That conclusion isbuttressed by the observation that the word "all" mirrorsanother obligatory phrase (219) found near the beginning of Article III,Section 2: "The judicial Power shall extend...." (220) AsRobert N. Clinton has observed, the Framers regularly used the word"shall" in an obligatory fashion. (221) Altogether, as Martinrecognized, "The language of ... [A]rticle [III] throughout ismanifestly designed to be mandatory upon the legislature. Its obligatoryforce is so imperative that congress could not, without a violation ofits duty, have refused to carry it into operation." (222)

The Framers created this two-tiered structure because they fearedthat without a federal forum to resolve federal questions, state judgeswould undermine the Constitution by refusing to give it effect. (223)The federal jurisdictional framework was designed so that federalquestions need not be settled in the final instance by state courts;review would always lie in federal tribunals. (224) In contrast, theFramers did not find it especially important to vest federal courts withdiversity jurisdiction, which presented state judges few opportunitiesto undermine the Constitution and only did so ambivalently. (225)

As Amar argues, the Constitution has four structural features thatmake federal judges superior to their state counterparts to adjudicatefederal-question disputes. First, because federal judges have lifetenure during good behavior and cannot see their salaries diminished,they possess a degree of political independence and impartiality thatstate judges may lack. (226) Second, federal judges are chosen by thePresident and confirmed by the Senate, while state judges are not, (227)a process "designed to promote a high level of prestige andcompetence in the federal judiciary that could not be guaranteed at thestate level." (228) Third, federal judges are "officers of thenation ... hold[ing] national commissions," "speak[ing] in thename of the nation," and "paid out of the nationaltreasury." (229) Finally, the Constitution makes federal judgesaccountable to the entire nation by providing a mechanism for theirimpeachment, but it creates no corresponding impeachment process forstate judges. (230)

Two early Supreme Court cases, authored by two of the mostcelebrated constitutional expositors in American history, confirm thatthe Constitution was designed to ensure that state courts would not havethe last word on federal questions. First, Martin, discussed above, heldthat the Supreme Court had the power to review federal-questionjudgments by state courts. (231) Justice Story explained that thisprocess ensures that federal courts, not state courts, would in thefinal instance get to resolve disputes over the meaning of federal law:even though "the judges of the state courts are, and always willbe, of as much learning, integrity, and wisdom, as those of the courtsof the United States," (232) he said, the Constitution nonethelessreflects the assumption "that state attachments, state prejudices,state jealousies, and state interests, might sometimes obstruct, orcontrol, or be supposed to obstruct or control, the regularadministration of justice." (233) Later, in Cohens v. Virginia, theCourt rejected the contention that the Supreme Court lacked jurisdictionover criminal cases or cases in which a state was a party. (234) Writingfor the Court, Chief Justice Marshall stressed that state courts couldnot always be trusted to adjudicate impartially disputes arising underfederal law, free of "the prejudices by which the legislatures andpeople are influenced." (235) After all, Marshall reasoned,"[i]n many States the judges are dependent for office and forsalary on the will of the legislature," whereas the FederalConstitution 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 casesinvolving domestic relations beyond the scope of federal jurisdictionwould vest some of the "judicial Power of the United States"(237) in the state judiciaries, violating the clear text of the ArticleIII Vesting Clause. One implication is that the Supreme Court itselfmust have jurisdiction over all cases that raise federal questions,regardless of whether they involve domestic relations. As StevenCalabresi and Gary Lawson have argued, "Article III requires thatthe federal judiciary be able to exercise all of the judicial power ofthe United States that is vested by the Constitution and that theSupreme Court must have the final judicial word in all cases ... thatraise federal issues." (238)

Calabresi and Lawson derive this conclusion from theconstitutionally evident hierarchical relationship between one"Supreme" Court and other federal courts that are"inferior" to it. (239) According to them, the Supreme Courtmust have either original or appellate jurisdiction over any case in thelower federal courts, or else it would not be truly "Supreme"over them. (240) Article III's hierarchical relationship betweenthe "supreme Court" and "inferior Courts" (241) thusparallels Article II's command chain between "aPresident" (242) and "inferior [executive] Officers."(243) Edmond v. United States recognized as a general matter that whatmakes an executive officer "inferior" within the meaning ofthe Appointments Clause (244) is that she or he has a"superior" other than the President himself. (245) If this istrue of inferior officers, it is also true of inferior courts--both musthave supervisors who are "Supreme" over them, who haveauthority to oversee their acts undertaken in exercise of constitutionalauthority. (246)

Though Calabresi and Lawson speak only to the Supreme Court'srelationship with inferior federal courts, their reasoning extends toits relationship with state courts hearing federal-question cases, whichis 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 thedomestic-relations exception applies to federal questions, it puts somequantum of "[t]he judicial Power" (248) in state courts beyondthe Supreme Court's supervision. This would be analogous to vestingsome of "[t]he executive Power" (249) in state officials whoare not subject to presidential control--an arrangement that the SupremeCourt in Printz v. United States declared unconstitutional. (250)

Article III gives the judiciary a unitary structure similar toArticle II's "unitary executive." (251) It vests"[t]he judicial Power" in "one supreme Court, and in suchinferior Courts as the Congress may from time to time ordain andestablish." (252) To use Justice Scalia's phrasing, "thisdoes not mean some of' the judicial power, "but all of it.(253) Construing the exception to limit federal jurisdiction overfederal questions would violate Article III's text, structure,intent, and purpose. Just as the executive power cannot be vested instate officers not subject to presidential supervision, (254) nor canthe judicial power be vested in state courts unless they are subject tothe Supreme Court's supervision when exercising it. If theexception were extended to federal questions, the judiciary's"unity would be shattered," (255) and important questions offederal law would be committed exclusively to state courts, preciselythose bodies that the Framers felt ought not have the final say on suchmatters. A faithful, holistic reading of Article III would avoid suchperverse results.

3. The Domestic-Relations Exception as an Abstention Doctrine

As noted in Section I.B, some courts that apply thedomestic-relations exception in federal-question cases characterize itnot as a mandatory jurisdictional bar, but as a prudential abstentiondoctrine. (256) Under abstention principles, federal courts decline toadjudicate certain claims when doing so would undermine federalismvalues. (257) Abstention doctrines are rooted in prudential principlesrather than claims that federal courts inherently lack power to hearcertain cases. (258) Moreover, they usually limit federal courts'power to hear certain disputes only for a limited duration. (259) Incontrast, a doctrine barring federal courts from decidingdomestic-relations cases would seemingly amount to a blanket, perpetualbar to adjudicating them. Were the Supreme Court to hold thedomestic-relations exception inapplicable to federal questions, couldfederal courts revive it through abstention, thereby obviating thedecision's practical significance?

The constitutionality of a domestic relations abstention doctrinedepends on how broadly it is formulated. To preserve states'autonomy in defining family policy and leave resolution of family-lawissues to state courts, (260) such a doctrine must give state courtsleeway to decide federal questions involving domestic relationsdifferently than would federal courts hearing identical cases. Forexample, if a federal court would strike down a paternity statute asviolative of the Due Process Clause, (261) a domestic relationsabstention doctrine must permit a state court to uphold it. The doctrinewould hardly promote federalism if it required state courts to ruleexactly as federal courts would. To have teeth, state courts must befree to disregard how federal courts would handle domestic-relationscases, even those raising federal questions, just as they are not boundby federal court pronouncements of state-law questions made pursuant todiversity jurisdiction. (262)

At stake in every federal-question case is a right or interest thatfederal law protects. (263) When a court reaches the wrong result, itwrongly, if inadvertently, deprives the losing party of that right orinterest. For reasons discussed in Section III.A.2, federal judges aregenerally likelier than state judges to safeguard rights and intereststhat federal law protects. (264) They enjoy more judicial independence,have a national pedigree, speak on the entire nation's behalf, andare accountable, via impeachment, to the nation as a whole rather thanto any one state. (265) By cutting off access to a federal forum, (266)a domestic relations abstention doctrine would virtually ensure thatdeprivations of such rights and interests occur more frequently. Theonly instances in which this concern would not arise are cases in whichfederal and state courts would reach identical outcomes on federalquestions. In such cases, the exception serves little purpose anyway; itcannot be justified on the grounds that it relies on state courts'unique expertise or preserves states' autonomy to develop theirfamily law in ways that federal courts would not.

The constitutionality of an abstention-doctrine formulation of thedomestic-relations exception thus depends on whether the doctrinepreserves a role for federal courts as the final expositors of themeaning of federal law. At a minimum, such a doctrine could not divestthe Supreme Court of the power to review federal questions; as explainedearlier, Article III requires that federal courts have the last word onquestions of federal law subject to Supreme Court review. Merelyallowing losing parties in state courts to seek a writ of certiorariwould also not suffice, because grants of certiorari are rare, anddenials do not reflect judgments on the merits. (267) Thus,federal-court review would be unavailable in the vast majority ofdomestic relations federal question cases.

A constitutionally adequate domestic relations abstention doctrinecould take one of at least three forms. First, lower federal courtscould abstain entirely from hearing federal questions involving domesticrelations if the Supreme Court exercised mandatory review over them. Notonly would this approach likely require amending the Supreme Court CaseSelections Act of 1988, which eliminated appeals as of right from statecourts to the U.S. Supreme Court, (268) but it would also be veryunwise. The purpose of the 1988 Act, as well as the earlier JudiciaryAct of 1925, (269) was to give the Court greater discretion and controlover its docket. By 1925, the Court's docket had become"overwhelmed" by congestion that "threatened theCourt's ability effectively to carry out its functions." (270)By 1988, the docket had once again reached the point where "theburdens imposed on the Justices [had] become too great for thecountry's good." (271) Giving every litigant in a domesticrelations federal question case a right of appeal to the Supreme Courtwould deluge its docket with cases that are unworthy of its attention.Time constraints would inevitably require the Court to resolve most ofthese cases through summary dispositions, (272) with little to nogenuine deliberative consideration.

Second, lower federal courts could allow state courts to exerciseexclusive jurisdiction over all domestic-relations cases in the firstinstance, but take appeals from them once state proceedings haveconcluded. This approach would also require statutory change, asCongress has not given federal or appellate courts jurisdiction to hearappeals from state-court decisions. (273) However, it is consistent withexisting abstention principles that prevent federal courts fromadjudicating specific types of cases only until certain state-courtproceedings have concluded, not beforehand. (274)

Finally, a domestic relations abstention doctrine could relegatefederal courts to an even narrower role, adjudicating federal questionsinvolving domestic-relations issues only on certification from statecourts. On litigants' motion, state courts could certify federalquestions for federal courts to resolve before entering judgment orwhile state appeals are still pending. Under this approach, federalreview would be unavailable once the state court has entered judgmentand no state-court appeals are pending. A state-court litigant'sfailure to seek certification of a federal question to a federal courtmight be deemed a waiver of her or his right to federal-court review.Limiting federal judicial review of federal questions involving domesticrelations to the posture of resolving certified questions may not bewise, but it would probably satisfy the bare threshold forconstitutionality. So long as an abstention-doctrine formulation of thedomestic-relations exception preserved a meaningful role for federalcourts to decide federal questions, it would probably passconstitutional muster.

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

The modern canonical rationale for the domestic-relationsexception's provenance, articulated in Ankenbrandt v. Richards,cannot justify applying the exception to federal questions. Ankenbrandtheld that regardless of whether the exception inhered in the earlyjurisdictional statutes, federal courts widely recognized its existenceby 1948, when Congress revised them. (275) The Court explained thatCongress, believing that the exception already obtained and intending nochange in the status quo, implicitly codified it in the revisedstatutes. (276)

But even if one accepts Ankenbrandt's account as accurate,sound principles of statutory interpretation--indeed, the sameprinciples that the Supreme Court invoked in Ankenbrandt--suggest thatCongress has eliminated any statutory domestic-relations exception itmight have created with respect to federal questions. To see why, onemust look to subsequent legislative history; since amending thejurisdictional statutes in 1948, Congress has continued to revise them,presumably with the knowledge that federal courts regularly hear federalquestions involving domestic-relations matters. (277) As a matter ofstatutory interpretation, federal courts presume that Congress is awareof how courts interpret its statutes, and that congressional silence inthe face of judicial constructions constitutes ratification, at leastinsofar as Congress later amends the statute in question. (278) Ifcongressional awareness of a particular federal court practice, coupledwith a tacit affirmation of the status quo, can constitute acquiescencein that practice even as Congress formally remains silent on the matter,surely it can suffice to repeal the domestic-relations exception just aswell as create it.

According to a leading treatise on statutory interpretation,"Where a statute has received a contemporaneous and practicalinterpretation, and is then reenacted as interpreted, the interpretationcarries great weight and courts presume it is correct." (279) Thetreatise also says that "[p]rior judicial constructions havespecial force, and are prima facie evidence of legislative intent."(280) Two examples are illustrative. In 1922, the Court held that theSherman Antitrust Act does not apply to Major League Baseball. (281)Fifty years later, it reaffirmed the baseball exemption on the groundsthat "Congress, by its positive inaction ... far beyond mereinference and implication, has clearly evinced a desire not todisapprove [it] legislatively." (282) When the FDA sought toregulate tobacco products after long disclaiming authority to do so, theCourt held that "Congress' tobacco-specific statutes haveeffectively ratified the FDA's long-held position that it lacksjurisdiction under the FDCA to regulate tobacco products." (283)Though "[a]t the time a statute is enacted, it may have a range ofplausible meanings," the Court asserted that "subsequent actscan shape or focus those meanings" over time. (284)

If in 1948 the federal-question statute contained an implicitdomestic-relations exception to federal-question jurisdiction, Congresshas subsequently eliminated it. For decades, federal courts haveregularly heard federal-question cases raised in core domestic-relationscontexts, 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 lawincludes both cases that originated in state courts before making theirway to the U.S. Supreme Court (293) and cases that were initially filedin federal court. (294) The federal courts that presided over theseimportant cases all seemingly took for granted that thedomestic-relations exception did not apply.

As Congress revised the jurisdictional statutes over time, itsurely knew that federal courts regularly heard federal questionsinvolving domestic relations, as this case law spans some of the mostconsequential constitutional decisions ever. These decisions includeseminal substantive due process cases. Boddie v. Connecticut held thatstates cannot condition an indigent person's right to obtain adivorce upon the payment of a fee. (295) Zablocki v. Redhail held thatstates cannot prohibit noncustodial parents who are in arrears on childsupport from marrying. (296) Michael H. v. Gerald D. found that therelationship between a natural father and his child "born into awoman's existing marriage with another man" (297) is not"a protected family unit ... [or otherwise] accorded specialprotection." (298) Troxel v. Granville said that a statecourt's broad application of a nonparental visitation statuteinfringed on the basic right of parents to make child-rearing decisions.(299)

These cases also include some of the most importantequal-protection cases in history. Trimble v. Gordon struck down anintestate succession law that discriminated against illegitimatechildren. (300) Orr v. Orr invalidated alimony statutes that imposedduties on husbands but not on wives. (301) Palmore v. Sidoti nullified achild-custody award to a father made on the grounds that themother's choice to enter a relationship with a black man wouldcause the child to suffer social stigma; (302) noting that"[p]rivate biases may be outside the reach of the law," theCourt 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 notalone sufficient to prove that the domestic-relations exception does notapply to federal-question cases. The fact that a Supreme Court casesuffers from a jurisdictional defect does not mean that it is not goodlaw once decided. However, Congress has never indicated that it believesthese cases to be jurisdictionally defective. Under Ankenbrandt'sown reasoning, therefore, we can presume that Congress accepted andimplicitly ratified the jurisdictional assumption undergirding thesedecisions--that federal courts may adjudicate federal questions raisingdomestic-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 uponreenactment." (304) Congress amended the federal questionjurisdiction statute three times after 1948, most recently in 1980.(305) During this period, federal courts interpreted that statute toconfer jurisdiction over federal questions raising domestic-relationsissues. Congress knew of this construction, but never expresseddisapproval by doing what one would expect it to do if it felt thatfederal courts were exceeding their jurisdictional boundaries: make theexception statutorily explicit. Rather, it continued to amend thefederal question jurisdiction statute periodically. Based onAnkenbrandt's reasoning, then, we can presume that Congressbelieved that the proper scope of federal jurisdiction encompassedfederal questions involving domestic-relations matters.

None of this is to suggest that "congressional inaction"regarding the exception "indicates specific congressionalintent." (306) Congress's periodic amendments to thefederal-question statute were affirmative legislative actions, enactedvia bicameralism and presentment. (307) Nor is it relevant that Congressmay not have realized it was eliminating the exception. Congress,observing that federal courts regularly adjudicated federal questionsinvolving domestic relations, may have concluded that the exception didnot presently reach federal questions in the first place. In eliminatingthe domestic-relations exception to federal-question jurisdiction,Congress may have thought it was simply affirming the status quo, ratherthan effecting any change in law. Indeed, under Ankenbrandt'slogic, this is just what happened in 1948, when Congress first createdthe exception even though it believed itself to be merely preserving apreexisting domestic-relations exception. (308)

Some courts treat "Congress' failure explicitly to rejectthe [exception] as congressional acquiescence in the domestic relationsexception." (309) For example, the Second Circuit concluded that"[m]ore than a century has elapsed since the Barber dictum withoutany intimation of Congressional dissatisfaction. It is beyond the realmof reasonable belief that, in these days of congested dockets, Congresswould wish the federal courts to seek to regain territory...,"(310) However, according to Ankenbrandt, Congress created the exceptiononly by implication. (311) Under that reasoning, Congress may repeal theexception implicitly as well.

Under Ankenbrandt's logic, Congress periodically amended thefederal question jurisdiction statute since 1948 knowing that federalcourts regularly adjudicated federal questions raisingdomestic-relations issues, yet never manifesting any disapproval. Thereasonable conclusion to draw from this is that as Congress revised thestatute, it implicitly acquiesced in this practice.

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

Finally, permitting federal courts to hear federal-question casesthat involve domestic relations better serves the values of federalismand state-federal court parity than giving state courts exclusivejurisdiction over such cases. At its core, the domestic-relationsexception is all about federalism; it advances a claim regarding thedeference due to state courts in an area that is at the core of theirconstitutional powers. If "the Constitution of the United Statesconfers no power whatever upon the government of the United States toregulate marriage in the States, or its dissolution," (312) thenperhaps applying the exception to federal questions prevents thefederalization of power over a subject that the Constitution exclusivelycommits to the states while simultaneously promoting respect for therole of the state courts as faithful guarantors of constitutionalrights, just like their federal counterparts.

There are several objections to these parity and federalism-baseddefenses of the domestic-relations exception. Consider four argumentsadvanced in the exception's favor (313): (1) "the [superior]competence and expertise of state courts in settling familydisputes," (2) "the strong interests of the state in domesticrelations matters," (3) "the risk of inconsistent federal andstate court rulings in cases of continuing state courtjurisdiction," and (4) "congested federal dockets." Theserationales may make sense in the diversity context, but have littleforce in genuine federal-question cases that merely happen to"occur[] in a domestic setting." (314) State courts haveneither special competence to decide matters of federal law nor specialinterest in the resolution of federal questions. Meanwhile, the SupremeCourt enhances (rather than undermines) judicial uniformity when itsettles contested federal questions by creating legal rules andstandards for the entire nation. Docket congestion, always a problem forfederal courts, is a poor excuse for stripping federal jurisdiction overcases raising significant problems of federal law. (315) Overall,"the prudential concerns underlying" the domestic-relationsexception have little relevance in the federal-question context and"are completely absent" in constitutional cases, at leastinsofar as the court need not "exercise jurisdiction over orresolve any of those state law matters within the scope of the domesticrelations exception." (316)

One could go so far as to call parity "a dangerous myth,"as Burt Neuborne does, which "provides a pretext for funnelingfederal constitutional decisionmaking into state courts preciselybecause they are less likely to be receptive to vigorous enforcement offederal constitutional doctrine." (317) The parity rationale, hesuggests, would diminish "the capacity of individuals to mountsuccessful challenges to [government] decisions." (318)

The parity rationale also places no coherent limit onCongress's power to curtail federal jurisdiction. According toHart, Jr., Congress may abstain from creating inferior federal courtsentirely (319) and limit the Supreme Court's appellate jurisdictionthrough the Exceptions and Regulations Clause. (320) Apparently"troubled by the breadth of this power," (321) he suggests ahopelessly indeterminate limiting principle: "the exceptions mustnot be such as will destroy the essential role of the Supreme Court inthe 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 inan abstract, free-floating notion of federalism at odds with thespecifics found in the Constitution's actual text. It"sidestep[s] the requirement that the judicial power shall bevested in federal courts and shall extend to all cases arising under theConstitution, laws and treaties of the United States." (323) Paritymight be an attractive feature for a constitutional system to have, butthe parity rationale ignores important textual features of theConstitution that we actually do have.

Most fundamentally, if parity is simply the recognition that"state and federal courts are functionally interchangeable forumslikely to provide equivalent protection for federal constitutionalrights," (324) then it is not in tension with allowing federalcourts to exercise jurisdiction over all federal questions. While itjustifies allowing state courts to hear federal questions, it does notjustify allowing them to be the only courts that may do so. Allowingboth federal and state courts to hear federal questions better respectstheir equal "constitutional obligation to safeguard personalliberties and to uphold federal law" (325) than giving state courtsexclusive jurisdiction over such cases, which suggests state courtsuperiority and federal court inferiority with respect to federalquestions.

There is also good reason to believe that "the sovereigninterests of the States and the Federal Government" may not be"coequal." (326) Our Constitution creates "a federalrepublic, conceived on the principle of a supreme federal power andconstituted first and foremost of citizens, not of sovereignStates." (327) The Supremacy Clause, (328) without which JamesMadison felt the Constitution "would have been evidently andradically defective," (329) makes this clear. Even if federal andstate governments are equal in the deference due to them, thedomestic-relations exception, if understood to apply to federalquestions, distorts the proper character of federalism in ourconstitutional system, one "adopted by the Framers of theConstitution and ratified by the original States." (330) Theexception, so understood, transforms this system from a device that"secures to citizens the liberties that derive from the diffusionof 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 thefederal courts." (332) It is not about state primacy over thefederal government; rather, it is about respecting the proper roles ofboth. For this reason, "it cannot lightly be assumed that theinterests of federalism are fostered by a rule that impedes federalreview of federal constitutional claims." (333)


In the post-Obergefell world, federal courts will continueconfronting cases in which they must decide whether or not to apply thedomestic-relations exception to federal questions. If anything, now thatsame-sex marriage is the law of the land, the incidence of suchsituations is likely only to increase. Recently, the Supreme Courtreversed an order of the Alabama Supreme Court denying a lesbianwoman's right to adopt three children she had raised with herformer partner, a right that a Georgia court had granted the womanbefore the couple split up; the Court held that the Alabama court'sorder violated the Full Faith and Credit Clause. (334) As more gay andlesbian persons litigate claims under the U.S. Constitution or federalstatutes that implicate divorce, child-custody arrangements, alimonyawards, child support, and so on, federal courts will be presented withmore opportunities to decide whether or not the exception applies tofederal-question jurisdiction. These cases raise important questions ofconstitutional and federal statutory law, yet federal courts applyingthe domestic-relations exception to federal questions would refuse toadjudicate them. (335)

This Note advances a broad view of federal jurisdiction. It assertsthat, under Article III, federal courts--and especially the SupremeCourt-must have jurisdiction over all federal-question cases that arisein state or federal courts, including those arising indomestic-relations contexts. As a matter of ordinary statutoryconstruction and constitutional interpretation, the domestic-relationsexception does not and cannot bar federal courts from hearing cases thatraise federal questions. When federal courts are called upon to decideimportant problems of federal law, questions as profound as whether theConstitution tolerates state laws that prohibit same-sex marriage, theyshould not shy away from their duty "to say what the law is."(336)

(1.) 13E Charles Alan Wright et al., Federal Practice andProcedure: Jurisdiction and Related Matters [section] 3609 (3d ed.1998).

(2.) Barber v. Barber ex rel. Cronkhite, 62 U.S. (21 How.) 582, 584(1858).

(3.) In re Burrus, 136 U.S. 586, 593-94 (1890).

(4.) 13E WRIGHT ET AL., supra note 1, [section] 3609; see alsoinfra Section I.B.

(5.) 504 U.S. 689, 703 (1992). The Court would later emphasize thatAnkenbrandt took a narrow view of the exception: "While recognizingthe 'special proficiency developed by state tribunals ... inhandling issues that arise in the granting of [divorce, alimony, andchild custody] decrees,' we viewed federal courts as equallyequipped to deal with complaints alleging the commission of torts."Marshall v. Marshall, 547 U.S. 293, 308 (2006) (citation omitted).

(6.) 542 U.S. 1 (2004), abrogated by Lexmark Int'l v. StaticControl Components, Inc., 134 S. Ct. 1377, 1387-88 (2014).

(7.) Meredith Johnson Harbach, Is the Family a Federal Question?,66 Wash. & Lee L. Rev. 131, 143 (2009).

(8.) Neirdow, 542 U.S. at 13 (emphasis added).

(9.) See infra notes 285-303 and accompanying text.

(10.) See Rosenbrahn v. Daugaard, 61 F. Supp. 3d 862, 867-68(D.S.D. 2015); Condon v. Haley, 21 F. Supp. 3d 572, 584 (D.S.C. 2014);Marie v. Moser, 65 F. Supp. 3d 1175, 1195 (D. Kan. 2014); McGee v. Cole,993 F. Supp. 2d 639, 646 (S.D. W. Va. 2014). Appeals from thesedecisions did not generate further holdings or dicta on the subject.

(11.) Latta v. Otter, 779 F.3d 902, 913 (9th Cir. 2015)(O'Scannlain, J., dissenting from denial of rehearing en banc). Thedissenting judges observed that "[f]ederal judges have used variousdoctrinal mechanisms to refrain from intruding into the uncharted watersof state domestic relations law," including the domestic-relationsexception. Id. at 912-13. "Here," the dissenters said,"our court need not decide which of these many potential sources ofrestraint we should draw from." Id. at 913. This makes clear thatthey viewed the exception as applicable to the case. The majorityopinion did not hold that the exception did not apply--it simply did notaddress the issue.

(12.) See Brief Amicus Curiae of Eagle Forum Education & LegalDefense Fund, Inc., in Support of Neither Party at 9-11, DeBoer v.Snyder, 135 S. Ct. 2584 (2015) (No. 14-571), 2014 WL 6998392, at *9-11[hereinafter Eagle Forum Brief]; Brief of Amici Curiae Mae Kuykendall,David Upham & Michael Worley in Support of Neither Party and UrgingAffirmance on Question 1 at 2-3, Obergefell v. Hodges, 135 S. Ct. 2584(2015) (No. 14-556), 2015 WL 1004711, at *2-3 [hereinafter Kuykendall etal. Brief], Similarly, state amici repeatedly invoked thedomestic-relations exception to argue that federal courts should notexercise jurisdiction over the challenge to California'sProposition 8. See Brief Addressing the Merits of the States of Indiana,Virginia, Alabama, Alaska, Arizona, Colorado, Georgia, Idaho, Kansas,Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota,Texas, Utah, West Virginia & Wisconsin as Amici Curiae in Support ofthe Petitioners at 57, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013)(No. 12-144), 2013 WL 416198, at *5-7 [hereinafter Brief of States II];Brief of States of Indiana, Virginia, Louisiana, Michigan, Alabama,Alaska, Florida, Idaho, Nebraska, Pennsylvania, South Carolina, Utah& Wyoming as Amici Curiae in Support ofDefendants-Intervenors-Appellants Dennis Hollingsworth et al. and inSupport of Reversal at 3-6, Perry v. Brown, 671 F.3d 1052 (9th Cir.2012) (No. 10-16696), 2010 WL 4075743 [hereinafter Brief of States I].The Supreme Court ultimately decided that it lacked jurisdiction onstanding grounds, without reaching the domestic-relations question. SeeHollingsworth, 133 S. Ct. at 2668.

(13.) Emergency Application To Stay United States District CourtOrder, Wilson v. Condon, 135 S. Ct. 702 (2014) (No. 14A533) [hereinafterEmergency Application]; see also Condon v. Haley, 21 F. Supp. 3d 572(D.S.C. 2014).

(14.) See Emergency Application, supra note 13, at 6-18.

(15.) Wilson v. Condon, 135 S. Ct. 702 (2014). A denial of anapplication to stay is not a decision on the merits of the underlyinglegal claim.

(16.) Id. (Scalia & Thomas, JJ., dissenting).

(17.) 135 S. Ct. 2584 (2015).

(18.) A federal judge sitting in a circuit that has squarely heldthat the exception does apply to federal questions would be quitejustified in concluding that Obergefell did not speak to the issue. TheSupreme Court has admonished lower courts not to read its opinions liketea leaves and divine unspoken doctrinal developments and has emphasizedthat summary dispositions continue to be "controlling precedent,unless and until re-examined by [the] Court [itself]." Tully v.Griffin, Inc., 429 U.S. 68, 74 (1976); see also Hicks v. Miranda, 422U.S. 332, 345-46 (1975) (stating that "lower courts are bound bysummary decisions by this Court" until the Court says otherwise);Ohio ex rel. Eaton v. Price, 360 U.S. 246, 247 (1959) ("Votes toaffirm summarily, and to dismiss for want of a substantial federalquestion, it hardly needs comment, are votes on the merits of acase...."). The Court has held that lower courts must treat summarydispositions as merits decisions to "prevent [them] from coming toopposite conclusions on the precise issues presented and necessarilydecided by those actions." Mandel v. Bradley, 432 U.S. 173, 176(1977). Lower courts are bound by the Court's precedents even whenthey are in tension with newer ones, "leaving to [the Supreme]Court the prerogative of overruling its own decisions." Rodriguezde Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)("If a precedent of this Court has direct application in a case,yet appears to rest on reasons rejected in some other line of decisions,the Court of Appeals should follow the case which directlycontrols...."); see also Agostini v. Felton, 521 U.S. 203, 237(1997) ("We do not acknowledge, and we do not hold, that othercourts should conclude our more recent cases have, by implication,overruled an earlier precedent.").

For this reason, it is likely that at least some lower federalcourts continue to apply the domestic-relations exception to federalquestions. Consider that in DeBoer v. Snyder, 772 F.3d 388 (6th Cir.2014), the Sixth Circuit refused to strike down Michigan's ban onsame-sex marriage because the Supreme Court had rejected anindistinguishable challenge in a summary disposition that it issued in1972 and never overruled. See Baker v. Nelson, 409 U.S. 810 (1972). Indefending its decision, the Sixth Circuit argued that giving appellatecourts too free a hand to infer that the Supreme Court has stealthilyoverruled one of its summary dispositions "returns us to a world inwhich the lower courts may anticipatorily overrule all manner of SupremeCourt decisions based on counting-to-five predictions, perceivedtrajectories in the caselaw, or, worst of all, new appointments to theCourt." DeBoer, 772 F.3d at 401. For similar reasons, lower federaljudges may be reluctant to conclude that Obergefell held thedomestic-relations exception inapplicable to federal questions.

(19.) See, e.g., Ted Cruz, Constitutional Remedies to a LawlessSupreme Court, Nat'l Rev. (June 26, 2015, 5:39 PM),http://www.nationalreview.com/article/420409/ted-cruz-supreme-court-constitutional-amendment [http://perma.cc/LK9K-M9HC] (describingObergefell as "judicial activism" and "lawless");Press Release, Ken Paxton, Att'y Gen., Tex., Attorney GeneralPaxton: Religious Liberties of Texas Public Officials RemainConstitutionally Protected After Obergefell v. Hodges (June 28, 2015),http://www.texasattorneygeneral .gov/static/5144.html[http://perma.cc/R47V-N8GB] (describing Obergefell as a "lawlessruling").

(20.) See, e.g., Michael Ashley Stein, The Domestic RelationsException to Federal Jurisdiction: Rethinking an Unsettled FederalCourts Doctrine, 36 B.C. L. Rev. 669, 670 (1995) (noting the existenceof widespread disagreement over "the validity and scope of adomestic relations exception to either diversity or federal questionjurisdiction").

(21.) See, e.g., Emily J. Sack, The Domestic Relations Exception,Domestic Violence, and Equal Access to Federal Courts, 84 Wash. U. L.Rev. 1441, 1466-73 (2006); Barbara Freedman Wand, A Call for theRepudiation of the Domestic Relations Exception to Federal Jurisdiction,30 Vill. L. Rev. 307, 401 (1985); Mark Stephen Poker, Comment, AProposal for the Abolition of the Domestic Relations Exception, 71 MARQ.L. Rev. 141, 162-64 (1987).

(22.) See, e.g., Harbach, supra note 7, at 139; Sharon ElizabethRush, Domestic Relations Law: Federal Jurisdiction and State Sovereigntyin Perspective, 60 NOTRE Dame L. Rev. 1 (1984); Sack, supra note 21, at1490; Stein, supra note 20; Wand, supra note 21; Bonnie Moore, Comment,Federal Jurisdiction and the Domestic Relations Exception: A Search forParameters, 31 UCLA L. Rev. 843 (1984); Poker, supra note 21, at 165;Rebecca E. Swenson, Note, Application of the Federal AbstentionDoctrines to the Domestic Relations Exception to Federal DiversityJurisdiction, 1983 Duke L.J. 1095.

(23.) See, e.g., Sack, supra note 21, at 1480 ("[T]hehistorical rationale ... is open to serious question and [prior toAnkenbrandt] had not consistently been the basis for the Court'sprevious holdings in the area."); Poker, supra note 21, at 164("The domestic relations exception has dubious historicalorigins.").

(24.) See, e.g., Poker, supra note 21, at 159-62 (criticizingfederalism, separation-of-powers, statutory, and policy arguments infavor of the exception).

(25.) Steven G. Calabresi & Genna Sinel, The Gay Marriage Casesand Federal Jurisdiction: On Why the Domestic Relations Exception toFederal Jurisdiction Is Archaic and Should Be Overruled, 70 U. Miami L.Rev. (forthcoming 2016).

(26.) Id. (manuscript at 5-6).

(27.) Id. (manuscript at 38-43). Calabresi and Sinel argue that"Congress and the Supreme Court could and should abolish thedomestic relations exception to federal jurisdiction," but believethat until Congress does so, the exception applies to federal questions.Id. (manuscript at 55) (emphasis added).

It is worth noting that while Calabresi and Sinel's work isthe only comprehensive scholarly treatment of the domestic-relationsexception in the context of same-sex marriage, others have addressed theintersection of these two issues. See, e.g., William C. Duncan,Avoidance Strategy: Same-Sex Marriage Litigation and the Federal Courts,29 Campbell L. Rev. 29, 35 (2006); Harbach, supra note 7, at 158; NathanM. Brandenburg, Note, Preachers, Politicians, and Same-Sex Couples:Challenging Same-Sex Civil Unions and Implications on InterstateRecognition, 91 Iowa L. Rev. 319, 345 (2005); Michael McConnell, TheConstitution and Same-Sex Marriage, Wall St. J. (Mar. 21, 2013),http://www .wsj.com/articles/SB10001424127887324281004578354300151597848[http://perma.cc/9KLN -NUMV]; sources cited infra note 101.

(28.) 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;-to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-between a State and Citizens of another state,--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

U.S. CONST. art. III, [section] 2, cl. 1.

(29.) 28 U.S.C. [section] 1331 (2012) ("The district courtsshall have original jurisdiction of all civil actions arising under theConstitution, laws, or treaties of the United States.").

(30.) Barber v. Barber ex rel. Cronkhite, 62 U.S. (21 How.) 582,583-84 (1858).

(31.) Id. at 585.

(32.) Id. at 586.

(33.) Id. at 584.

(34.) Id.

(35.) Id. at 605 (Daniel, J., dissenting) ("[A]s thejurisdiction of the chancery in England does not extend to or embracethe subjects of divorce and alimony, and as the jurisdiction of thecourts of the United States in chancery is bounded by that of thechancery in England, all power or cognizance with respect to thosesubjects by the courts of the United States in chancery is equallyexcluded.").

(36.) Compare id. at 599-600 (majority opinion) (holding that"the court below has not committed error in sustaining itsjurisdiction over this cause, nor in the decree which it hasmade"), with id. at 600 (Daniel, J., dissenting) (disagreeing withthe majority on whether federal courts had power "to adjudicateupon a controversy and between parties such as are presented by therecord before us").

(37.) Ankenbrandt v. Richards, 504 U.S. 689, 699 (1992)("Because the Barber Court did not disagree with this reason foraccepting the jurisdictional limitation over the issuance of divorce andalimony decrees, it may be inferred fairly that the jurisdictionallimitation recognized by the Court rested on this statutory basis andthat the disagreement between the Court and the dissenters thus centeredonly on the extent of the limitation.").

(38.) Poker, supra note 21, at 145.

(39.) 136 U.S. 586 (1890).

(40.) Id. at 588-89.

(41.) Id.

(42.) Id. at 589.

(43.) Id. at 594 ("As to the right to the control andpossession of this child, as it is contested by its father and itsgrandfather, it is one in regard to which neither the Congress of theUnited States nor any authority of the United States has any specialjurisdiction.").

(44.) Id. at 593-94.

(45.) Id. at 591.

(46.) Poker, supra note 21, at 145 ("[T]he Burrus opinion didnot provide a rationale for the dictum.").

(47.) 164 U.S. 452 (1896).

(48.) Id. at 453.

(49.) Id. at 454.

(50.) Though the Court did not overtly speak of theamount-in-controversy requirement, it followed this point with acitation to Barry v. Mercein, 46 U.S. (5 How.) 103 (1847). Perrine, 164U.S. at 454. In Barry, the Court held that pursuant to section 22 of theJudiciary Act of 1789, it lacked jurisdiction in "cases to which notest of money value can be applied." Barry, 46 U.S. at 120; seeJudiciary Act of 1789, ch. 20, [section] 22, 1 Stat. 73, 84("[F]inal decrees and judgments in civil actions in a districtcourt, where the matter in dispute exceeds the sum or value of fiftydollars, exclusive of costs, may be reexamined, and reversed or affirmedin a circuit court...."). Perrine also invoked "the reasonsgiven, and ... the authorities cited in" another case, Chapman v.United States, 164 U.S. 436 (1896). Perrine, 164 U.S. at 454. InChapman, the Court dismissed a criminal appeal on the grounds that thefive thousand dollar amount-in-controversy requirement of the statuteestablishing the Court of Appeals of the District of Columbia had notbeen satisfied. 164 U.S. at 446-47, 452; see Act of Feb. 9, 1893, ch.74, [section] 8, 27 Stat. 434, 436.

Perrine came to the Supreme Court by federal-question jurisdiction,as the writ had been sought from a District of Columbia trial court.Until 1980, 28 U.S.C. [section] 1331, the federal-question jurisdictionstatute, contained the same ten thousand dollar amount-in-controversyrequirement as 28 U.S.C. [section] 1332, the diversity-jurisdictionstatute. See Federal Question Jurisdictional Amendments Act of 1980,Pub. L. No. 96-486, [section] 2(a), 94 Stat. 2369, 2369 (codified at 28U.S.C. [section] 1331 (2012)). As such, plaintiffs who wished tolitigate federal questions involving claims of less than ten thousanddollars had to rely on more specific jurisdictional provisions thatcontained no amount-in-controversy requirements. They often turned to 28U.S.C. [section] 1337, which gives district courts "originaljurisdiction of any civil action or proceeding arising under any Act ofCongress regulating commerce or protecting trade and commerce againstrestraints and monopolies" and which imposes noamount-in-controversy requirement in most scenarios. 28 U.S.C. [section]1337(a). "Congress' elimination of [section] 1331'samount in controversy requirement rendered the grant of jurisdiction in[section] 1337 superfluous." ErieNet, Inc. v. Velocity Net, Inc.,156 F.3d 513, 520 (3d Cir. 1998) ("Accordingly, any action thatcould be brought in federal court under [section] 1337 could also bebrought under [section] 1331.").

(51.) 175 U.S. 162, 167 (1899).

(52.) Id. at 167-68.

(53.) Id. at 168.

(54.) Id. at 167-68 ("In the Territories of the United States,Congress has the entire dominion and sovereignty, national and local,Federal and state, and has full legislative power over all subjects uponwhich the legislature of a State might legislate within the State.... Bythe territorial statutes of Arizona, the original jurisdiction of suitsfor divorce is vested in the district courts of theTerritory....").

(55.) 201 U.S. 303, 308 (1906).

(56.) Id. at 307.

(57.) Id.

(58.) Id. at 308.

(59.) Barber v. Barber ex rel. Cronkhite, 62 (21 How.) U.S. 582,604 (1858) (Daniel, J., dissenting).

(60.) Poker, supra note 21, at 145 n.30.

(61.) See 28 U.S.C. [section] 1331 (2012).

(62.) See 1 William Blackstone, Commentaries *442 ("[B]ymarriage, the husband and wife become one person in law: that is, thevery being or legal existence of the woman is suspended during themarriage, or at least is incorporated or consolidated into that of thehusband, under whose wing and protection she performseverything."); 2 JAMES Kent, Commentaries on American Law 129 (NewYork, O. Halsted 2d ed. 1832) ("The legal effects of marriage aregenerally deducible from the principle of the common law, by which thehusband and wife are regarded as one person, and her legal existence andauthority in a degree lost and suspended during the existence of thematrimonial union.").

(63.) See, e.g., Married Women's Property Act, ch. 200,[section] 3, 1848 N.Y. Laws 307, 308 ("It shall be lawful for anymarried female to receive, by gift, grant devise or bequest, from anyperson other than her husband and hold to her sole and separate use, asif she were a single female, real and personal property, and the rents,issues and profits thereof, and the same shall not be subject to thedisposal of her husband, nor be liable for his debts.").

(64.) 280 U.S. 379 (1930).

(65.) See id. at 383-84.

(66.) Id. at 382.

(67.) U.S. CONST. art. III, [section] 2, cl. 2.

(68.) Popovici, 280 U.S. at 382.

(69.) Id. at 383.

(70.) Id.

(71.) Id. at 384.

(72.) 504 U.S. 689 (1992).

(73.) Id. at 699.

(74.) Id. at 699-700.

(75.) Judiciary Act of 1789, ch. 20, [section] 11, 1 Stat. 73, 78.

(76.) Judicial Code and Judiciary Act, ch. 646, [section] 1332(a),62 Stat. 869, 930 (1948) (codified as amended at 28 U.S.C. [section]1332(a) (2012)); see also Ankenbrandt, 504 U.S. at 698 ("Thedefining phrase, 'all suits of a civil nature at common law or inequity,' remained a key element of statutory provisions demarcatingthe terms of diversity jurisdiction until 1948, when Congress amendedthe diversity jurisdiction provision to eliminate this phrase andreplace in its stead the term 'all civil actions.'").

(77.) 504 U.S. at 700 (quoting Fourco Glass Co. v. TransmirraProds. Corp., 353 U.S. 222, 227 n.8 (1957)); see also Finley v. UnitedStates, 490 U.S. 545, 554 (1989) (presuming no intent to change thestatus quo in the 1948 recodification of the Judicial Code), supersededby statute, Judicial Improvements Act of 1990, Pub. L. No. 101-650, 104Stat. 5089 (codified at 28 U.S.C. [section] 1367), as recognized inExxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 558 (2005);Anderson v. Pac. Coast S.S. Co., 225 U.S. 187, 199 (1912) ("[I]twill not be inferred that Congress, in revising and consolidating thelaws, intended to change their effect, unless such intention is clearlyexpressed.").

(78.) Ankenbrandt, 504 U.S. at 704.

(79.) Harbach, supra note 7, at 154.

(80.) 542 U.S. 1 (2004).

(81.) Id. at 17.

(82.) Act of June 14, 1954, Pub. L. No. 83-396, [section] 7, 68Stat. 249, 249 (codified as amended at 4 U.S.C. [section] 4 (2012)).

(83.) U.S. CONST. amend. I.

(84.) Newdow, 542 U.S. at 8.

(85.) Id. at 10.

(86.) Id. at 13 n.5.

(87.) Id. at 17.

(88.) Id. at 12.

(89.) Id. (quoting In re Burrus, 136 U.S. 586, 593-94 (1890)).

(90.) Id. at 13 (citations omitted).

(91.) Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992).

(92.) 542 U.S. at 13.

(93.) 547 U.S. 293(2006).

(94.) Id. at 299 ("In Ankenbrandt ... this Court reined in the'domestic relations exception.'" (citation omitted)).

(95.) 13A WRIGHT ET AL., supra note 1, [section] 3531.9.1.

(96.) The Supreme Court, 2003 Term--Leading Cases, 118 Harv. L.Rev. 248, 432 (2004).

(97.) Id. at 426.

(98.) Erwin Chemerinsky, Federal Jurisdiction 89 (5th ed. 2007).

(99.) Id.

(100.) Harbach, supra note 7, at 157-58.

(101.) Id. at 158; see also Dale Carpenter, Four Arguments Againsta Marriage Amendment That Even an Opponent of Gay Marriage ShouldAccept, 2 U. St. Thomas L.J. 71, 84 n.58 (2004) (describingNewdow's rhetoric as "tailor-made for a future case involvinga gay marriage claim"); Mary Anne Case, Marriage Licenses, 89 Minn.L. Rev. 1758, 1791 (2005) (noting that Newdow was decided at a time whenCongress was weighing whether to prohibit same-sex marriage viaconstitutional amendment or rescind federal jurisdiction over the issue,and stating that "[t]here is every indication that the currentSupreme Court [is reluctant] to decide the constitutional question ofwho may marry"); Cass R. Sunstein, The Right To Marry, 26 CardozoL. Rev. 2081, 2114 (2005) (describing Newdow as "freshsupport" for the idea that the Court should not adjudicate thesame-sex marriage issue at the present moment).

(102.) Linda J. Silberman et al., Civil Procedure: Theory andPractice 328 (2d ed. 2006); see also Lori A. Catalano, Comment,Totalitarianism in Public Schools: Enforcing a Religious and PoliticalOrthodoxy, 34 Cap. U. L. Rev. 601, 635 (2006) ("The majority in[Newdow] overextended this exception to include all cases involving'delicate issues of domestic relations.'" (quoting ElkGrove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 13 (2004))).

(103.) See infra Section III.B.

(104.) See, e.g., Mitchell-Angel v. Cronin, No. 95-7937, 1996 WL107300, at *2 (2d Cir. Mar. 8, 1996) ("[F]ederal courts havediscretion to abstain from exercising jurisdiction over"domestic-relations issues "as long as full and fair adjudication isavailable in state courts."); Am. Airlines v. Block, 905 F.2d 12,14 (2d Cir. 1990) (finding that federal courts may abstain from hearingfederal-question claims that are '"on the verge' of beingmatrimonial ... so long as there is no obstacle to their full and fairdetermination in state courts"); Hemon v. Office of Pub. Guardian,878 F.2d 13, 14 (1st Cir. 1989) ("[F]ederal habeas corpusjurisdiction does not extend to state court disputes over childcustody."); Coats v. Woods, 819 F.2d 236, 237 (9th Cir. 1987)("Given the state courts' strong interest in domesticrelations, we do not consider that the district court abused itsdiscretion when it invoked the doctrine of abstention."); Lynk v.LaPorte Superior Court No. 2, 789 F.2d 554, 563 (7th Cir. 1986)("The judge-made doctrine that prevents federal courts fromadjudicating certain types of domestic relations case[s] under thediversity jurisdiction can be restated as a doctrine of abstention alsoapplicable to cases brought in federal court under the federal-questionjurisdiction."); Peterson v. Babbitt, 708 F.2d 465, 466 (9th Cir.1983) (noting that "[t]he strong state interest in domesticrelations matters" was one factor that led the court to concludethat "federal abstention in these cases [is] appropriate");Csibi v. Fustos, 670 F.2d 134, 137 (9th Cir. 1982) (asserting that"[f]ederal courts may exercise their discretion to abstain fromdeciding" cases "where domestic relations problems areinvolved tangentially to other issues determinative of the case");Tree Top v. Smith, 577 F.2d 519, 521 (9th Cir. 1978) ("[W]e wouldabstain from exercising federal jurisdiction unless we were presentedwith unique circ*mstances which overcame the long-standing policy of thefederal courts to refrain from interfering in state domestic relationsdisputes."); Magaziner v. Montemuro, 468 F.2d 782, 787 (3d Cir.1972) (finding that domestic-relations cases warranted application ofthe abstention doctrine); Lomtevas v. Cardozo, No. 05-CV-2779, 2006 WL229908, at *3 (E.D.N.Y. Jan. 31, 2006) (construing the exception as anabstention doctrine); Smith v. Pension Plan of Bethlehem Steel Corp.,715 F. Supp. 715, 718 (W.D. Pa. 1989) ("[W]e hold that the domesticrelations exception is one of several

factors to be considered in determining whether to abstain from afederal question matter which implicates domestic relationsissues."); see also Stein, supra note 20, at 670("Commentators, in turn, disagree not only about the merits ofcontinuing to recognize such an exception, but also as to whether theexception is a jurisdictional or a jurisprudential bar to hearingcases.").

(105.) Harbach, supra note 7, at 141 ("Some lower federalcourts applied the exception expansively to exclude a broad variety ofdomestic relations issues from federal review, while other lower courtsconstrued the doctrine narrowly to bar only divorce, custody, andalimony decrees.").

(106.) 46 F.3d 1275 (2d Cir. 1995).

(107.) Id. at 1278.

(108.) Id. at 1284 ("This case ... is before this Court onfederal question jurisdiction, not diversity. Therefore, the matrimonialexception does not apply.").

(109.) Mitchell-Angel, 1996 WL 107300, at *1.

(110.) Id. at *2 ("Mitchell argues that the district courterred in dismissing her amended complaint pursuant to thedomestic-relations exception to federal jurisdiction. We disagree....[T]his exception also has been applied to federal questionjurisdiction.").

(111.) Id.

(112.) 468 F.2d 782 (3d Cir. 1972).

(113.) Id. at 783.

(114.) Id.

(115.) Id. at 787 (citing Albanese v. Richter, 161 F.2d 688 (3dCir. 1947)).

(116.) Id.

(117.) 876 F.2d 308 (3d Cir. 1989).

(118.) See id. at 309-10.

(119.) Id. at 310.

(120.) Id. at 312-13.

(121.) Compare Williams v. Lambert, 46 F.jd 1275, 1283 (2d Cir.1995) (stating that "the general policy that federal courts shouldabstain from deciding cases that involve matrimonial and domesticrelations issues is not applicable here [in federal-questioncases]"), and Hernstadt v. Hernstadt, 373 F.2d 316, 317-18 (2d Cir.1967) ("When a pure question of constitutional law is presented,this Court has suggested that the District Court may assume jurisdictioneven if the question arises out of a domestic relationsdispute...."), with Mitchell-Angel v. Cronin, No. 95-7937, 1996 WL107300, at *2 (2d Cir. Mar. 8, 1996) (indicating that the exceptionapplies in federal-question cases). See also Ashmore v. Prus, 510 F.App'x 47, 49 (2d Cir. 2013) ("We expressly decline to addresswhether the domestic relations exception to federal subject matterjurisdiction applies to federal question actions."); Ashmore v. NewYork, No. 12-CV-3032QG), 2012 WL 2377403, at *2 (E.D.N.Y. June 25, 2012)(finding a constitutional claim "barred by the domestic relationsexception to this court's jurisdiction"), affd on othergrounds sub nom., Prus, 510 F. App'x 47; Puletti v. Patel, No. 05CV 2293(SJ), 2006 WL 2010809, at *4 (E.D.N.Y. July 14, 2006) (applyingthe exception in a federal-question case); Chase v. Czajka, No. 04 Civ.8228, 2005 U.S. Dist. LEXIS 8743, at *19-23 (S.D.N.Y. May 12, 2005)(same); McArthur v. Bell, 788 F. Supp. 706, 708-09 (E.D.N.Y. 1992)(same).

(122.) Compare McLaughlin v. Pernsley, 876 F.2d 308, 312 (3d Cir.1989) ("We recognize that domestic relations matters havetraditionally been viewed as a limitation on the diversity jurisdictionof the federal courts.... But this action was not brought under thediversity statute."), and Flood v. Braaten, 727 F.2d 303, 308 (3dCir. 1984) ("[T]he domestic relations exception does not apply tocases arising under the Constitution or laws of the UnitedStates."), with Magaziner v. Montemuro, 468 F.2d 782 (3d Cir. 1972)(declining to exercise jurisdiction over a federal civil rights claim).For district-court opinions within the Third Circuit, see Birla v.Birla, No. 07-1774 (MLC), 2007 WL 3227185, at *2 (D.N.J. Oct. 30, 2007),which applies the exception in a federal-question case; and Dixon v.Kuhn, No. 064224 (MLC), 2007 WL 128894, at *2 (D.N.J. Jan. 12, 2007),which also applies the exception.

(123.) Compare Catz v. Chalker, 142 F.3d 279, 291-92 (6th Cir.1998) (holding that the exception applies to federal questions only in"core" domestic-relations cases), Agg v. Flanagan, 855 F.2d336, 339 (6th Cir. 1988) ("The claim that the state's methodof determining and enforcing child support is unconstitutional andcontrary to federal law is not identical to a claim that a particularsupport order is too high. The domestic relations exception ... [doesnot apply to] the first."), Huff v. Metro. Life Ins. Co., 675 F.2d119, 122-23 (6th Cir. 1982) (stating that a federal court hasjurisdiction to decide whether benefits that depended ondomestic-relations issues existed under a federal statute), and HuynhThi Anh v. Levi, 586 Fad 625, 627 (6th Cir. 1978) (declining to applythe exception to a habeas petition), with Firestone v. Cleveland Tr.Co., 654 F.2d 1212, 1215 (6th Cir. 1981) ("Even when brought underthe guise of a federal question action, a suit whose substance isdomestic relations generally will not be entertained in a federalcourt."). For a district-court case within the Sixth Circuit, seeSmith v. Oakland County Circuit Court, 344 F. Supp. 2d 1030, 1064-66(E.D. Mich. 2004), which applies the exception in a federal-questioncase.

(124.) Compare Jones v. Brennan, 465 F.3d 304, 307 (7th Cir. 2006)(suggesting that the exception should apply to federal questions), andAllen v. Allen, 48 F.3d 259, 261 (7th Cir. 1995) (holding that"[t]he domestic relations exception to federal jurisdictionprevents the district court from hearing" a constitutional claimthat is "inextricably intertwined" with a challenge to anunderlying custody decree), with Lynk v. LaPorte Superior Court No. 2,789 F.2d 554, 558 (7th Cir. 1986) (exercising jurisdiction over a caseinvolving family matters because it did not arise pursuant to diversityjurisdiction).

(125.) Compare Ruffalo ex rel. Ruffalo v. Civiletti, 702 F.2d 710,718 (8th Cir. 1983) (implying that the exception is not a jurisdictionalbar by declining to apply it in a federal-question suit because therewas no "state forum in which the plaintiff may obtainrelief'), and Overman v. United States, 563 F.2d 1287, 1292 (8thCir. 1977) ("There is, and ought to be, a continuing federal policyto avoid handling domestic relations cases in federal court in theabsence of important concerns of a constitutional dimension."),with Smith v. Huckabee, 154 F. App'x 552, 554-55 (8th Cir. 2005)(declining to hear a [section] 1983 case because it raised domesticrelations issues), and Bergstrom v. Bergstrom, 623 F.2d 517, 520 (8thCir. 1980) ("Where a constitutional issue arises out of a custodydispute, and the initial determination involves a reexamination of thecustody arrangement, the proper course is to dismiss the case and remandto the state court."). Ruffalo purported not to decide whether thedomestic-relations exception applies to federal questions because"[h]ere, the state court cannot grant effective relief." 702F.2d at 718. It logically follows from this reasoning, however, that theexception cannot be a general limitation on federal-questionjurisdiction. For district-court cases within the Eighth Circuit, seeWhiteside v. Nebraska State Health & Human Services, No. 4:07CV3030,2007 WL 2123754, at *1~2 (D-Neb. July 19, 2007), which applies theexception in a federal-question case; and Harden v. Harden, No.8:07cv68, 2007 WL 700982, at *2 (D. Neb. Feb. 28, 2007), which alsoapplies the exception.

(126.) Compare Atwood v. Fort Peck Tribal Court Assiniboine, 513F.3d 943, 947 (9th Cir. 2008) ("[T]he domestic relations exceptionapplies only to the diversity jurisdiction statute...."), with TreeTop v. Smith, 577 F.2d 519, 520 (9th Cir. 1978) (declining to exercisejurisdiction over a habeas petition). For district-court cases withinthe Ninth Circuit that apply the exception in a federal-question case,see Edland v. Edland, No. C08-5222RBL, 2008 WL 2001813, at *1 (W.D.Wash. May 7, 2008); Arroyo ex rel. Arroyo-Garcia v. County of Fresno,No. CV F 07-1443 AWI SMS, 2008 WL 540653, at *4 (E.D. Cal. Feb. 25,2008); Andrews v. Jefferson County Colorado Department of HumanServices, No. C07-02918 HRL, 2007 WL 3035447, at *2 (N.D. Cal. Oct. 16,2007); Fisher v. California, No. 1:06-cv-00303-AWI-DLB-P, 2007 WL1430091, at *1 (E.D. Cal. May 15, 2007); Banks v. Washington CPS, No.CV-06-0335-JLQ, 2007 U.S. Dist. LEXIS 103043, at *2 (E.D. Wash. Jan. 11,2007); Gates v. County of Lake, No. CIV. S-05-1374 DFL PAN PS, 2005 U.S.Dist. LEXIS 32182, at *2 (E.D. Cal. Dec. 12, 2005); and Rousay v.Mieseler, No. CIV. S-05-1261 LKK PAN PS, 2005 U.S. Dist. LEXIS 27431, at*3 (E.D. Cal. Nov. 9, 2005).

(127.) See, e.g., Johnson v. Rodrigues, 226 F.3d 1103, 1111-12(10th Cir. 2000) (denying that the exception prevents federal courtsfrom adjudicating constitutional questions since remaining state-lawquestions can be remanded to state courts).

(128.) See, e.g., Wideman v. Colorado, No. 06-CV-001423-WDM-CBS,2007 WL 757639, at *7 (D. Colo. Mar. 8, 2007) (finding a lack ofsubject-matter jurisdiction over a constitutional claim pursuant to thedomestic-relations exception); Fellows v. Kansas, No. 04-4131-JAR, 2005WL 752129, at *4 (D. Kan. Mar. 31, 2005) (holding that the court"cannot decide" the plaintiff's federal-question claimsdue to the domestic-relations exception); Pettit v. New Mexico, 375 F.Supp. 2d 1140, 1151 (D.N.M. 2004) ("[T]he domestic relationsexception precludes the Court from exerting jurisdiction over some, ifnot all, of Pettit's [federal-question] claims.").

(129.) 479 F.2d 1097 (6th Cir. 1973).

(130.) Id. at 1098.

(131.) Id.

(132.) 654 F.2d 1212, 1215 (6th Cir. 1981).

(133.) 142 F-3d 279 (6th Cir. 1998).

(134.) Id. at 281.

(135.) Id. at 283-84, 289-90.

(136.) Id. at 290.

(137.) Id. at 291 (emphasis added).

(138.) Id. at 291-92.

(139.) Id. at 292.

(140.) Id. at 291 (concluding "that the case is best describedas" a noncore case).

(141.) 929 F.2d 20, 22 (1st Cir. 1991) (alteration in original)(citations omitted).

(142.) Id. at 23.

(143.) 878 F.2d 13, 15 (1st Cir. 1989).

(144.) See id. at 14-15.

(145.) Stein, supra note 20, at 679.

(146.) Sup. Ct. R. 10(a).

(147.) U.S. CONST. art. III, [section] 2 (emphasis added).

(148.) Eagle Forum Brief, supra note 12, at 4.

(149.) Calabresi & Sinel, supra note 25, (manuscript at 5).

(150.) Jones v. Brennan, 465 F.3d 304, 306 (7th Cir. 2006); seealso Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 384 (1930) (assertingthat federal jurisdiction over "suits against consuls andvice-consuls" does not "include what formerly would havebelonged to the ecclesiastical Courts"); Reynolds v. United States,98 U.S. 145, 165 (1878) ("[U]pon the separation of theecclesiastical courts from the civil[,] the ecclesiastical [courts] weresupposed to be the most appropriate for the trial of matrimonial causesand offences against the rights of marriage...."); Eagle ForumBrief, supra note 12, at 4-5 ("[C]ases at law were heard before theCourt of King's Bench or the Court of Common Pleas, and cases inequity were heard before the Court of Exchequer or the Court ofChancery. In 1787, only Ecclesiastical Courts could hearmarriage-related cases...."); 13E WRIGHT EXAL., supra note 1,[section] 3609 ("Traditionally, the exceptions were rationalized onthe basis of an historic analysis of the ecclesiastical jurisdiction ofthe English courts....").

(151.) 13E Wright et al., supra note 1, [section] 3609.

(152.) Calabresi & Sinel, supra note 25, (manuscript at 42).

(153.) Jurisdiction and Removal Act of 1875, ch. 137, 18 Stat. 470;see Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 807 (1986)(referring to "the Judiciary Act of 1875").

(154.) Calabresi & Sinel, supra note 25, (manuscript at 42).

(155.) Id. (manuscript at 42-43) (emphasis omitted).

(156.) Id. (manuscript at 43).

(157.) Ankenbrandt v. Richards, 504 U.S. 689, 700 (1992); see alsosupra Section I.A.

(158.) Ankenbrandt, 504 U.S. at 700-01. Courts generally do notpresume that Congress has amended a statute by implication. SeeNat'l Ass'n of Home Builders v. Defs. of Wildlife, 551 U.S.644, 662 (2007) (noting that repeals by implication are disfavored);Chem. Mfrs. Ass'n v. Nat. Res. Def. Council, Inc., 470 U.S. 116,128 (1985) ("[A]bsent an expression of legislative will, we arereluctant to infer an intent to amend the Act so as to ignore the thrustof an important decision."); Reg'l Rail Reorganization ActCases, 419 U.S. 102, 134 (1974) ("A new statute will not be read aswholly or even partially amending a prior one unless there exists a'positive repugnancy' between the provisions of the new andthose of the old that cannot be reconciled." (quoting In re PennCent. Transp. Co., 384 F. Supp. 895, 943 (Reg'l Rail Reorg. Ct.1974))); United States v. Welden, 377 U.S. 95, 103 n.12 (1964)("Amendments by implication ... are not favored."); UnitedStates v. Madigan, 300 U.S. 500, 506 (1937) ("[T]he modification byimplication of the settled construction of an earlier and differentsection is not favored.").

(159.) Ankenbrandt, 504 U.S. at 700 ("Whatever Article III mayor may not permit, we thus accept the Barber dictum as a correctinterpretation of the Congressional grant." (quoting Phillips,Nizer, Benjamin, Krim & Ballon v. Rosenstiel, 490 F.2d 509, 514 (2dCir. 1973)).

(160.) See, e.g., Ankenbrandt, 504 U.S. at 704 (noting the"special proficiency developed by state tribunals over the pastcentury and a half in handling issues that arise in the granting of[divorce, child custody and alimony] decrees"); Fernos-Lopez v.Figarella Lopez, 929 F.2d 20, 22 (1st Cir. 1991) (noting "thestrong state interest in domestic relations"); Vaughan v. Smithson,883 F.2d 63, 65 (10th Cir. 1989) ("[T]he states have a stronginterest in domestic relations matters...."); Drewes v. Ilnicki,863 F.2d 469, 471 (6th Cir. 1988) ("[T]he exception ... continuesto the present day because the field of domestic relations involveslocal problems...."); Raftery v. Scott, 756 F.2d 335, 343 (4th Cir.1985) ("[T]he state through its courts has a stronger and moredirect interest in the domestic relations of its citizens than does thefederal court."); Ruffalo ex rel. Ruffalo v. Civiletti, 702 F.2d710, 717 (8th Cir. 1983) ("[F]ederal courts have consistentlyrefused to entertain diversity suits involving domestic relations [dueto] the strong state interest in domestic relations matters....");Csibi v. Fustos, 670 F.2d 134, 136-37 (9th Cir. 1982) ("States havean interest in family relations superior to that of the federalgovernment...."); Ellison v. Sadur, 700 F. Supp. 54, 55 (D.D.C.1988) ("This exception is largely grounded in the belief that statecourts have a particularly strong interest ... in resolving disputesinvolving family relationships."); Tuerffs v. Tuerffs, 117 F.R.D.674, 675 (D. Colo. 1987) (observing the "state's stronginterest in domestic relations cases"); Yelverton v. Yelverton, 614F. Supp. 528, 529 (N.D. Ind. 1985) ("[D]omestic relations matters,being of local concern, are best left to the jurisdictional province ofstate courts."); see also Kirby v. Mellenger, 830 F.2d 176, 178(nth Cir. 1987) ("The reasons for federal abstention in these casesare apparent: the strong state interest in domestic relations matters,the competence of state courts in settling family disputes, thepossibility of incompatible federal and state court decrees in cases ofcontinuing judicial supervision by the state, and the problem ofcongested dockets in federal courts."); Crouch v. Crouch, 566 F.2d486, 487 (5th Cir. 1978) (same); Rush, supra note 22, at 8-9("Reasons for this abstention include the [superior] competence andexpertise of state courts in settling family disputes, the stronginterests of the state in domestic relations matters, the risk ofinconsistent federal and state court rulings in cases of continuingstate court jurisdiction, and congested federal dockets.").

(161.) See, e.g., Ankenbrandt, 504 U.S. at 703-04 ("Issuanceof decrees of this type not infrequently involves retention ofjurisdiction by the court and deployment of social workers to monitorcompliance. As a matter of judicial economy, state courts are moreeminently suited to work of this type than are federal courts, whichlack the close association with state and local government organizationsdedicated to handling issues that arise out of conflicts over divorce,alimony, and child custody decrees."); Femos-Lopez, 929 F.2d at 22(noting "the relative expertise of state courts"); Vaughan,883 F.2d at 65 (noting that states "have developed an expertise insettling family disputes"); Rykers v. Alford, 832 F.2d 895, 899(5th Cir. 1987) ("[T]he state courts have greater expertise andinterest in domestic matters."); Ruffalo, 702 F.2d at 717(observing "the competence of state courts in settling familydisputes" (quoting Crouch, 566 F.2d at 487)); Lloyd v. Loeffler,694 F.2d 489, 492 (7th Cir. 1982) ("At its core are certain typesof cases, well illustrated by divorce, that the federal courts are not,as a matter of fact, competent tribunals to handle.... They are notlocal institutions, they do not have staffs of social workers, and thereis too little commonality between family law adjudication and the normalresponsibilities of federal judges to give them the experience theywould need to be able to resolve domestic disputes with skill andsensitivity."); Csibi, 670 F.2d at 137 ("[S]tate courts havemore expertise in the field of domestic relations."); McCullough exrel. Jordan v. McCullough, 760 F. Supp. 613, 616 (E.D. Mich. 1991)("[State courts] have developed a proficiency and expertise inthese cases." (quoting Firestone v. Cleveland Tr. Co., 654 F.2d1212, 1215 (6th Cir. 1981))); Ellison, 700 F. Supp. at 55 (assertingthat state courts "have developed special competence" infamily law issues); Tuetffs, 117 F.R.D. at 675 (noting "thecompetence of state courts to settle [domestic] disputes").

(162.) As amici in Obergefell put it, "[L]eaving statesresponsible to shape family law in light of the flux in family forms ismost likely to promote sound policies responsive to the needs ofAmerican families over time." Kuykendall et al. Brief, supra note12, at 12.

(163.) Id. at 15.

(164.) Sosna v. Iowa, 419 U.S. 393, 404 (1975).

(165.) 133 S. Ct. 267s, 2691 (2013).

(166.) Kuykendall et al. Brief, supra note 12, at 14.

(167.) See id. at 16-17 (arguing that without an exception tofamily law cases raising federal questions, "a party failing togain a favorable outcome in state courts or the democratic process couldfile in federal court").

(168.) Windsor, 133 S. Ct at 2689.

(169.) Cf. Alexander M. Bickel, The Least Dangerous Branch: TheSupreme Court at the Bar OF POLITICS (1962) (discussing the threat ofoverly active courts to majoritarian political processes).

(170.) While federal courts rarely hear "legal subjectsaffected by the laws of marriage and divorce," state courts"primarily, routinely, and exhaustively" hear cases involving"[p]roperty rights and distribution, child custody and support,[and] the disposition of estates." Brief of States II, supra note12, at 7.

(171.) Kuykendall et al. Brief, supra note 12, at 15 ("If theFourteenth Amendment speaks to the rights of states to license same-sexmarriage, the same logic speaks to a variety of institution-based topicswithin family law ... such as divorce, the best interests of childrenand defining the meaning of the word 'parent.'").

(172.) Id. at 19.

(173.) Richard Maloy, Forum Shopping? What's Wrong with That?,24 Quinnipiac L. Rev. 25, 25 (2005).

(174.) Henry M. Hart, Jr., The Power of Congress To Limit theJurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L.Rev. 1362, 1401 (1953).

(175.) Id. Others also make this claim. See, e.g., Martin H.Redish, Constitutional Limitations on Congressional Power To ControlFederal Jurisdiction: A Reaction to Professor Sager, 77 Nw. U. L. Rev.143 (1982).

(176.) Hart, supra note 174, at 1401.

(177.) See infra Section III.A.2.

(178.) See, e.g., Stone v. Powell, 428 U.S. 465, 494 n.35 (1976)("[W]e are unwilling to assume that there now exists a general lackof appropriate sensitivity to constitutional rights in the trial andappellate courts of the several States. State courts, like federalcourts, have a constitutional obligation to safeguard personal libertiesand to uphold federal law."); see also Paul M. Bator, Finality inCriminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L.Rev. 441, 509 (1963) ("There is no intrinsic reason why the factthat a man is a federal judge should make him more competent, orconscientious, or learned with respect to the applicable federal lawthan his neighbor in the state courthouse.").

(179.) Martin H. Redish & Curtis E. Woods, Congressional PowerTo Control the Jurisdiction of Lower Federal Courts: A Critical Reviewand a New Synthesis, 124 U. Pa. L. Rev. 45, 47 & n.8 (1975).

(180.) See, e.g., Chemerinsky, supra note 98, at 311-14; 1 BarbaraJ. Van Arsdale et al., Federal Procedure, Lawyers Edition [section]1:261 (2013); 13E Wright et al., supra note 1, [section][section] 3609,3690.1; Michael B. Mushlin, Unsafe Havens: The Case for ConstitutionalProtection of Foster Children from Abuse and Neglect, 23 Harv. C.R.-C.L.L. Rev. 199, 270 (1988); Rush, supra note 22, at 20 ("[Do]mesticrelations cases that raise federal questions should be treated likeother federal question cases."); Thomas H. Dobbs, Note, TheDomestic Relations Exception Is Narrowed After Ankenbrandt v. Richards,28 Wake Forest L. Rev. 1137, 1137 (1993) (explaining that the exceptionlimits federal "jurisdiction over matters of domestic relationseven when litigants could establish diversity of citizenship and theamount in controversy requirements"); Moore, supra note 22, at 878(arguing that in federal-question cases implicating domestic relations,"[t]he question federal courts should ask ... is whether theparties claiming federal jurisdiction are truly alleging a nonfrivolousconstitutional claim or are merely involved in a domestic relationsdispute which has no reason for being in the federal courts under thefederal question statute" (citation omitted)); Maryellen Murphy,Comment, Domestic Relations Exception to Diversity Jurisdiction:Ankenbrandt v. Richards, 28 New Eng. L. Rev. 577, 577 (1993) (describingthe exception as "a limitation on federal court diversityjurisdiction"); Swenson, supra note 22, at 1096; Anthony B. Ullman,Note, The Domestic Relations Exception to Diversity Jurisdiction, 83Colum. L. Rev. 1824, 1824 (1983); Francis M. Dougherty, Annotation,"Domestic Relations" Exception to Jurisdiction of FederalCourts Under Diversity of Citizenship Provisions of 28 U. S.C.A.[section] 1332(a), 100 A.L.R. Fed. 700 (1990).

(181.) Harbach, supra note 7, at 143 n.46 ("Few of what areregarded as the foundational cases arose in the context of diversityjurisdiction.").

(182.) In re Burrus, 136 U.S. 586, 596-97 (1890).

(183.) Perrine v. Slack, 164 U.S. 452, 453 (1896).

(184.) Simms v. Simms, 175 U.S. 162, 168-69 (1899).

(185.) De la Rama v. De la Rama, 201 U.S. 303, 308 (1906).

(186.) Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 382 (1930).

(187.) U.S. Const, art. III, [section] 2, cl. 1.

(188.) Barber v. Barber ex rel. Cronkhite, 62 U.S. (21 How.) 582,583-84 (1858).

(189.) Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 17(2004).

(190.) 409 U.S. 810 (1972).

(191.) See, e.g., Andrew Janet, Note, Eat, Drink, and Marry: WhyBaker v. Nelson Should Have No Impact on Same-Sex Marriage Litigation,89 N.Y.U. L. Rev. 1777 (2014); Robert Barnes, Supreme Court: Was GayMarriage Settled in 1972 Case?, Wash. Post (Aug. 17, 2014), http://www.washingtonpost.com/politics/courtsjaw/supreme-court-was-gay-marriage-settled-in -1972-case/2014/08/17/1a5e41f8-23c6-ne4-86ca-6f03cbd15c1a_story.html [http://perma.cc /DD8Q-ECBK]; Lyle Denniston, Gay Marriage andBaker v. Nelson, SCOTUSblog (July 4, 2012, 4:52 PM),http://www.scotusblog.com/2012/07/gay-marriage-and-baker-v-nelson[http://perma.cc/YX3V-RNR3]; Lyle Denniston, Testing the Status of Bakerv. Nelson, SCOTUSblog (Oct. 28, 2014, 4:50 PM),http://www.scotusblog.com/2014/10/testing-the -status-of-baker-v-nelson[http://perma.cc/s2QC-49WV].

(192.) Emergency Application, supra note 13, at 16.

(193.) Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appealdismissed, 409 U.S. 810.

(194.) Appellee's Motion To Dismiss Appeal and Brief at 3,Baker, 409 U.S. 810 (No. 71-1027).

(195.) Id.

(196.) 325 U.S. 226, 233 (1945) (quoting Ohio ex. rel. Popovici v.Agler, 280 U.S. 379, 383-84 (1930)).

(197.) 409 U.S. 810.

(198.) Emergency Application, supra note 13, at 16.

(199.) U.S. Const, art. III, [section] 2, cl. 1 (emphasis added).

(200.) Id.

(201.) See David I. Levine et al., Remedies: Public and Private 452(5th ed. 2009) ("[W]hether the relief sought should becharacterized as legal or equitable turns on how the court's orderwould be enforced. Equity courts ordered defendants, personally, to act,and enforced their orders by their contempt power. Law courts relied onseparate administrative proceedings to enforce their judgments.").

(202.) Ecclesiastical courts had exclusive jurisdiction over"[m]atrimonial causes," until the Divorce and MatrimonialCauses Act of 1857, 20 & 21 Viet. c. 85 (Eng.), was passed.Calabresi & Sinel, supra note 25, (manuscript at 5). Nonetheless,historically the courts of equity heard marital cases frequently. Equitycourts

 gave security to women who held real and personal estates by means of future equitable interests not recognised at the common law, granted protection to the estate of the jointress and accorded a right to separated or divorced women to take a share of their husband's estate commensurate with the portion which they brought into marriage.

Maria L. Cioni, Women and Law in Elizabethan England withParticular Reference to the Court of Chancery, at i (1985). In certaincirc*mstances, equity courts even let women sue their husbands. Id. at30; Tim Stretton, Women Waging Law in ELIZABETHAN ENGLAND 143-54 (1998).Equity courts offered married women an alternative to the common-lawcourts for asserting judicially enforceable rights. See Mary R. Beard,Woman as Force in History: A Study in Traditions and Realities 136-44,198-204 (1946); Stretton, supra, at 25-26. Through the doctrine of the"separate estate," equity courts could evade coverture,"the common law fiction that a married woman had virtually no legalidentity separate from her husband," and even allowed married womento sue their husbands. Stretton, supra, at 26-28.

The Court of Requests, a '"poor man'sChancery,' a national equity court which flourished for just over acentury and a half between the time of Henry VII and the onset of theCivil War," id. at 7, was also hospitable to women's maritalclaims, id. at 129-54 (providing a broad overview of the litigationpatterns of married women in the Court of Requests, including suits bywomen both with and against their husbands). Female litigants in theCourt of Requests were common. Id. According to Tim Stretton, "Onaverage one third of the cases that came before the 'Masters',or judges, of Requests involved a female plaintiff or defendant....[They] were accustomed to dealing with women litigants in numbers everyday the court was in session." Id. (citations omitted).

Marriage cases, especially those based on married women'sproperty or alimony claims, also regularly came to the chancery courts.Allison Anna Tait, The Beginning of the End of Coverture: A Reappraisalof the Married Woman's Separate Estate, 26 Yale J.L. & FEMINISM165, 208 n.255 (2014) ("Marital litigation could occur in variousfora including but not limited to Chancery."). For a review of theclaims brought by married women in chancery courts, see id. at 207-11.As one commentator put it, chancery courts "laid the foundationsfor married women's property rights." CIONI, supra, at i.Chancery courts were "careful not to tread too heavily onecclesiastical jurisdiction and maintained a policy of avoiding inquiryinto the merits of marital disputes." Tait, supra, at 208. As onechancery court acknowledged, the "Ecclesiastical Court ... hasexclusive cognizance of the rights and duties arising from the state ofmarriage." Legard v. Johnson (1797) 30 Eng. Rep. 1049, 1052, 3 Ves.Jun. 352, 359. Nonetheless, chancery courts did not abstain from hearingcases that raised marital questions, especially those involving"questions relating to the regulation of trusts." Tait, supra,at 208 ("The controlling factor in Chancery's takingjurisdiction in these cases was the presence of questions relating tothe regulation of trusts."). Another commentator has observed thatthe sort of married women's claims heard in chancery courts cangenerally be sorted "broadly into two camps: proprietary ... andcontractual." Michael Macnair, The Conceptual Basis of Trusts inthe 17th and 18th Centuries, in Itinera Fiduciae: Trust and Treuhand inHistorical Perspective 207, 235 (Richard Helmholz & RobertZimmermann eds., 1998). On rare occasions, English equity courts evendissolved marriages. See, e.g., Terrell v. Terrell (1581) 21 Eng. Rep.104, 123, Tothill 4, 59 (issuing two divorce decrees); 1 George Spence,The Equitable Jurisdiction of the Court of Chancery 702 (Philadelphia,Lea and Blanchard 1846) ("It is not unlikely, however, that theCourt of Chancery, under its clerical chancellors, exercisedjurisdiction to decree a divorce a vinculo matrimonii.").

(203.) 136 U.S. 586, 593-94 (1890) (emphasis added).

(204.) Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383 (1930).

(205.) Barber v. Barber ex rel. Cronkhite, 62 U.S. (21 How.) 582,604-05 (1858) (Daniel, J., dissenting).

(206.) As seen supra Section I.A, not all early domestic-relationscases invoked this reasoning. Some, such as In re Burrus, gave noreasoning at all, 136 U.S. at 593-94, while others, such as De la Ramav. De la Rama, asserted that domestic-relations cases cannot satisfy thetechnical requirements of diversity jurisdiction, 201 U.S. 303, 308(1906), a rationale that neither applies exclusively todomestic-relations matters nor necessarily always applies to particulardomestic-relations controversies. Thus, these cases are also entitled tolittle weight.

(207.) Barber, 62 U.S. (21 How.) at 604-os.

(208.) Erwin C. Surrency, The Courts in the American Colonies, 11Am. J. Legal Hist. 253, 275 (1967) ("As no ecclesiastical courtswere established in the colonies, the governors of the royal colonieswere authorized to assume the jurisdiction over matters arising from theadministration and the probate of wills."). Probate cases,"which came within the jurisdiction of the ecclesiastical courts inEngland, were generally handled in America by the governor." Id. at253. Meanwhile, chancery courts, though "a well-established part ofthe English judicial system at the time of settlement of the Americancolonies," were mostly nonexistent in the American colonies. Id. at271 ("[F]ew of these courts were established permanently in thecolonies."). The significance of the fact that the early Americancolonies did not have ecclesiastical courts to the issue of thedomestic-relations exception has not entirely escaped judicialattention. See, e.g., Lloyd v. Loeffler, 694 F.2d 489, 491-92 (7th Cir.1982) ("The usual account of the domestic relations exception ...assumes without discussion that the proper referent is English ratherthan American practice, though if only because there was noecclesiastical court in America [and] American law and equity courts hada broader jurisdiction in family-law matters than their Englishcounterparts had."). Although asserting that "[p]robably thereference to law and equity in the first judiciary act is mainly toEnglish practice rather than to the diverse judicial systems of thecolonies and states," Lloyd acknowledges that "it would be oddif the jurisdiction of England's ecclesiastical courts, theocraticinstitutions unlikely to be well regarded in America, should have beenthought to define the limits of the jurisdiction of the new federalcourts." Id. at 492.

(209.) In general, colonial jurisdictional boundaries were hazy andill-defined. "[T]he colonists never created the numerous courtswith limited jurisdiction similar to those found in England at thatperiod," and as a result colonial courts often "combined thejurisdiction generally exercised by different courts in England."Surrency, supra note 208, at 261. While "[a]ttempts were made tointroduce courts baron, an exchequer court, and a few others," allfailed. Id. Even when colonists created different courts, they"were not consistent in the titles given" to them. Id. at 267("[T]he records revealed significant changes in titles.").Oftentimes "the title of the same court was confusing for it wasnot given precisely, and the petitioners would address itdifferently." Id. at 254. Although "English courts were takenas a model," in practice, names were affixed to courts "whichhad little resemblance to their namesakes." Id. at 263. ErwinSurrency summarizes the situation in the colonies as follows:

 The courts in the American colonies were patterned after those in England, but often the American variety bore little resemblance to the English prototype. The names may have been the same, but the jurisdiction and the operation of the courts varied greatly, and hence the American variety bore little resemblance to the English courts.

Id. at 266. As such, "one should not conclude that a separatetype of court existed because another title is found in use or isreferred to by varying names in contemporary sources." Id. at 267.

(210.) See 2 George Elliott Howard, A History of MatrimonialInstitutions 353-60 (photo, reprint 1999) (1904).

(211.) Charles Warren, New Light on the History of the FederalJudiciary Act of 1789, 37 Harv. L. Rev. 49, 50, 59-61 (1923).

(212.) U.S. Const, art. III, [section] 2, cl. 1 (emphasis added).

(213.) Some federal courts have recognized this fact. See, e.g.,Lynk v. LaPorte Superior Court No. 2, 789 F.2d 554, 558 (7th Cir. 1986)("The existence of the exception rests on dubious historical, butpowerful pragmatic, grounds."); Lloyd, 694 F.2d at 491 ("Thehistorical account is unconvincing."); see also 13E WRIGHT ET AL.,supra note 1, [section] 3609 (noting that the "debate over theaccuracy of this historic characterization [of the domestic-relationsexception] has cast doubt on the legitimacy of that rationale").

214. Akhil Reed Amar, A Neo-Federalist View of Article III:Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. Rev. 205,240 (1985) [hereinafter Amar, Two Tiers of Federal Jurisdiction]("Nine specific-and overlapping--categories of cases are spelledout ... but these categories are not all of equal importance. Thejudicial power must extend to 'all' cases in the first threecategories; not so with the final six enumerated categories, where theword 'all' is nowhere to be found. The implication of thetext, while perhaps not unambiguous, is strong: although the judicialpower must extend to all cases in the first three categories, it may,but need not, extend to all cases in the last six."). Article III,Section 2 reads, in relevant part:

 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;--to Controversies to which the United States shall be a Party;-to Controversies between two or more States;--between a State and Citizens of another State,--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

U.S. Const, art. III, [section] 2, cl. 1. As Amar notes,"'All' is used not once, not twice, but three separatetimes in the opening sentence of section 2. The word is then omitted sixtimes. This selective repetition and omission tends to confirm thepresumption of intentional insertion." Amar, Two Tiers of FederalJurisdiction, supra, at 242. Amar has discussed and elaborated on thisargument in a series of books and articles, including Akhil Reed Amar,America's Constitution: A Biography 227-29 (2005) [hereinafterAmar, America's Constitution]; Akhil Reed Amar, Reports of My DeathAre Greatly Exaggerated: A Reply, 138 U. PA. L. Rev. 1651 (1990); AkhilReed Amar, Taking Article III Seriously: A Reply to Professor Friedman,85 Nw. U. L. Rev. 442 (1991); and Akhil Reed Amar, The Two-TieredStructure of the Judiciary Act of 1789, 138 U. Pa. L. Rev. 1499 (1990)[hereinafter Amar, Two-Tiered Structure].

(215.) Martin v. Hunter's Lessee, 14 U.S. (1 Wheat) 304, 334(1816); see also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803)("It cannot be presumed that any clause in the constitution isintended to be without effect; and therefore such a construction isinadmissible, unless the words require it."); Amar, Two Tiers ofFederal Jurisdiction, supra note 214, at 242 ("The selective use bythe Framers of the word 'all' may not be lightly presumed tobe unintentional. Where possible, each word of the Constitution is to begiven meaning; no words are to be ignored as mere surplusage.").Amar notes that

 the presumption of intentional insertion ... is further strengthened by the next sentence of Article III, which carefully modifies the cases affecting public ambassadors falling within the Supreme Court's original jurisdiction with the qualifier "all," thus harmonizing with the language of the jurisdictional menu: "In all Cases affecting Ambassadors, other public Ministers and Consuls, ... the supreme Court shall have original Jurisdiction."

Id. (citations omitted) (quoting U.S. CONST, art. III, [section] 2,cl. 2).

(216.) Amar, Two Tiers of Federal Jurisdiction, supra note 214, at242 ("The records of the Constitutional Convention also stronglycorroborate the notion that the Framers used the word 'all'intentionally and with care, purposefully establishing a two-tieredjurisdictional structure."). For more on the historical evidencefrom the Constitutional Convention that the Framers intended to create atwo-tiered system of federal jurisdiction, see id. at 242-45, whichdetails the series of revisions made to the original draft of ArticleIII.

(217.) See id. at 242. Compare 2 The Records of the FederalConvention of 1787, at 46 (Max Farrand ed., 1911) [hereinafter Records](showing the Constitutional Convention's initial resolutionconcerning the subject of federal jurisdiction, whose specificvocabulary choices gestured toward a nascent two-tiered jurisdictionalstructure), with id. at 146-47 (showing the first draft of the Committeeof Detail produced by Edmund Randolph and John Rutledge, which reflectedan embryonic two-tiered jurisdictional structure), id. at 172-73(showing a later draft by James Wilson and John Rutledge, whichpreserved the two-tiered structure of the prior draft), id. at 576(showing the draft produced by the Committee of Style, which omitted theword "all" in establishing the Supreme Court's originaljurisdiction), and id. at 661 (showing the final draft, which includedthe word "all").

(218.) See U.S. CONST, art. III, [section] 2, cl. 3; Amar, TwoTiers of Federal Jurisdiction, supra note 214, at 240-41.

(219.) See Amar, Two Tiers of Federal Jurisdiction, supra note 214,at 215 ("These are words of obligation.... Unless clearly overruledor modified by other language of the Constitution, this mandatorylanguage must be given effect.").

(220.) U.S. Const, art. III, [section] 2, cl. 1 (emphasis added).

(221.) Robert N. Clinton, A Mandatory View of Federal CourtJurisdiction: A Guided Quest for the Original Understanding of ArticleIII, 132 U. Pa. L. Rev. 741, 782 (1984). As Clinton explained:

 [T]he Wilson-Rutledge draft and the Committee report retained the mandatory phrase "shall extend" when referring to the jurisdiction of the Supreme Court. This phrase had been included in the original Randolph plan and its various amendments during the early portion of the Convention deliberations. The Convention and the Committee apparently invoked "shall" in its mandatory sense rather than as future tense. The repeated consensus on the need for judicial independence and the fear of legislative encroachment on judicial powers strongly suggest that the framers did not intend to create any congressional power to determine the scope of jurisdiction of the federal judiciary. Indeed, no suggestion of any congressional power to determine jurisdiction was voiced in the earlier Convention deliberations. When a suggestion for congressional power over jurisdiction did briefly surface in the Randolph-Rutledge draft, the drafters carefully used the discretionary "may assign," as they also did when referring to congressional power to distribute judicial powers to inferior federal courts. Thus, the drafters fully understood the difference between the mandatory "shall" and the discretionary "may," and almost invariably used "shall" where a mandatory obligation was intended.

Id.; see also Amar, Two Tiers of Federal Jurisdiction, supra note214, at 231 ("These opening words of Article III are rich withmeaning. [T]hey establish that the judicial power of the United Statesmust be vested in the federal judiciary as a whole.").

(222.) Martin v. Hunter's Lessee, 14 U.S. (1 Wheat) 304, 328(1816). Martin stressed that "[t]he judicial power of the UnitedStates shall be vested (not may be vested) in one supreme court, and insuch inferior courts as congress may, from time to time, ordain andestablish." Id. Martin then discussed in further detail theobligatory nature of the usage of the word "shall" in ArticleIII. Id. at 328-30; see also Amar, Two Tiers of Federal Jurisdiction,supra note 214, at 215 n.41 ("The 'shall' language can beread as authorizing, rather than obliging, federal jurisdiction, but thebranch that is thereby empowered is the federal judiciary, not Congress.Thus, even if the Article III empowerment can be declined by the federaljudiciary, it must be honored by--and is therefore mandatoryvis-a-vis--Congress.").

(223.) In a letter to Thomas Jefferson, James Madison described" [t]he mutability of the laws of the States" as "aserious evil," whose "injustice ... has been so frequent andso flagrant as to alarm the most ste[a]dfast friends ofRepublicanism." 5 The Writings of James Madison 27 (Gaillard Hunted., 1904). He believed that the "evils" of the states"contributed more to that uneasiness which produced the Convention,and prepared the Public mind for a general reform" than those ofthe national government under the Articles of Confederation, and hethought that any "reform" that did not "make provisionfor private rights" as against the states "must be materiallydefective." Id. As Amar notes, the idea of a federal judiciary thatwould protect the Constitution against nonenforcement by state courts isconsistent with "the entire Federalist enterprise of establishing anew and stronger federal government[, which] was largely conceived of asa way to erect a strong bulwark of individual rights against overweeningstate governments." Amar, Two Tiers of Federal Jurisdiction, supranote 214, at 247 n.134.

(224.) Amar, Two Tiers of Federal Jurisdiction, supra note 214, at249 ("[T]he clear understanding of the Convention was that statecourt decisions must be reviewable by the national judiciary.").The Federalists did not trust the state courts. 3 Records, supra note217, at 207 (including the statement of Luther Martin). Madison stated,"Confidence can (not) be put in the State Tribunals as guardians ofthe National authority and interests. In all the States these are moreor less dependent] on the Legislatures." 2 id. at 27-28. Madisondid not want to give the entire task of upholding the Constitution overto the "biassed [sic] directions of a dependent [state]Judge." 3 THE WRITINGS OF JAMES MADISON, supra note 223, at 97.Edmund Randolph's warning was just as stark: "[T]he Courts ofthe States [cannot] be trusted with the administration of the Nationallaws." 2 Records, supra note 217, at 46. The Convention'sintention that appellate review of state-court decisions concerningfederal questions would lie in the federal courts is expressed clearlyin Madison's letter to Jefferson:

 We arrive at the agitated question whether the Judicial Authority of the U. S. [sic] be the constitutional resort for determining the line between the federal & State jurisdictions. Believing as I do that the General Convention regarded a provision within the Constitution for deciding in a peaceable & regular mode all cases arising in the course of its operation, as essential to an adequate System of Government] that it intended the Authority vested in the Judicial Department as a final resort in relation to the States, for cases resulting to it in the exercise of its functions, (the concurrence of the Senate chosen by the State Legislatures, in appointing the Judges, and the oaths & official tenures of these, with the surveillance of public Opinion, being relied on as guarantying their impartiality); and that this intention is expressed by the articles declaring that the federal Constitution & laws shall be the supreme law of the land, and that the Judicial Power of the U. S. [sic] shall extend to all cases arising under them: Believing moreover that this was the prevailing view of the subject when the Constitution was adopted & put into execution; that it has so continued thro[ugh] the long period which has elapsed; and that even at this time an appeal to a national decision would prove that no general change has taken place: thus believing I have never yielded my original opinion indicated in the "Federalist" N[o.] 39 to the ingenious reasonings of Col: [sic] Taylor ag[ainst] this construction of the Constitution.

9 The Writings of James Madison, supra note 223, at 141-42. Madisonexpressed this view once again in the Federalist Papers: "[I]ncontroversies relating to the boundary between the two [federal andstate] jurisdictions, the tribunal which is ultimately to decide, is tobe established under the general government." The Federalist No.39, at 245 (James Madison) (Clinton Rossiter ed., 1961); see also RaoulBerger, Congress v. the Supreme Court 286 n.6 (1969) ("[I]t wasonly 'initial,' original, not final, jurisdiction that was tobe 'left to the state courts,' subject to an appeal to theSupreme Court."). When ratification of the Constitution was beingdebated in Connecticut, Oliver Ellsworth explained that the federaljudiciary would be a check both on federal laws that extend beyondCongress's enumerated powers and state laws that impinge on federalpower:

 If the general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who to secure their impartiality, are to be made independent, will declare it to be void. On the other hand, if the states go beyond their limits, if they make a law which is a usurpation upon the federal government the law is void; and upright, independent judges will declare it to be so.

3 Records, supra note 217, at 240-41.

(225.) See Amar, Two Tiers of Federal Jurisdiction, supra note 214,at 245 n.130 (surveying the views of the Framers and showing that theydid not believe it was very important to vest the federal judiciary withdiversity jurisdiction). According to Madison, diversity jurisdictionwas not "a matter of much importance. Perhaps it might be left tothe state courts." 3 The Debates in the Several State Conventionson the Adoption of the Federal Constitution 533 (Jonathan Elliot ed., 2ded. 1901) [hereinafter Debates]. Edmund Randolph felt similarly, sayinghe did "not see any absolute necessity for ... [federal diversity]jurisdiction in these cases." 3 id. at 572. Other Framers felt thesame way, such as Edmund Pendleton, 3 id. at 549 ("[T]hosedecisions might be left to the state tribunals."); John Marshall, 3id. at 556 ("Were I to contend that [diversity jurisdiction] wasnecessary in all cases, and that the government without it would bedefective, I should not use my own judgment."); and James Wilson, 2id. at 491 ("[Diversity] jurisdiction, I presume, will occasionmore doubt than any other part...."). As Charles Lee assertedbefore the Supreme Court, "The jurisdiction given to the federalcourts in cases between citizens of different states, was, at the timeof the adoption of the constitution, supposed to be of very littleimportance to the people." Hepburn v. Ellzey, 6 U.S. (2 Cranch)445, 450 (1805).

(226.) U.S. Const, art. III, [section] 1 ("The Judges, both ofthe supreme and inferior Courts, shall hold their Offices during goodBehaviour, and shall, at stated Times, receive for their Services, aCompensation, which shall not be diminished during their Continuance inOffice."); Amar, Two Tiers of Federal Jurisdiction, supra note 214,at 235 ("By virtue of their tenure and salary guarantees, ArticleIII judges are constitutionally assured the structural independence tointerpret and pronounce the law impartially. No such constitutionalguarantee applies for state judges."). Alexander Hamilton assertedthat the proposed Constitution's salary provision "bears everymark of prudence and efficacy; and it may be safely affirmed that,together with the permanent tenure of their offices, it affords a betterprospect of their independence than is discoverable in the constitutionsof any of the States in regard to their own judges." The FederalistNo. 79, supra note 224, at 473-74 (Alexander Hamilton). This attitudealso found expression in early Supreme Court decisions. In Martin, theCourt observed that "[t]he constitution has presumed ... that stateattachments, state prejudices, state jealousies, and state interests,might sometimes obstruct, or control, or be supposed to obstruct orcontrol, the regular administration of justice." Martin v.Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 347 (1816). Five yearslater, it said:

 It would be hazarding too much to assert, that the judicatures of the States will be exempt from the prejudices by which the legislatures and people are influenced, and will constitute perfectly impartial tribunals. In many States the judges are dependent for office and for salary on the will of the legislature. The constitution of the United States furnishes no security against the universal adoption of this principle. When we observe the importance which that constitution attaches to the independence of judges, we are the less inclined to suppose that it can have intended to leave these constitutional questions to tribunals where this independence may not exist....

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 386-87 (1821).

(227.) U.S. CONST, art. II, [section] 2, cl. 2 ("[H]e shallnominate, and by and with the Advice and Consent of the Senate, shallappoint Ambassadors, other public Ministers and Consuls, Judges of thesupreme Court, and all other Officers of the United States, whoseAppointments are not herein otherwise provided for, and which shall beestablished by Law...."). Note that Article II lacks any analogousconferral of power on the President to nominate and appoint statejudges.

(228.) Amar, Two Tiers of Federal Jurisdiction, supra note 214, at236.

(229.) Id. At North Carolina's ratifying convention, ArchibaldMaclaine said:

 [I]f they be the judges of the local or state laws, and receive emoluments for acting in that capacity, they will be improper persons to judge of the laws of the Union. A federal judge ought to be solely governed by the laws of the United States, and receive his salary from the treasury of the United States. It is impossible for any judges, receiving pay from a single state, to be impartial in cases where the local laws or interests of that state clash with the laws of the Union, or the general interests of America.

4 Debates, supra note 225, at 172.

(230.) See U.S. Const, art. II, [section] 4 ("The President,Vice President and all civil Officers of the United States, shall beremoved from Office on Impeachment for, and Conviction of, Treason,Bribery, or other high Crimes and Misdemeanors." (emphasis added)).In The Federalist No. 81, Alexander Hamilton discussed

 the important constitutional check which the power of instituting impeachments ... would give [Congress] upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations.

The Federalist No. 81, supra note 224, at 485 (Alexander Hamilton);see also 3 Joseph Story, Commentaries on the Constitution of the UnitedStates [section] 1583, at 447 (1833) ("[J]udges of the state courtswould be wholly irresponsible to the national government for theirconduct in the administration of national justice ... Amar points outthat while the Article II impeachment mechanism ensured a degree ofaccountability for federal judges, "[t]he limitations on federalimpeachment are equally important: unlike state judges, Article IIIjudges may be removed from office only for misbehavior, and not merelybecause legislators dislike them for partisan and political reasons--orfor no reason." Amar, Two Tiers of Federal Jurisdiction, supra note214, at 237.

(231.) Martin, 14 U.S. (1 Wheat.) at 342 ("It was foreseenthat in the exercise of their ordinary jurisdiction, state courts wouldincidentally take cognizance of cases arising under the constitution,the laws, and treaties of the United States. Yet to all these cases thejudicial power, by the very terms of the constitution, is toextend.").

(232.) Id. at 346.

(233.) Id. at 347.

(234.) See Cohens v. Virginia, 19 U.S. (1 Wheat.) 264, 302 (1821)(reproducing Virginia's argument that "considering the natureof this case, and that a State is a party, the judicial power of theUnited States does not extend to the case, and that, therefore, thisCourt cannot take jurisdiction at all"). The petitioner rejectedthis claim, asserting that "[t]his is a case arising under theconstitution and laws of the Union, and therefore the jurisdiction ofthe federal Courts extends to it by the express letter of theconstitution, and the case of Martin v. Hunter has determined that thisjurisdiction may be exercised by this Court in an appellate form."Id. at 345.

(235.) Id. at 386.

(236.) Id. at 386-87.

(237.) See U.S. CONST, art. III, [section] 1, cl. 1.

(238.) Steven G. Calabresi & Gary Lawson, The UnitaryExecutive, Jurisdiction Stripping, and the Hamdan Opinions: A TextualistResponse to Justice Scalia, 107 COLUM. L. Rev. 1002, 1005 (2007)(footnote omitted).

(239.) Id. at 1006 ("Similarly, the Vesting Clause of ArticleIII vests the federal judiciary with all of the federal judicial power,and by designating the Supreme Court as 'Supreme' and otherfederal tribunals as 'inferior to' the Supreme Court, theConstitution requires the Supreme Court to have supervisory power overall subordinates within its department."); see U.S. Const, art.III, [section] 1.

(240.) Calabresi & Lawson, supra note 238, at 1006.

(241.) U.S. CONST. art. III, [section] 1 (emphasis added).

(242.) Id. art. II, [section] 1, cl. 1 (emphasis added).

(243.) Id. art. II, [section] 2, cl. 2 (emphasis added); see alsoCalabresi & Lawson, supra note 238, at 1007 (arguing that just as"an [executive] officer can only be 'inferior' forpurposes of the Appointments Clause if he or she has an effectivesuperior ... a federal court can be an 'inferior' court onlyif it is subject to review and correction by a superior" (footnotesomitted)).

(244.) U.S. Const, art. II, [section] 2, cl. 2.

(245.) 520 U.S. 651, 662 (1997) ("Generally speaking, the term'inferior officer' connotes a relationship with some higherranking officer or officers below the President: Whether one is an'inferior' officer depends on whether he has asuperior.").

(246.) Professors Calabresi and Lawson disagree with Amar on thescope of congressional power to alter the Supreme Court's appellatejurisdiction pursuant to the Exceptions and Regulations Clause. See U.S.CONST. art. III, [section] 2, cl. 2 ("In all [nonoriginaljurisdiction cases], the supreme Court shall have appellateJurisdiction, both as to Law and Fact, with such Exceptions, and undersuch Regulations as the Congress shall make."). Amar asserts thatCongress may "shift final resolution of any cases within theSupreme Court's appellate jurisdiction to any other Article IIIcourt that Congress may create." Amar, Two Tiers of FederalJurisdiction, supra note 214, at 230. Calabresi and Lawson, on the otherhand, say that Congress cannot strip the Supreme Court of any of itsoriginal or appellate jurisdiction: "Congress [may] move cases backand forth between the Supreme Court's original and appellatejurisdiction but not ... remove cases from that jurisdictionaltogether." Calabresi & Lawson, supra note 238, at 1008. Thedifference between these two views rests on whether one reads ArticleIII, Section 1 as vesting "[t]he judicial Power of the UnitedStates," U.S. Const, art. III, [section] 1, in the Supreme Courtand inferior federal courts individually and severally, or in a singleunit, consisting of the Supreme Court and inferior courts, within whichCongress may reallocate appellate jurisdiction as it pleases. This is achallenging interpretive question, but Calabresi and Lawson'spersuasive analogy between the symmetric relationships of "aPresident," id. art. II, [section] 1, cl. 1 (emphasis added), to"inferior [executive] Officers," id. art. II, [section] 2, cl.2 (emphasis added), and "one supreme Court" to "inferiorCourts," id. art. III, [section] 1 (emphasis added), supportsreading Article III to give the Supreme Court supervisory authority overall cases in inferior federal courts. Either way, the domestic-relationsexception, as applied to federal questions, is unconstitutional to theextent it would divest all federal courts, Supreme and inferior, ofjurisdiction over federal questions involving domestic-relations issues.

(247.) U.S. Const, art. III, [section] 1.

(248.) Id.

(249.) Id. art. II, [section] 1, cl. 1.

(250.) 521 U.S. 898, 922-23 (1997) ("[U]nity in the FederalExecutive ... would be shattered, and the power of the President wouldbe subject to reduction, if Congress could act as effectively withoutthe President as with him, by simply requiring state officers to executeits laws."). See generally The Federalist No. 70, supra note 224,at 421 (Alexander Hamilton) (arguing for a unitary executive); Steven G.Calabresi & Saikrishna B. Prakash, The President's Power ToExecute the Laws, 104 Yale L.J. 541 (1994) (arguing that theConstitution creates a unitary executive).

(251.) For more on the "unitary executive" theory, see,for example, Amar, America's Constitution, supra note 214, at131-32; John W. Dean, Broken Government: How Republican Rule Destroyedthe Legislative, Executive, and Judicial Branches 102 (2007); Steven G.Calabresi & Kevin H. Rhodes, The Structural Constitution: UnitaryExecutive, Plural Judiciary, 105 Harv. L. Rev. 1153, 1165-68 (1992);Steven G. Calabresi & Nicholas Terrell, The Fatally Flawed Theory ofthe Unbundled Executive, 93 MINN. L. Rev. 1696, 1696-97 (2009); and LeeS. Liberman, Morrison v. Olson: A Formalistic Perspective on Why theCourt Was Wrong, 38 Am. U. L. Rev. 313, 315 (1989). See also sourcescited supra notes 238, 250.

(252.) U.S. Const, art. III, [section] 1 (emphasis added).

(253.) Morrison v. Olson, 487 U.S. 654, 705 (1988) (Scalia, J.,dissenting) (discussing executive power).

(254.) Printz, 521 U.S. at 922-23.

(255.) Id. at 923.

(256.) See sources cited supra note 104.

(257.) See, e.g., Younger v. Harris, 401 U.S. 37, 44 (1971)("This underlying reason for restraining courts of equity frominterfering with criminal prosecutions is reinforced by an even morevital consideration, the notion of 'comity,' that is, a properrespect for state functions, a recognition of the fact that the entirecountry is made up of a Union of separate state governments, and acontinuance of the belief that the National Government will fare best ifthe States and their institutions are left free to perform theirseparate functions in their separate ways."); La. Power & LightCo. v. City of Thibodaux, 360 U.S. 25, 28 (1959) (stating thatabstention "reflects] a deeper policy derived from ourfederalism"); R.R. Comm'n v. Pullman Co., 312 U.S. 496, 500(1941) ("Few public interests have a higher claim upon thediscretion of a federal chancellor than the avoidance of needlessfriction with state policies.").

(258.) See, e.g., Pullman, 312 U.S. at 501 (describing abstentionas a matter of "wise discretion" that rests on"considerations of policy" (quoting Cavanaugh v. Looney, 248U.S. 453, 457 (1919)))

(259.) For example, Pullman abstention enjoins federal courts fromadjudicating cases only for long enough to give state courts enough timeto determine whether they can be addressed on state-law grounds. Id.("If there was no warrant in state law for the Commission'sassumption of authority there is an end of the litigation; theconstitutional issue does not arise.... Or, if there are difficulties inthe way of this procedure of which we have not been apprised, the issueof state law may be settled by appropriate action on the part of theState to enforce obedience to the order."). Abstention is onlywarranted when state courts can resolve the dispute "with fullprotection of the constitutional claim," id., and federal districtcourts may retain jurisdiction "pending a [state court]determination of proceedings, to be brought with reasonablepromptness," id. at 501-02. The Younger abstention only preventsfederal courts from "stayfing] or enjoin[ing] pending state-courtproceedings except under special circ*mstances," Younger, 401 U.S.at 41, or granting "declaratory relief ... when a prosecutioninvolving the challenged statute is pending in state court at the timethe federal suit is initiated," id. at 41 n.2, not fromadjudicating the underlying merits issues once state court proceedingshave concluded. Likewise, the Colorado River abstention requires federalcourts to dismiss cases when parallel proceedings are being carried outin state courts only in certain "limited" circ*mstances. Colo.River Water Conservation Dist. v. United States, 424 U.S. 800, 818(1976) ("[T]he circ*mstances permitting the dismissal of a federalsuit due to the presence of a concurrent state proceeding for reasons ofwise judicial administration," though "considerably morelimited than the circ*mstances appropriate for abstention ... donevertheless exist."). It too does not prevent federal courts fromadjudicating cases once state proceedings have concluded. Under theBurford abstention, federal courts abstain out of "proper regardfor the rightful independence of state governments in carrying out theirdomestic policy," Burford v. Sun Oil Co., 319 U.S. 315, 318 (1943)(quoting Pennsylvania v. Williams, 294 U.S. 176, 185 (1935)), but"ultimate review of the federal questions is fully preserved,"id. at 334. Finally, the Thibodaux abstention merely permits statecourts to construe state statutes concerning "matter[s] close tothe political interests of a State" before federal courts weigh in;"[t]here is only postponement of decision for its bestfruition." Thibodaux, 360 U.S. at 29.

(260.) Both of these rationales are central to thedomestic-relations exception. See supra Section II.B.

(261.) U.S. CONST. amend. XIV, [section] 1.

(262.) See, e.g., Nat'l Cable & Telecomms. Ass'n v.Brand X Internet Servs., 545 U.S. 967, 983-84 (2005) (recognizing thatstate courts are not bound in interpreting state law by priorfederal-court interpretations); Cambria-Stoltz Enters, v. TNT Invs., 747A.2d 947, 952 (Pa. Super. Ct. 2000) (holding that Pennsylvania statecourts are not bound by the Third Circuit's construction of statelaw). Under this principle, lower federal court opinions should bereversed if an intervening state-court decision has changed the statelaw. See Nolan v. Transocean Air Lines, 365 U.S. 293, 295-96 (1961)(setting aside a judgment of a lower federal court because the relevantstate law had changed since the U.S. district court handed down itsruling); Huddleston v. Dwyer, 322 U.S. 232, 236 (1944) ("[A]judgment of a federal court ruled by state law and correctly applyingthat law as authoritatively declared by the state courts when thejudgment was rendered, must be reversed on appellate review if in themeantime the state courts have disapproved of their former rulings andadopted different ones."); Vandenbark v. Owens-III. Glass Co., 311U.S. 538, 543 (1941) ("[N]isiprius and appellate tribunals alikeshould conform their orders to the state law as of the time of theentry. Intervening and conflicting decisions will thus cause thereversal of judgments which were correct when entered.").

Federal courts exercising diversity jurisdiction are supposed toresolve state-law questions as would state courts. See Guar. Tr. Co. ofN.Y. v. York, 326 U.S. 99, 109 (1945) ("[I]n all cases where afederal court is exercising jurisdiction solely because of the diversityof citizenship of the parties, the outcome of the litigation in thefederal court should be substantially the same, so far as legal rulesdetermine the outcome of a litigation, as it would be if tried in aState court."); Benjamin C. Glassman, Making State Law in FederalCourt, 41 Gonz. L. Rev. 237, 238 (2006) ("[T]he task of the federalcourt is to predict how the state supreme court would decide theissue."); see also Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78(1938) ("Except in matters governed by the Federal Constitution orby Acts of Congress, the law to be applied in any case is the law of theState.").

(263.) See Amar, Two-Tiered Structure, supra note 214, at 1530-31.

(264.) See Amar, Two Tiers of Federal Jurisdiction, supra note 214,at 235-37; supra Section III.A.2.

(265.) See Amar, Two Tiers of Federal Jurisdiction, supra note 214,at 230-37.

(266.) Ordinarily, litigants can elect to adjudicatefederal-question disputes in federal forums. The plaintiff can file infederal court, see 28 U.S.C. [section] 1331 (2012), while the defendantcan remove a case to federal court, see, e.g., id. [section] 1441(a).

(267.) See, e.g., Daniels v. Allen, 344 U.S. 443, 492 (1953)("We have repeatedly indicated that a denial of certiorari meansonly that, for one reason or another which is seldom disclosed, and notinfrequently for conflicting reasons which may have nothing to do withthe merits and certainly may have nothing to do with any view of themerits taken by a majority of the Court, there were not four members ofthe Court who thought the case should be heard."); United States v.Carver, 260 U.S. 482, 490 (1923) ("The denial of a writ ofcertiorari imports no expression of opinion upon the merits of the case,as the bar has been told many times.").

(268.) Supreme Court Case Selections Act of 1988, Pub. L. No.100-352, [section] 3, 102 Stat. 662, 662 (codified at 28 U.S.C.[section] 1257).

(269.) Act of Feb. 13, 1925, ch. 229, 43 Stat. 936 (codified asamended in scattered sections of 28 U.S.C.).

(270.) Arthur D. Heilman, The Business of the Supreme Court Underthe Judiciary Act of 1925; The Plenary Docket in the 1970's, 91Harv. L. Rev. 1711, 1712 (1978) (describing the status quo prior to theJudiciary Act of 1925, a description that also fits the pre-1988 Actstatus quo); see Felix Frankfurter & James M. Landis, The Businessof the Supreme Court : A Study in the Federal Judicial System 203-16(1928).

(271.) Heilman, supra note 270, at 1713.

(272.) Unlike denials of certiorari, summary dispositions haveprecedential value and are binding on lower courts. See Hicks v.Miranda, 422 U.S. 332, 344-45 (1975) ("[T]he lower courts are boundby summary decisions by this Court 'until such time as the Courtinforms [them] that [they] are not.'" (second and thirdalterations in original) (quoting Doe v. Hodgson, 478 F.2d 537, 539 (2dCir. 1973))). For a discussion of the different purposes that summarydispositions can serve, see Alex Hemmer, Courts as Managers: AmericanTradition Partnership v. Bullock and Summary Disposition at the RobertsCourt, 122 Yale L.J. Online 209 (2013).

(273.) Under current law, cases brought in state court can be heardin the federal judiciary only through a writ of certiorari. See 28U.S.C. [section] 1257; id. [section][section] 1441-1455 (authorizingremoval).

(274.) See sources cited supra note 259.

(275.) Ankenbrandt v. Richards, 504 U.S. 689, 700 (1992).

(276.) Id. Congress had presumably revised the jurisdictionalstatutes, the Court said, "with full cognizance of the Court'snearly century-long interpretation of the prior statutes, which hadconstrued the statutory diversity jurisdiction to contain an exceptionfor certain domestic relations matters." Id. "With respect tosuch a longstanding and well-known construction of the diversitystatute, and where Congress made substantive changes to the statute inother respects," the Court reasoned, "we presume, absent anyindication that Congress intended to alter this exception, ... thatCongress 'adopt[ed] that interpretation' when it reenacted thediversity statute." Id. at 700-01 (quoting Lorillard v. Pons, 434U.S. 575, 580 (1978)).

(277.) The diversity-jurisdiction statute has been revised eighttimes since 1948. See Act of July 26, 1956, Pub. L. No. 84-808, 70 Stat.658, amended by Act of July 25, 1958, Pub. L. No. 85-554, [section] 2,72 Stat. 415, 415, amended by Act of Aug. 14, 1964, Pub. L. No. 88-439,[section] L 78 Stat. 445, 445, amended by Act of Oct. 21, 1976, Pub. L.No. 94-583, [section] 3, 90 Stat. 2891, 2891, amended by Act of Nov. 19,1988, Pub. L. No. 100-702, [section][section] 201(a), 202(a), 203(a),102 Stat. 4646, 4646, amended by Act of Oct. 19, 1996, Pub. L. No.104-317, [section] 205(a), 110 Stat. 3847, 3850, amended by Act of Feb.18, 2005, Pub. L. No. 109-2, [section] 4(a), 119 Stat. 4, 9-12, amendedby Act of Dec. 7, 2011, Pub. L. No. 112-63, [section][section] 101-102,125 Stat. 758, 758-59. The federal-question jurisdiction statute hasbeen revised three times since 1948. See sources cited infra note 305.

(278.) See, e.g., FDA v. Brown & Williamson Tobacco Corp., 529U.S. 120, 144 (2000) ("Under these circ*mstances, it is evidentthat Congress' tobacco-specific statutes have effectively ratifiedthe FDA's long-held position...."); Lorillard, 434 U.S. at 580("Congress is presumed to be aware of an administrative or judicialinterpretation of a statute and to adopt that interpretation when itre-enacts a statute without change."); Albemarle Paper Co. v.Moody, 422 U.S. 405, 414 n.8 (1975) (explaining that Congress intendedto ratify a prevailing judicial construction of Title VII of the CivilRights Act of 1964 when it enacted a later statute); Flood v. Kuhn, 407U.S. 258, 283-84 (1972) ("We continue to be loath ... to overturnthose cases judicially when Congress, by its positive inaction, hasallowed those decisions to stand for so long and, far beyond mereinference and implication, has clearly evinced a desire not todisapprove them legislatively."); Nat'l Labor Relations Bd. v.Gullett Gin Co., 340 U.S. 361, 366 (1951) ("Under thesecirc*mstances it is a fair assumption that by reenacting withoutpertinent modification the provision with which we here deal, Congressaccepted the construction placed thereon by the Board and approved bythe courts."); Nat'l Lead Co. v. United States, 252 U.S. 140,146-47 (1920) ("The reenacting of the drawback provision fourtimes, without substantial change, ... amounts to an implied legislativerecognition and approval of the executive construction of the statute... for Congress is presumed to have legislated with knowledge of suchan established usage of an executive department of thegovernment."); United States v. Smith, 521 F.2d 957, 968 n.24 (D.C.Cir. 1975) ("Congress, which considered the FRE at great length,can be presumed to have been aware of the interpretation of the businessrecords exception current in the courts when it approved Rule803(6)."); Carroll Elec. Co. v. Snelling, 62 F.2d 413, 416 (1stCir. 1932) ("[T]his considered opinion of an experienced anddistinguished judge may fairly be regarded as adopted by the lawmakingbody. We think that this construction was ... adopted byCongress.").

(279.) 2B Norman Singer & Shambie Singer, Sutherland Statutesand Statutory Construction [section] 49:8 (7th ed. 2014).

(280.) Id. (footnote omitted).

(281.) Fed. Base Ball Club v. Nat'l League, 259 U.S. 200,208-09 (1922).

(282.) Flood, 407 U.S. at 283-84.

(283.) Brown & Williamson, 529 U.S. at 144.

(284.) Id. at 143.

(285.) See, e.g., Sosna v. Iowa, 419 U.S. 393, 409-10 (1975)(upholding a state statute imposing a one-year residency requirement forpersons petitioning for divorce as consistent with the Due ProcessClause); Boddie v. Connecticut, 401 U.S. 371, 380-83 (1971) (strikingdown a law conditioning the right to obtain a divorce on ability to paycourt fees as inconsistent with the Due Process Clause with respect tothe indigent).

(286.) See, e.g., Troxel v. Granville, 530 U.S. 57, 75 (2000)(striking down a state visitation rights statute on the grounds that itviolated the petitioner's substantive "due process right tomake decisions concerning the care, custody, and control of herdaughters").

(287.) See, e.g., Michael H. v. Gerald D., 491 U.S. 110, 130 (1989)(holding a state paternity statute consistent with the Due ProcessClause); Clark v. Jeter, 486 U.S. 456, 465 (1988) (striking down, underthe Equal Protection Clause, a state statute of limitations on paternityactions).

(288.) See, e.g., Trimble v. Gordon, 430 U.S. 762, 776 (1977)(striking down, under the Equal Protection Clause, a state law thatprohibited illegitimate children from inheriting from their fathers byintestate succession); Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164,175-76 (1972) (holding that a state workman's compensation law thatdenied rights to a dependent's unacknowledged illegitimate childrenviolated the Equal Protection Clause).

(289.) See, e.g., Chafin v. Chafin, 133 S. Ct. 1017, 1027-28 (2013)(wading into a custody dispute to decide a question of Article IIImootness); Palmore v. Sidoti, 466 U.S. 429, 434 (1984) (reversing astate court's grant of custody to the child's father becausethe state court had considered the possible injurious effects of privateracial bias on the child in violation of the Equal Protection Clause);Santosky v. Kramer, 455 U.S. 745, 769 (1982) (holding that under the DueProcess Clause, a state must support its allegations by at least a clearand convincing evidence standard before permanently terminating parentalrights); Smith v. Org. of Foster Families for Equal. & Reform, 431U.S. 816, 856 (1977) (upholding, under the Due Process Clause, stateregulations concerning the removal of foster children from fosterhomes); Stanley v. Illinois, 405 U.S. 645, 658-59 (1972) (striking down,under the Due Process Clause, a state law declaring children ofunmarried fathers to be state wards upon the death of their mother). In2013, the Court resolved a child-custody dispute on statutory grounds.Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2565 (2013) (interpretinga federal statute relating to custody proceedings involving AmericanIndian children). It has also resolved a custody dispute on treatygrounds. Abbott v. Abbott, 560 U.S. 1, 22 (2010) (upholding a lowercourt ruling against a father seeking the return of his child under atreaty).

(290.) See, e.g., Orr v. Orr, 440 U.S. 268, 283 (1979) (strikingdown a state alimony law that imposed obligations on husbands but notwives as violative of the Equal Protection Clause).

(291.) See, e.g., Lehr v. Robertson, 463 U.S. 248, 265, 267 (1983)(holding that the failure to notify a putative father of pendingadoption proceedings did not violate the Due Process Clause or EqualProtection Clause where the father never sought to establish asubstantial relationship with his child); Caban v. Mohammed, 441 U.S.380, 394 (1979) (striking down, under the Equal Protection Clause, astate law that let an unwed mother--but not an unwed father--block theadoption of their child); Quilloin v. Walcott, 434 U.S. 246, 256 (1978)(upholding a state law prohibiting the father of an illegitimate child,who had never attempted to legitimate said child, from contesting thechild's adoption by the mother's husband under the Due ProcessClause and Equal Protection Clause).

(292.) See, e.g., Zablocki v. Redhail, 434 U.S. 374, 390-91 (1978)(striking down a state statute requiring noncustodial parents who areobligated to pay child support to receive a court approval order beforemarrying in or out of state). One might think that Loving v. Virginia,388 U.S. 1 (1967), would be on point. However, Loving involved acriminal statute, id. at 4, and "[c]riminal cases are and alwayshave been understood as being cases in law or equity both in England andin the United States," Calabresi & Sinel, supra note 25,(manuscript at 5). Likewise, Moore v. City of East Cleveland, 431 U.S.494 (1977), involved a challenge to a criminal ordinance limitingoccupancy of a dwelling to a nuclear family, id. at 496-97, so Moore,too, is not the sort of case to which the domestic-relations exceptionmight apply.

(293.) See, e.g., Troxel v. Granville, 530 U.S. 57 (2000); MichaelH. v. Gerald D., 491 U.S. 110 (1989); Palmore, 466 U.S. 429; Orr, 440U.S. 268.

(294.) See, e.g., Chafin, 133 S. Ct. 1017; Zablocki, 434 U.S. 374;Org. of Foster Families for Equal. & Reform, 431 U.S. 816; Sosna v.Iowa, 419 U.S. 393 (1975); Boddie v. Connecticut, 401 U.S. 371 (1971)

(295.) 401 U.S. at 382-83.

(296.) 434 U.S. at 388-91.

(297.) 491 U.S. at 125.

(298.) Id. at 124.

(299.) Troxel v. Granville, 530 U.S. 57, 75 (2000).

(300.) Trimble v. Gordon, 430 U.S. 762, 776 (1977).

(301.) Orr v. Orr, 440 U.S. 268, 271 (1979).

(302.) Palmore v. Sidoti, 466 U.S. 429, 430-31, 434 (1984).

(303.) Id. at 433.

(304.) See 2B Singer & Singer, supra note 279, [section] 49:8.

(305.) Act of July 25,1958, Pub. L. No. 85-554, [section] U 72Stat. 415, 415, amended by Act of Oct. 21,1976, Pub. L. No. 94-574,[section] 2, 90 Stat. 2721, 2721, amended by Act of Dec. 1, 1980, Pub.L. No. 96486, [section] 2(a), 94 Stat. 2369, 2369; Ankenbrandt v.Richards, 504 U.S. 689, 700 (1992).

(306.) See Barbara Ann Atwood, Domestic Relations Cases in FederalCourt: Toward a Principled Exercise of Jurisdiction, 35 Hastings L.J.571, 588 (1984).

(307.) Congress may only change the law via bicameralism andpresentment. See, e.g., U.S. Const. art. I, [section] 7, els. 2-3;Clinton v. City of New York, 524 U.S. 417, 438 (1998); INS v. Chadha,462 U.S. 919, 945-51 (1983).

(308.) See Ankenbrandt, 504 U.S. at 700 (asserting that Congressintended "no changes of law or policy ... from [these] changes oflanguage" (quoting Fourco Glass Co. v. Transmirra Prods. Corp., 353U.S. 222, 227 (1957))).

(309.) Atwood, supra note 306, at 588 (emphasis added).

(310.) Phillips, Nizer, Benjamin, Krim & Ballon v. Rosenstiel,490 F.2d 509, 514 (2d Cir. 1973).

(311.) 504 U.S. at 700.

(312.) Andrews v. Andrews, 188 U.S. 14, 32 (1903), abrogated bySherrer v. Sherrer, 334 U.S. 343 (1948).

(313.) Rush, supra note 22, at 8-9.

(314.) Moore, supra note 22, at 879; see also id. at 882 ("Themere fact that a claimed violation of constitutional rights took placein a domestic relations context should not bar a federal court fromreviewing such constitutional issues.").

(315.) Perhaps recognizing this, at least one court has refused toapply the exception to a federal question notwithstandingdocket-congestion threats. See, e.g., Crouch v. Crouch, 566 F.2d 486,488 (5th Cir. 1978) ("Because none of the rationales for thedomestic relations exception obtain in this case -with the possibleexception of congested federal dockets-we uphold the districtcourt's exercise of jurisdiction and proceed to determine themerits.").

(316.) Hooks v. Hooks, 771 F.2d 935, 942 (6th Cir. 1985). Thisqualification is unremarkable, as federal courts generally are notsupposed to resolve issues of state law; cf. Perry v. Schwarzenegger,628 F.3d 1191, 1193 (9th Cir. 2011) (certifying a question of state lawto the California Supreme Court on which no controlling precedentexisted).

(317.) Burt Neuborne, The Myth of Parity, 90 Harv. L. Rev. 1105,005-06 (1977).

(318.) Id. at 1131.

(319.) Hart, supra note 174, at 1363-64.

(320.) Id. at 1364; see also U.S. Const, art. Ill, [section] 2, cl.2.

(321.) Amar, Two Tiers of Federal Jurisdiction, supra note 214, at216.

(322.) Hart, supra note 174, at 1365.

(323.) Amar, Two Tiers of Federal Jurisdiction, supra note 214, at216.

(324.) Neuborne, supra note 317, at 1105.

(325.) Stone v. Powell, 428 U.S. 465, 494 n.35 (1976).

(326.) Coleman v. Thompson, 501 U.S. 722, 759 (1991) (Blackmun, J.,dissenting).

(327.) Id.

(328.) U.S. Const, art. VI, cl. 2.

(329.) The FEDERALIST No. 44, supra note 224, at 286 (JamesMadison).

(330.) Coleman, 501 U.S. at 759 (Blackmun, J., dissenting).

(331.) Id.; see also William J. Brennan, Jr., Federal Habeas Corpusand State Prisoners: An Exercise in Federalism, 7 Utah L. Rev. 423, 442(1961) ("Federalism is a device for realizing the concepts ofdecency and fairness which are among the fundamental principles ofliberty and justice lying at the base of all our civil and politicalinstitutions.").

(332.) Coleman, 501 U.S. at 759 (Blackmun, J., dissenting).

(333.) Id.

(334.) See V.L. v. E.L., No. 15-648, 2016 WL 854160 (U.S. Mar. 7,2016) (per curiam).

(335.) Though this Note addresses only the domestic-relationsexception, its analysis also carries heavy implications for thelawfulness of other doctrines that might be invoked to limit the scopeof federal-question jurisdiction, including the probate exception tofederal jurisdiction. See Markham v. Allen, 326 U.S. 490, 494 (1946)("[A] federal court has no jurisdiction to probate a will oradminister an estate...."). Notably, in 2006, the Supreme Courtnarrowed the scope of the probate exception much as it had earliernarrowed the domestic-relations exception, expressly echoingAnkenbrandt. Marshall v. Marshall, 547 U.S. 293, 311 (2006) (confiningthe probate exception to "the general principle that, when onecourt is exercising in rem jurisdiction over a res, a second court willnot assume in rem jurisdiction over the same res"). Under thereasoning provided in this Note, applying the probate exception tofederal questions would likely be unlawful, although this is ultimatelya question for another day.

(336.) Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

Yale Law School, J.D. expected 2016. I am grateful to Akhil ReedAmar, Robert Black, Philip C. Bobbitt, Nicholas Parrillo, Allison AnnaTait, and Alec Webley for their help, support, and feedback. I alsothank Jane Ostrager, Hyungwoo Lee, Marissa Roy, Elizabeth Ingriselli,Charlie Bridge, Rebecca Lee, Michael Clemente, and the extraordinaryeditors of the Yale Law Journal for their invaluable suggestions andtireless efforts over the course of the production process. All errorsare entirely my own. This Note is dedicated to Steven G. Calabresi, theepitome of a wise, warmhearted, and generous mentor, from whom I havelearned so much and still have so much to learn.

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