Do Federal Courts Even Have the Authority to Rule on Same-sex Marriage?

Lyle Denniston, the constitutional literacy adviser for the National Constitution Center, looks at a new development in the same-sex marriage lawsuits that could bar federal courts from deciding the issue.


“I do not think the federal courts have…jurisdiction to decide any pure gay marriage cases under current law. The reason for this is because there is a longstanding domestic relations exception to federal jurisdiction that goes back to the Founding of the Republic such that pure marriage law cases simply cannot be heard in federal court….The federal courts…should recognize that their federal question jurisdiction is limited to cases in law and equity and that it does not also extend to matrimonial causes.”

– Steven G. Calabresi, a law professor at Northwestern University School of Law, in a research paper that will become a law review article. The paper is titled “The Gay Marriage Cases and Federal Jurisdiction.” By “pure” cases, he meant straightforward tests of same-sex marriage bans that were uncluttered by side issues. The current round of cases do fit into that category.

“For over a century, the United States Supreme Court, as well as lower federal courts, have concluded that actions concerning domestic relations, such as those deciding the status of marriage, are not properly brought in federal court but are conclusively within the authority of state courts. …Based upon compelling interests of federalism, this case should be dismissed as improperly brought here, rather than in the courts of South Carolina.”

– Excerpt from a legal brief filed last week by South Carolina’s Attorney General, Alan Wilson, in a federal trial court in Columbia. That court is weighing a constitutional challenge to the state’s ban on same-sex marriage.


When Americans were debating in 1788 whether to ratify the new Constitution, some opponents of the basic document worried about several things, among them that Article III would create such powerful federal courts that state courts would wither away. There is a modern echo of that in new research by several scholars, raising the question whether the federal courts are exceeding their powers by deciding cases on the constitutionality of state bans on same-sex marriage. The theory is now being tested in court in an actual same-sex marriage case.

So far, in a wave of recent federal trial and appeals court decisions – most of which have struck down state prohibitions on gay and lesbian marriage – not one has ruled that the issue was beyond the courts’ constitutional authority. Those courts have considered one issue about their power to decide under Article III: do same-sex couples who wish to get married, or have their existing marriages officially recognized, have a sufficient legal claim that entitles them to sue to challenge the denial of marriage or recognition?

That is the issue, in legal parlance, of “standing” or “standing to sue.” Because the Constitution gives federal courts the power only to decide live “cases or controversies,” and not mere theoretical or abstract legal disputes, those courts must always ask themselves whether someone who sues has something real at stake, and that the courts have the capacity to remedy any harm that the judges do find.

That is a question of constitutional jurisdiction, under Article III. But there are also some limits on federal courts’ authority that they have devised themselves, outside the Constitution. Those limitations are said to derive from the exercise of “prudence” – the cautious use of judicial authority so as not to get in the way of the powers of other branches of government, including state governments.

Just last year, when the Supreme Court did decide a marriage case, striking down a key part of the federal Defense of Marriage Act, the court reminded lower courts to keep the two kinds of jurisdiction separated. There is a clear distinction, Justice Anthony M. Kennedy wrote, “between two principles: the jurisdictional requirements of Article III and the prudential limits on its exercise….The latter are essentially matters of judicial self-governance…The court has kept these two strands separate.” Article III sets definite limits on court power, Kennedy added, while “prudential” limits “are more flexible.”

It is true, as law professor Steven Calabresi and others who share his views on federal court authority to decide same-sex marriage cases have written, that those courts have long recognized an exception to their jurisdiction when it comes to “domestic relations” – or, more broadly, issues of “family law.”

The Supreme Court said so as long ago as 1859, in the case of Barber v. Barber. In a more modern decision, the 1992 ruling in Ankenbrandt v. Richards, however, the Supreme Court made clear that the Constitution itself did not require that exception; rather, it was a creation of the courts themselves.

In that case, the Justices declined to cast aside the exception, but they did emphasize that it only applied to three kinds of family law questions: divorce, alimony and child custody. The 1859 decision, the court said in 1992, “did not intend to strip the federal courts of authority to hear cases arising from the domestic relations of persons unless they seek the granting or modification of a divorce or alimony decree.”

It went on to note that the exception had been extended by the court in an 1890 decision, In re Burrus, to child custody disputes.   But that, it said, was as far as the exception reached, declaring “that the domestic relations exception encompassed only cases involving the issuance of a divorce, alimony, or child custody decree.”

A more famous decision of the court, in 2004, suggested in passing that, “in general, it is appropriate for the federal courts to leaves delicate issues of domestic relations to the state courts.” That was the decision in Elk Grove School District v. Newdow, involving an avowed atheist who was attempting to prevent his daughter from reciting the phrase, “under God,” in the Pledge of Allegiance at her public school. The court ruled that the child’s mother had control of the child, so Michael Newdow could not sue the school system. The Justices denied his “standing” to sue.

Scholars who now seek to broaden the domestic relations exception, so that it would bar the federal courts from deciding same-sex marriage claims, focus a good deal on the Justices’ comments in the Newdow case about staying away from domestic relations disputes. But the more expansive of those comments in that case actually were traced back to a statement made in passing in the Ankenbrandt decision in 1992 that was not essential to that decision and thus did not disturb the limits that ruling had put on the need to stand aside from family law issues that raised important federal issues.

Facing major disputes over family law in recent years, the Supreme Court has not chosen to stand aside, despite what it said in the Newdow case. One of its most important rulings in this field came in 1989 case – Michael H. v. Gerald D., a child visitation case – declaring that a biological father could not claim parental rights when the child was born after the mother had married another man. And, in another significant case, the 2000 decision in Troxler v. Granville, the court protected the right of a child’s parents to resist demands for visitation by grandparents in the midst of family disharmony.

In the new round of same-sex marriage cases, federal courts have not failed to exercise jurisdiction, with most of them concluding that the right to marry is a fundamental right under the Constitution, and cannot be denied to same-sex couples solely because of their sexual identities. The domestic relations exception has gone entirely unmentioned in that string of rulings.

It is not surprising when scholars attempt to read Supreme Court rulings more broadly than what the court actually said, because that is a way to get at larger potential implications. To test those implications in the real world, there has to be a genuine lawsuit. Now, there is one. Just last week, what had been academic conjecture became a live issue in a federal court, as South Carolina officials raised the claim that the “domestic relations” exception took away those courts’ authority to hear and decade a challenge to a same-sex marriage ban. The scholars will be watching, and so will the nation.

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