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Is the Family a Federal Question?

61 Pages Posted: 30 Oct 2008  

Meredith Johnson Harbach

University of Richmond School of Law

Date Written: October 29, 2008


There has long been conflict over the relationship between the states and the federal system vis-a-vis the family. The traditional account of domestic relations describes family law as the exclusive domain of the states, and federal courts have credited this account in the "domestic relations exception." Although scholars have analyzed and critiqued the exception's applicability to diversity jurisdiction, the intersection of federal question jurisdiction and this exception remains largely unexplored. This Article describes and critiques, on both instrumental and deeper normative terms, federal courts' willingness to expand the "domestic relations exception" to include federal question cases.

The Article proceeds in three parts. In Part I, I describe the emerging trend in federal courts of avoiding decision on federal questions implicating the family, either by expanding the domestic relations exception, or by using other avoidance doctrines as proxies to accomplish the same result. I also explain how Supreme Court dicta in Elk Grove Independent School District v. Newdow has exacerbated this trend. In Part II, I assess critically how and why federal courts are avoiding these questions, considering the potential doctrinal and policy bases for an expansive exception, and evaluating its potential scope. I conclude that there is no principled doctrinal or policy basis for an expanded domestic relations exception that includes federal questions.

Part III shifts to a more normative and theoretical perspective, evaluating whether federal courts should defer to the states when facing federal questions affecting the family. Here, I argue that there is instrumental and normative value in preserving a federal forum. I also argue that, because an expanded domestic relations exception would subordinate litigants, cause expressive harm, and potentially trigger negative cultural consequences, federal courts should resist expansion. The Article concludes with some reflections on the implications of my analysis and emphasizes the important role of federal courts in supporting, empowering, and protecting contemporary American families.

Suggested Citation

Harbach, Meredith Johnson, Is the Family a Federal Question? (October 29, 2008). NYU School of Law, Public Law Research Paper No. 08-31; Washington & Lee Law Review, Vol. 66, March 2009. Available at SSRN:

Meredith Johnson Harbach (Contact Author)

University of Richmond School of Law ( email )

28 Westhampton Way
Richmond, VA 23173
United States
(804) 287-6688 (Phone)

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