National Family Civil Rights Center Amicus Brief

8/9/2019 National Family Civil Rights Center Amicus Brief

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NO. 14-562

Supreme Court of the United States ____________

V ALERIA T ANCO, et al.,

Petitioners,

v.

WILLIAM H ASLAM, et al.,

Respondents.

_____________

On Writ of Certiorari to the On Writ of Certiorari to the On Writ of Certiorari to the On Writ of Certiorari to the

US Court of Appeals for the SixthUS Court of Appeals for the SixthUS Court of Appeals for the SixthUS Court of Appeals for the Sixth Circuit Circuit Circuit Circuit

_____________ _____________ _____________ _____________

BRIEFBRIEFBRIEFBRIEF AMICUS AMICUS AMICUS AMICUS CURIAE CURIAE CURIAE CURIAE OFOFOFOF THETHETHETHE NATIONALNATIONALNATIONALNATIONAL FAMILY FAMILY FAMILY FAMILY CIVILCIVILCIVILCIVIL RIGHTSRIGHTSRIGHTSRIGHTS CENTERCENTERCENTERCENTER

ININININ SUPPORTSUPPORTSUPPORTSUPPORT OFOFOFOF PETITIONERSPETITIONERSPETITIONERSPETITIONERS ____________ ____________ ____________ ____________

DOUGLAS J. C ALLAHAN Counsel of Record

N AT’L F AMILY CIVIL RIGHTS CTR.1101 Pennsylvania Avenue, NW6th FloorWashington, D.C. 20004(800)385-0601 [email protected]

March 5, 2015


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Table of ContentsTable of ContentsTable of ContentsTable of Contents

INTEREST OF THE AMICUS CURIAE ................... 1

ARGUMENT ............................................................... 2

I. THE PETITIONER’S RIGHT TO M ARRY IS FOUND INTHE FOURTEENTH A MENDMENT ............................ 3

A. Parents in and the children of same-sexmarriages are entitled to equal protection ...... 4

B. Same-sex marriage bans unfairly discriminateagainst children based on the constitutionally-protected choices of their parents .................... 6

II. F AILURE TO RECOGNIZE LEGAL S AME-SEXM ARRIAGES FROM OTHER JURISDICTION VIOLATESTHE UNITED STATES CONSTITUTION AND H ARMSF AMILIES ............................................................ 10

A. This Case Directly Implicates the Domestic

Relations Exception to Subject MatterJurisdiction ..................................................... 11

CONCLUSION .......................................................... 17


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Table of AuthoritiesTable of AuthoritiesTable of AuthoritiesTable of Authorities

CasesCasesCasesCases

Ankenbrandt v. Richards ,504 U.S. 689 (1992) ............................................... 16

Ashmore v. Prus ,510 Fed. App’x 47 (2d Cir. 2013) .......................... 13

Atwood v. Fort Peck Tribal Ct. Assiniboine ,513 F.3d 943 (9th Cir. 2008) ................................. 14

Barber v. Barber ,62 U.S. 582 (1858) ................................................. 16

Boddie v. Connecticut ,401 U.S. 371 (1971) ............................................... 13

Bowers v. Hardwick ,478 U.S. 186 (1986) ................................................. 8

Carey v. Population Servs. Int'l ,431 U.S. 678 (1977) ............................................... 13

City of Chi. v. Int'l Coll. of Surgeons ,522 U.S. 156, (1997) .............................................. 13

Cleveland Bd. of Educ. v. LaFleur ,414 U.S. 632 (1974) ................................................. 5

Eisenstadt v. Baird ,405 U.S. 438 (1972) ............................................... 13

Flood v. Braaten ,727 F.2d 303 (3d Cir. 1984) ............................ 13, 14

Goodridge v. Dep’t of Pub. Health ,798 N.E.2d 941 (Mass. 2003) ............................ 8, 10

Griswold v. Connecticut ,

381 U.S. 479 (1965) ............................................... 13


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Cases (cont.)Cases (cont.)Cases (cont.)Cases (cont.)

In re Burrus,136 U.S. 586 (1890) ............................................... 16

Johnson v. Rodrigues ,226 F.3d 1103 (10th Cir. 2000) ............................. 14

Lawrence v. Texas ,539 U.S. 558 (2003) ................................. 7, 8, 10, 13

Loving v. Virginia ,388 U.S. 1 (1966) ................................................... 12

Mandel v. Town of Orleans ,326 F.3d 267 (1st Cir. 2003) ................................. 13

Maynard v. Hill ,125 U.S. 190 (1888) ............................................... 11

McLaughlin v. Pernsley ,876 F.2d 308 (3d Cir. 1989) .................................. 14

Meyer v. Nebraska ,262 U.S. 390 (1923) ................................................. 4

Moore v. City of East Cleveland ,

431 U.S. 494 (1977) ................................................. 5Palmore v. Sidoti , 466 U.S. 429 (1984) ..................... 12

Pierce v. Society of Sisters ,268 U.S. 510 (1925) ........................................... 4, 13

Planned Parenthood v. Casey ,505 U.S. 833 (1992) ................................................. 8

Pyler v Doe ,457 U.S. 202 (1982) ......................................... 6, 7, 8

Roe v. Wade ,

410 U.S. 113 (1973) ............................................... 13Ruffalo v. Civiletti ,

702 F.2d 710 (8th Cir. 1983) ................................. 14


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Cases (cont.)Cases (cont.)Cases (cont.)Cases (cont.)

Santosky v. Kramer,

455 U.S. 745 (1982) ................................................. 4

Smith v. Organization of Foster Families for

Equality and Reform ,431 U.S. 816 (1977) ................................................. 5

Thompson v. Thompson ,484 U.S. 174 (1988) ............................................... 12

Troxel v. Granville ,

530 U.S. 57 (2000) ............................................... 2, 6United States v. Johnson ,

114 F.3d 476 (4th Cir. 1997) ................................. 14

United States v. Morrison ,529 U.S. 598 (2000) ............................................... 12

W. Va. State Bd. of Educ. v. Barnette ,319 U.S. 624 (1943) ............................................... 11

Wisconsin v. Yoder ,406 U.S. 205 (1972) ................................................. 4

Zablocki v. Redhail ,434 U.S. 374 (1978) ......................................... 11, 12

Other AuthoritiesOther AuthoritiesOther AuthoritiesOther Authorities

Harbach, Meridith Johnson,“Is the Family a Federal Question ”66 Wash. & Lee L. Rev. 131 (2009) ................ 12, 16


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In the Supreme Court of the United States ____________

V ALERIA T ANCO, et al.,

Petitioners,

v.

WILLIAM H ASLAM, et al.,

Respondents.

_____________

On Writ of Certiorari to the On Writ of Certiorari to the On Writ of Certiorari to the On Writ of Certiorari to the

US Court of Appeals for the Sixth Circuit US Court of Appeals for the Sixth Circuit US Court of Appeals for the Sixth Circuit US Court of Appeals for the Sixth Circuit

_____________ _____________ _____________ _____________

INTEREST OF THEINTEREST OF THEINTEREST OF THEINTEREST OF THE AMICUS CURIAE AMICUS CURIAE AMICUS CURIAE AMICUS CURIAE 1111

The National Family Civil Rights Center(“NFCRC”) is the only national non-profitorganization solely committed to protecting andenhancing the civil rights of children and parents in

all types of families with the mission to enhance andprotect the civil rights of families to equal protectionunder the law, fundamentally fair proceedings in thecourts, and accessibility to legal and governmentprocesses which impact the lives of parents andchildren in every type of family.

1111 No counsel for a party authored this brief in whole or part,nor did any person or entity, other than amicus or their counsel,make a monetary contribution to the preparation or submissionof this brief. All counsel of record have consented to this filingthrough blanket consents filed with the court.


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The NFCRC participates directly in and asamicus curiae in courts across the country inproceedings which present significant and pressingissues concerning the civil rights of families.2222

ARGUMENT ARGUMENT ARGUMENT ARGUMENT

This case presents an issue of great juris-prudential significance to the bedrock of Americansociety, the family, and the oldest of liberty interests:

The Fourteenth Amendment provides that no

State shall “deprive any person of life, liberty,or property, without due process of law.” Wehave long recognized that the Amendment'sDue Process Clause, like its Fifth Amendmentcounterpart, “guarantees more than fairprocess.” The Clause also includes a substan-tive component that “provides heightenedprotection against government interferencewith certain fundamental rights and libertyinterests.” The liberty interest… of parents in

the care, custody, and control of theirchildren—is perhaps the oldest of thefundamental liberty interests recognized bythis Court.”

Troxel v Granville , 530 US 57, 65 (2000)

The decision below, conflicting with thedecisions of every other sister Circuit, is whollydevoid of any recognition that this national

2222 Including in Stankevich v Milliron , Michigan Supreme

Court No. 148097, a same-sex marriage and custody disputebetween two women married in Canada that has been held inabeyance by April 25, 2014 order pending resolution of DeBoerv. Snyder, presently before this Court.


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debate about same-sex marriages is, at its core, adebate that affects the legal interests of millionsof American parents and children, and directlydenies these families the fundamental libertiesthat this Court has always protected.

I.I.I.I. TTTTHEHEHEHE PPPPETITIONERETITIONERETITIONERETITIONER’’’’SSSS RRRRIGHT TOIGHT TOIGHT TOIGHT TO MMMM ARRY IS ARRY IS ARRY IS ARRY IS FFFFOUND INOUND INOUND INOUND INTHETHETHETHE FFFFOURTEENTHOURTEENTHOURTEENTHOURTEENTH A AA A MENDMENTMENDMENTMENDMENTMENDMENT

Today, the concept of a family continues to beredefined and if anything, the traditional family

consisting of a married father and mother withchildren living in one home has become less thenorm. What the Sixth Circuit has done, is singledout a class of those families, based only on theconstitutionally-protected sexual preferences of theadults in those families, and imposed upon them theexact same unacceptable conditions noted by theCourt in 2013 when striking down the federal ban onsame sex marriages:

DOMA undermines both the public andprivate significance of state-sanctionedsame-sex marriages; for it tells thosecouples, and all the world, that theirotherwise valid marriages are unworthy offederal recognition. This places same-sexcouples in an unstable position of being in asecond-tier marriage. The differentiationdemeans the couple, whose moral and sexualchoices the Constitution protects, seeLawrence , 539 U. S. 558, and whoserelationship the State has sought to dignify.

And it humiliates tens of thousands ofchildren now being raised by same-sex

couples. The law in question makes it even


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the care custody and management of their child is afundamental right protected by the Fourteenth

Amendment. Notably, the the Court did not employthe use of “birth parents” in Santosky which wouldinfer only a biological connection to a child, butinstead used “natural parent”, which has alwaysbeen the “first parent” of a child, irrespective ofgenetic connection, as is often the case with childrenadopted into or resulting from same-sex unions.

Furthermore, the Court has refused to adopt a

narrow definition of “family” that limits con-stitutional protections to just traditional families,recognizing the need to adopt a broad definition offamily. Moore v. City of East Cleveland , 431 U.S. 494(1977). Justice Powell explained: “our decisionsestablish that the Constitution protects the sanctityof the family precisely because the institution of thefamily is deeply rooted in this Nation’s history andtradition… Ours is by no means a tradition limitedto respect for the bonds uniting the members of thenuclear family.” Id. at 503-04.

The Court further acknowledged that “family”is not limited to blood, marriage or by adoption inSmith v. Organization of Foster Families for

Equality and Reform , 431 U.S. 816, 843-44 (1977).Thus the arguments that same-sex marriage cannotresult in natural procreation – as reasons to sustainsame-sex marriage bans – are utterly meritless.

Also, the Court “has long recognized thatfreedom of personal choices in matters of marriageand family life is one of the liberties protected by the

Due Process Clause of the Fourteenth Amendment.”Cleveland Bd. of Educ. v. LaFleur , 414 U.S. 632, 639-40 (1974). The Court further acknowledged that


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“[t]he demographic changes of the past century makeit difficult to speak of an average American family”when strengthening the rights of parents todetermine with whom a child associates in Troxel v.Granville , 530 U.S. 57 (2000).

Thus, the decision below cannot be squaredwith the clear scrutiny required by Troxel and theliberal definition of family established by the

jurisprudence of this Court.

Further, whereas the Court has acknow-

ledged the importance of a liberal definition of familyand rights of parents, it has demonstrated a greaterdetermination to protect the rights of children; inPyler v Doe , 457 U.S. 202 (1982) the Court refused topunish children for the mistakes of the parents.While we certainly do not characterize the choice oftwo same-sex adults to exercise choice in making aunion based upon their constitutionally-protectedright to their sexual-orientation, the practical impactof the Sixth Circuit’s decision is to punish thechildren of these lawful relationships between two

loving adults. For this reason, the parents andchildren in these families, have a fundamental rightthat is being denied, to continue their parent-childrelationship with parents, who came together andformed an intact family into which they were born oradopted, deemed legal in many states but not withinthe Sixth Circuit.

B. SameSameSameSame----sex marriage bans unfairly discriminatesex marriage bans unfairly discriminatesex marriage bans unfairly discriminatesex marriage bans unfairly discriminateagainst children based on the constitutionallyagainst children based on the constitutionallyagainst children based on the constitutionallyagainst children based on the constitutionally----protected choices of their parentsprotected choices of their parentsprotected choices of their parentsprotected choices of their parents

In Pyler , this Court observed:


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“Persuasive arguments support the view thata State may withhold its beneficence fromthose whose very presence within the UnitedStates is the product of their own unlawfulconduct. These arguments do not apply withthe same force to classifications imposingdisabilities on the minor children of suchillegal entrants…. Their ‘parents have theability to conform their conduct to societalnorms,’ and presumably the ability to removethemselves from the State’s jurisdiction; butthe children who are plaintiffs in these cases‘can affect neither their parents’ conduct northeir own status.” Id. at 220.

But in the Sixth Circuit, the status of a child’sparents as a same-sex couple – denied the right tomarry – is the only reason why these children areexcluded from the protections state laws (see e.g. theChild Custody Act of Michigan and an assessment ofbest interests pursuant to MCL 722.23). This cannotbe squared with this Court’s holding in Pyler.

Significantly, the status millions of children’sparents, which are being used against them aschildren of these parents – by removing from thosechildren the same custodial best-interests protect-ions that would otherwise apply – is not an illegalalien status which the Court considered in Pyler butinstead is a constitutionally protected right that hasbeen repeatedly affirmed by this Court. In Lawrencev. Texas , 539 U.S. 558 (2003), this Court recognizedthe constitutional right of all individuals, to engage

in homosexual sexual relations within the privacy oftheir own homes.


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In doing so, the Court expressly overruledBowers v. Hardwick , 478 U.S. 186 (1986) and insteadfollowed Planned Parenthood v. Casey , 505 U.S. 833(1992) and its broad construction of the rights andtraditions at stake inherent in the right to sexualliberty.

Indeed, in applying Pyler , the MassachusettsSupreme Court held: “[i]t cannot be rational underour laws, and indeed it is not permitted, to penalizechildren by depriving them of State benefits because

the State disapproves of their parents' sexualorientation.” Goodridge v. Dep’t of Pub. Health , 798N.E.2d 941, 964 (Mass. 2003).

Importantly, the states within the SixthCircuit cannot discriminate against a person basedupon their homosexual orientation, in all respectsexcept marriage . Clearly, Lawrence prevents theLegislatures and voters of these states frominterfering with the sexual relations of all individ-uals based upon a heterosexual or homosexualorientation within the privacy of their own homes.

But in the context of marriage, the SixthCircuit now permits such discrimination, because inelections past, the “will of the people” indicated adesire to codify such discrimination.

Thus, the “will of the people” reflected in thesame-sex bans at issue below contain the sameanimus this Court directly address in Windsor :

The history of DOMA’s enactment and its owntext demonstrate that interference with the

equal dignity of same-sex marriages, a dignityconferred by the States in the exercise of theirsovereign power, was more than an incidental


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effect of the federal statute. It was its essence.The House Report announced its conclusionthat ‘it is both appropriate and necessary forCongress to do what it can to defend theinstitution of traditional heterosexual mar-riage. . . . H. R. 3396 is appropriately entitledthe ‘Defense of Marriage Act.’ The effort toredefine ‘marriage’ to extend to homosexualcouples is a truly radical proposal that wouldfundamentally alter the institution ofmarriage.’ H. R. Rep. No. 104–664, pp. 12–13(1996). The House concluded that DOMAexpresses ‘both moral disapproval of homo-sexuality, and a moral conviction that hetero-sexuality better comports with traditional(especially Judeo-Christian) morality.’ Id., at16 (footnote deleted). The stated purpose of thelaw was to promote an “interest in protectingthe traditional moral teachings reflected inheterosexual-only marriage laws.” Ibid. Werethere any doubt of this far-reaching purpose,

the title of the Act confirms it: The Defense ofMarriage.

There can be no doubt that the state same-sexmarriage bans at issue below were enacted for thesame reason, to interfere with the dignity of same-sex marriages between homosexual couples.

Moreover, many same-sex citizens in thesestates would be considered legally married, if theywere not a same-sex couple , because they possessvalid marriage licenses from other states. As such,

they are being discriminated against precisely andonly because of their constitutionally-protectedsexual orientation, which is every bit offensive as if


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their marriage certificate was subject to strictscrutiny and validity upon some other constitu-tionally-protected factor such as their religion, ageand ability to conceive or bear children, or their race.

Furthermore, it is readily obvious that thediscrimination against the parties in this case,extends to the children in those families who arebeing punished by the choices and sexual orientationtheir parents over which they no control.

II.II.II.II. FFFF AILURE AILURE AILURE AILURE TTTTOOOO RRRRECOGNIZEECOGNIZEECOGNIZEECOGNIZE LLLLEGALEGALEGALEGAL SSSS AME AME AME AME----SEXSEXSEXSEXMMMM ARRIAGE ARRIAGE ARRIAGE ARRIAGESSSS FFFFROMROMROMROM OOOOTHERTHERTHERTHER JJJJURISDICTIONURISDICTIONURISDICTIONURISDICTION

V VV VIOLATES THEIOLATES THEIOLATES THEIOLATES THE UUUUNITEDNITEDNITEDNITED SSSSTATESTATESTATESTATES CCCCONSTITUTIONONSTITUTIONONSTITUTIONONSTITUTION AND AND AND AND HHHH ARMS ARMS ARMS ARMS FFFF AMILIES AMILIES AMILIES AMILIES

Since this Court’s decision in Lawrence andthe Massachusetts Supreme Court decision inGoodridge , every other state has either legalizedsame-sex marriage or passed a constitutionalamendment (or other legislation) to ban same-sexunions. Today, the list of states that have legalized

same-sex marriage through federal court decisionsexpands, but eight states have legalized same-sexmarriage through the enactment of legislation(Delaware, Hawaii, Illinois, Minnesota, NewHampshire, New York, Rhode Island, and Vermont),and three through a popular vote (Maine, Marylandand Washington). Same-sex marriage is also legal inWashington, D.C., as well as across the US bordersto the north and south in Canada and many

jurisdictions in Mexico. Importantly, since Windsor,not a single state constitutional or legislative ban

has been enacted by voters.


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procedurally behind the cases at bar (e.g. SouthCarolina ) have raised this in stay applications to theCourt. For these reasons, this case presents an idealvehicle to resolve a deep and entrenched circuit split.

Numerous scholars note that a series offederal “constitutional questions relating to thefamily ─ about who can marry, who can have sex,who can procreate or chose not to procreate, and therights of parents and children” have been decided inthe Court and that as a consequence, the federal

judiciary is charged with “frequently acting as acheck on state prerogatives.”3333 These federal constit-utional issues have led to conflict over the role of thefederal system in domestic relations. Indeed, constit-utional review of Congress’ “jurisdiction-strippinglegislation [1 U.S.C. 7] to prevent federal courtreview of fundamental family rights” is now underreview and this Court has struck down otherCongressional attempts to regulate aspects ofdomestic relations: see United States v. Morrison ,529 U.S. 598, 627 (2000); Thompson v. Thompson ,

484 U.S. 174, 186 n.4 (1988). Id. HarbachFurthermore, the Federal bench has a long-

standing tradition of intervening in state domesticrelations issues when federal question casesimplicate the family, frequently serving as this checkupon state prerogatives which impede on the centralliberties protected by the Fourteenth Amendment.Zablocki v. Redhail , 434 U.S. 374, 376 (1978);Palmore v. Sidoti , 466 U.S. 429, 430 (1984); Loving v.Virginia , 388 U.S. 1, 3-4 (1966); Pierce v. Society of

3333 Harbach, Meridith Johnson, “Is the Family a FederalQuestion ,” Washington and Lee Law Review, Volume 66, Issue1, Article 4, pg 138 [66 Wash. & Lee L. Rev. 131 (2009)]


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Sisters , 268 U.S. 510, 510 (1925); Lawrence v. Texas ,539 U.S. 558, 578-79 (2003); Carey v. PopulationServs. Int'l , 431 U.S. 678, 681-82 (1977); Roe v.Wade , 410 U.S. 113, 116, 120 (1973); Eisenstadt v.Baird , 405 U.S. 438, 440 (1972); Boddie v.Connecticut , 401 U.S. 371, 372 (1971); and Griswoldv. Connecticut , 381 U.S. 479, 485-86 (1965).

In fact, the "claims of a kind traditionallyadjudicated in federal courts... [were] not exceptedfrom federal court jurisdiction simply because they

ar[o]se in a domestic relations context." City of Chi.v. Int'l Coll. of Surgeons , 522 U.S. 156, 190 n.6 (1997)(Ginsburg, J., dissenting). As the body of federalconstitutional decisions affecting families has grown,the federal courts increasingly have faced federalquestion claims relating to domestic relations – as inthe cases at bar. See e.g. Flood v. Braaten , 727 F.2d303, 307 n.17 (3d Cir. 1984) (observing that, givenSupreme Court's modem recognition of family lawrights of constitutional dimension, "it would bedifficult to maintain that the domestic relations

exception extends to all sources of jurisdiction"). Yet today, great uncertainty and a split among

the circuits has emerged, raising uncertainty aboutwhether federal court have jurisdiction to addressthe types of federal questions implicating thedomestic relations of parties, as in this case:

Ashmore v. New York , aff’d sub nom. Ashmore v.Prus , 510 Fed. App’x 47 (2d Cir. 2013), cert. denied,133 S.Ct. 2038 (2013) (“We expressly decline toaddress whether the domestic relations exception to

federal subject matter jurisdiction applies to federalquestion actions.”); Mandel v. Town of Orleans , 326F.3d 267, 271 (1st Cir. 2003) ("[T]he courts are


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divided as to whether the doctrine is limited todiversity claims and this court has never decidedthat issue. The debate is esoteric but, as federal lawincreasingly affects domestic relations, one ofpotential importance."); Johnson v. Rodrigues , 226F.3d 1103, 1111 n.4 (10th Cir. 2000) ("Some districtcourts in the Second Circuit have applied thedomestic relations exception in federal questioncases, but other Circuits have held that the exceptionis limited to diversity suits."); McLaughlin v.Pernsley , 876 F.2d 308, 312 (3d Cir. 1989)(recognizing differences in some circuits); Ruffalo v.Civiletti , 702 F.2d 710, 717-18 (8th Cir. 1983) ("It isunclear whether the domestic-relations exceptionapplies to cases brought under the federal-questionstatute."); Atwood v. Fort Peck Tribal Ct.

Assiniboine , 513 F.3d 943, 947 (9th Cir. 2008) (“Wetherefore join the Fourth and Fifth Circuits inholding that the domestic relations exception appliesonly to the diversity jurisdiction statute”); UnitedStates v. Johnson , 114 F.3d 476, 481 (4th Cir. 1997)

(“The 'jurisdictional exception,' in the first place, isapplied only as a judicially implied limitation on thediversity jurisdiction; it has no generally recognizedapplication as a limitation on federal question

jurisdiction.”); Flood v. Braaten , 727 F.2d 303, 305,308 (3d Cir. 1984) ("[W]e cannot agree with thedistrict judge that the PKPA can never supportfederal question jurisdiction in a lawsuit connectedwith a child custody dispute. Accordingly, we willremand for further proceedings." ("[A]s a

jurisdictional bar, the domestic relations exception

does not apply to cases arising under theConstitution or laws of the United States.").


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This important debate rages on and shows nosign of abating, evidenced by the March 3, 2015order of the Alabama Supreme Court that theprobate judges of its state were not to marry same-sex Alabama citizens, holding, inter alia , that itsstate Constitution was the relevant authority, notthe Federal courts, in direct contravention of theU.S. Constitution and relevant orders of the Federal

judiciary. See Ex parte State of Alabama ex rel. Alabama Policy Institute, et. al. No. 1140460.

As Alabama once again demonstrates, theFederal courts are more independent and insulatedfrom local bias or majoritarian pressure, enablingthem to enforce the U.S. Constitution without fear ofreprisal. Moreover, the longstanding tradition of theFederal Courts as enforcers of the Constitution, andthe lifetime appointment to the bench, makes theFederal bench more receptive to the Court’sprecedents and distant from the pressures on statecourts which may leave state court Judges cynicaland skeptical of constitutional rights in practice. For

precisely this reason, legal scholars have noted thatExpanding the exception to federal questionsundermines the value in preserving a federalforum for family law cases raising federalquestions. Using the domestic relationsexception to bar consideration of federalquestions in federal court may increase thepossibility that state courts will decline toextend important federal family rights or,worse yet, undermine them knowing their

decisions will never be reviewed by theSupreme Court

…


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[T]his expansion causes expressive harm andhas cultural implications. An expandedexception manifests an attitude that federalfamily law questions and litigants are lessimportant or worthy than other federalquestions. This expressive message lowers thestatus of these issues, reinforcing the inferiorstatus of family law issues vis-á-vis the federalcourts, and assuring the continuedmarginalization of family law.

…[federal questions are the] core of modernfederal court jurisdiction [and] the mostimportant component of the federal courts’workload.

Harbach, at 138.

Finally, we note that the central premise ofthe domestic relations exception—that "[t]he wholesubject of domestic relations of husband and wife,parent and child, belongs to the laws of the states

and not to the United States” originally appeared asa dicta. In re Burrus, 136 U.S. 586, 593-94 (1890).

Although this was first articulated in 1959, theSupreme Court did not rely on this justification for aholding as opposed to dicta until 1930. Ankenbrandtv. Richards , 504 U.S. 689, 694 (1992) ((noting thatlanguage in Barber, first announcing exception, was"technically dicta") (citing Barber v. Barber , 62 U.S.582, 584 (1858)). For too long, lower courts havebeen left to their own to interpret what the Courtintended in Akenbrandt.

For these reasons, direct rejection of thedomestic relations exception to subject matter


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jurisdiction in federal question actions is bothnecessary and appropriate in this case.

CONCLUSIONCONCLUSIONCONCLUSIONCONCLUSION

Allowing the Sixth Circuit decision to standwill deny millions of American couples, parents andchildren the oldest fundamental liberties recognizedby the Court. For these reasons, the NationalFamily Civil Rights Center respectfully asks that theCourt reverse.

Respectfully submitted,

DOUGLAS J. C ALLAHAN Counsel of Record

N AT’L F AMILY CIVIL RIGHTS CTR.1101 Pennsylvania Avenue, NW6th FloorWashington, D.C. 20004(800)385-0601 [email protected]

Dated: M ARCH 2015

Documents

National Family Civil Rights Center Amicus Brief