The Same-Sex Marriage Cases and Federal Jurisdiction: On Third-Party Standing and Why the Domestic Relations Exception to Federal Jurisdiction Should Be Overruled

50 Pages Posted: 5 Oct 2014 Last revised: 2 Jun 2016

Date Written: May 1, 2016

Abstract

In this paper, we consider two questions. First, we address whether there was proper standing for the Article III courts to decide United States v. Windsor, 570 U.S. 133 S. Ct. 2675, 2696 (2013) and Hollingsworth v. Perry, 133 S. Ct. 2652, 2668 (2013). We conclude that the third-party appellants lacked standing in federal court. Second, we examine whether cases challenging state same-sex marriage bans were and are cases in “law and equity” or instead, barred under the domestic relations exception for the purposes of federal question jurisdiction. We conclude that the domestic relations exception to federal jurisdiction is an archaic, historical remnant that should be overruled by the U.S. Supreme Court, and thus, the Article III federal courts have jurisdiction to hear pure marital status cases despite their domestic nature. We call on the Supreme Court to eliminate the domestic relations exception as to all forms of federal jurisdiction.

Keywords: same-sex marriage, gay marriage, federal jurisdiction, Article III, Domestic Relations Exception, third-party standing, Fourteenth Amendment, Substantive Due Process, Equal Protection, Right to Privacy

JEL Classification: K10, K30

Suggested Citation

Calabresi, Steven G. and Sinel, Genna L., The Same-Sex Marriage Cases and Federal Jurisdiction: On Third-Party Standing and Why the Domestic Relations Exception to Federal Jurisdiction Should Be Overruled (May 1, 2016). University of Miami Law Review, Vol. 70, No. 3, Pg. 508, 2016, Northwestern Law & Econ Research Paper No. 14-18, Northwestern Public Law Research Paper No. 14-50, Available at SSRN: https://ssrn.com/abstract=2505514 or http://dx.doi.org/10.2139/ssrn.2505514

Steven G. Calabresi (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Genna L. Sinel

Independent ( email )

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