Symposium: The gay marriage cases and federal jurisdiction

Steven G. Calabresi is the Clayton J. and Henry R. Barber Professor of Law at Northwestern University and Visiting Professor of Political Science at Brown University 2010-2018. The full version of this essay (including the footnotes) is available on SSRN.

[Earlier contributions to this symposium came from: John Neiman, Dale Carpenter, Robin Wilson, Bill Eskridge,  Scott Michelman, Neil Siegel, and Suzanne Goldberg.]

“The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the states and not to the United States.” – In re Burrus (1890)

“[W]hile rare instances arise in which it is necessary to answer a substantial federal question that transcends or exists apart from the family law issue, in general it is appropriate for the federal courts to leave delicate issues of domestic relations to the state courts. … In our view, it is improper for the federal courts to entertain a claim by a plaintiff whose standing to sue is founded on family law rights ***. When hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law.” – Elk Grove Unified School District v. Newdow (2004)

The U.S. Supreme Court recently struck down the federal Defense of Marriage Act in United States v. Windsor and it allowed a lower court ruling to go into effect legalizing gay marriage in California in Hollingsworth v. Perry. In addition, the U.S. Courts of Appeals for the Fourth and Tenth Circuits have held state bans on gay marriage to be unconstitutional, and the issue is widely expected to be heard soon by the Supreme Court. All of these cases raise important questions of as to gay rights and as to federal jurisdiction. In United States v. Windsor, President Obama agreed with the Second Circuit ruling below that the federal government had acted unconstitutionally in defining marriage as being only the union of one man and one woman. Chief Justice Roberts and Justices Scalia and Thomas dissented on the grounds that neither the President nor the Bipartisan Legal Advisory Group of the U.S. House of Representatives had standing to appeal a Second Circuit ruling with which they agreed. In Hollingsworth v. Perry, Chief Justice Roberts’ majority opinion held that several proponents of a California proposition banning gay marriage lacked standing to appeal a lower court order holding that ban unconstitutional, given that the Attorney General and Governor of California agreed that the proposition in question was unconstitutional. I agree with Chief Justice Roberts’ majority opinion in Hollingsworth v. Perry and with Justice Scalia’s dissent in United States v. Windsor.   Private busybodies lack standing to defend statutes in federal court that federal or state executive officials refuse to defend on the grounds that they are unconstitutional.

In reaching this conclusion, I do not mean to suggest that I think federal or state bans on gay marriage are constitutional or that they are wise as a matter of policy. To the contrary, I think that gay people do have a constitutional right to marry under the Fourteenth Amendment, and I also think that gay marriage is desirable for policy reasons. State bans on gay marriage violate constitutional equal protection principles, and they are a bad idea as a matter of policy. As a constitutional matter, bans on gay marriage are at a bare minimum subject to skeptical scrutiny under United States v. Virginia because they discriminate on the basis of sex. Men are allowed only to marry a woman and not another man, and women are allowed only to marry a man and not another woman. This sex discrimination as to whom one can marry is not in my opinion supported by “an exceedingly persuasive justification” that overcomes the skeptical scrutiny mandated by United States v. Virginia. There is no empirical evidence that the legalization of same-sex marriage would undermine heterosexual marriage or would be harmful to children, contrary to the assertions of those who support state bans on gay marriage. There are many reasons to think, as I do, that gay marriage is preferable on policy grounds to gay promiscuity just as heterosexual marriage is obviously preferable to heterosexual promiscuity. I thus do not agree with the four conservative Justices on the U.S. Supreme Court on the merits of the gay marriage issue but agree instead with Justice Anthony M. Kennedy.

I do think, however, that the federal jurisdictional problems with cases challenging the constitutionality of bans on gay marriage in federal court are much more complex and daunting than even the conservative Justices on the U.S. Supreme Court acknowledged in the Windsor and Hollingsworth cases. In particular, I do not think the federal courts have either federal question jurisdiction or diversity 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.

A state law that criminalized gay marriage, like the Virginia state criminal anti-miscegenation law that was struck down in Loving v. Virginia, would be a case in law or equity that would fall within the federal question grant of jurisdiction. Criminal cases are and always have been understood as being cases in law or equity both in England and in the United States. A case, however, that challenges the constitutionality under the federal Constitution of a state law that does nothing more than to define the status of marriage as the union of one man and one woman is not a “Case in Law or Equity” as those words are used in the federal Constitution or in the current federal question statute or in the diversity jurisdiction statute.

The reason for this is that the phrase “Cases in Law and Equity”, in 1787, was a legal term of art that encompassed only those cases which could have been brought at that time in England before the Courts of Law (the Court of King’s Bench or the Court of Common Pleas) or before the Courts of Equity (the Court of Exchequer or the Court of Chancery). Matrimonial causes, in 1787, could only be heard in England in the Ecclesiastical Courts of the Church of England, and it was not until the passage of the Matrimonial Causes Act of 1857 that the ordinary courts in England were empowered to hear matrimonial causes and divorce cases. Prior to 1857, marriage in England was a religious sacrament and not a contract and that was also the case in the United States when Article III was enacted. It is thus not surprising that the gay marriage issue in the United States, today, divides Americans primarily on religious lines, and the original Constitution banned federal establishments of religion primarily to allow the states to have different established churches according to their own preferences.

By the time the Fourteenth Amendment was adopted, in 1868, marriage had come to be thought of as being not only a sacrament but also as being a contract, as Andrea Matthews and I argued in Originalism and Loving v. Virginia. But by 1868, Article III had been the Supreme Law of the Land for seventy-nine years, and under Article III matrimonial causes were by definition not “Cases in Law and Equity.” The Fourteenth Amendment created new rights, but it did not add to the Article III jurisdiction of the federal courts. And under Article III, pure matrimonial causes (or domestic relations cases as our courts have labeled them) could only be adjudicated in the United States in the thirty-seven state supreme courts and in inferior state courts. There thus may very well be a Fourteenth Amendment argument that bans on gay marriage are unconstitutional, but it is an argument that only the state courts have jurisdiction to address each State deciding for itself what the Fourteenth Amendment means within its own borders.

As I shall explain further below, I do think the federal Defense of Marriage Act was unconstitutional because Congress did not have the enumerated power to adopt a federal marriage statute. Under American federalism, the law of marriage and divorce is in “pith and substance” a question of state law and not one of federal law. It is thus not at all surprising to learn that the very same Constitution which leaves the definition of marriage to the states would also not give the Article III federal courts jurisdiction to hear matrimonial causes or domestic relations cases. Under “Our Federalism” each of the fifty state supreme courts must decide for themselves what the Fourteenth Amendment means within the borders of their respective states.

The recent Utah district court ruling affirmed by the Tenth Circuit that struck down Utah’s ban on same sex marriage, which has been stayed by the U.S. Supreme Court, ought to be vacated by the Tenth Circuit or by the U.S. Supreme Court because the district court did not have federal question jurisdiction to hear this matrimonial causes/domestic relations case. The final word on the meaning of the Fourteenth Amendment in this pure matrimonial causes case rests with the Supreme Court of Utah and not with the federal courts.

In this essay, I will argue that Chief Justice Roberts and Justice Scalia were right on the federal jurisdictional issue in United States v. Windsor and Hollingsworth v. Perry. In Part I, I will argue that litigants cannot appeal decisions with which they agree and that private busybodies in the House of Representatives lack standing to appeal a ruling legalizing gay marriage under federal law. In Part, II I will expand on that argument and will explain why private busybodies in California lack standing to defend the constitutionality of a state-adopted initiative, which the executive branch of the California state government will not defend. Finally, in Part III, I will discuss the much broader federal jurisdictional problem with lawsuits like the ones in Windsor and Perry that I have alluded to in this introduction. The lawsuit in Perry, in particular, and in the recent Utah district court case are not, in our opinion, cases in law or equity that arise that the Article III federal courts have jurisdiction to hear under federal law.