Last month there was much speculation on the ultimate fate of Perry v. Schwarzenegger in the Supreme Court. Will the case get past the Ninth Circuit on the merits, or stall on standing grounds? Might the Supreme Court deploy the passive virtues to avoid decision on this still-contentious issue, as it has with other hot buttons in the past?
As we continue to watch and wonder, there’s one additional wrinkle that’s worth remembering: When it comes to the federal courts, domestic relations cases are an easy mark. Federal judges are famously loathe to insert themselves into messy and bitter family law disputes, and many of them happily and liberally invoke the domestic relations exception to avoid involvement in such cases. But as I’ve written about elsewhere, one largely overlooked trend among the federal courts is the stealth expansion of this doctrine to exclude not only diversity cases, but also federal question cases. Using a variety of doctrines, the lower federal courts have increasingly declined consideration of family law cases involving federal questions, sometimes explicitly invoking the domestic relations exception.
What are the odds that the Supreme Court would actually use this tactic to avoid the merits in Perry? Turns out there’s at least some precedent for the proposition that a marriage equality challenge doesn’t raise a federal question. Read More