Original article published at: https://nybusiness.law/are-you-my-mother-the-federal-courts-and-the-american-family.html
In P.D. Eastman’s children’s book, a baby bird hatches while its mother is away and goes from candidate to candidate asking the question: Are you my mother? The American family has been asking the federal courts a version of that question for 165 years. The answers have not been consistent.
The Domestic Relations Exception to federal jurisdiction holds that federal courts have no authority over divorce, alimony, child custody, and family structure, which belong categorically to the states. That is the doctrine’s self-description. The courts’ actual behavior across 165 years tells a different story.
They prosecuted a religious minority’s marriages. They dissolved a church on the basis of its members’ household arrangements. They defined who could marry whom. They set the evidentiary standard for taking children away from parents. They overrode state divorce law when federal benefit plans were at stake. They mandated federal preferences in custody proceedings involving Native American children. They told states that race cannot determine custody. They declared that same-sex couples have a constitutional right to marry.
Are you my mother? On those questions, the answer was yes. Emphatically, repeatedly, and without hesitation.
But when the question comes from a parent seeking federal review of a family court proceeding that violated a constitutional right, the answer changes. The court that was just here, defining the constitutional dimensions of American family life across a century and a half of jurisprudence, suddenly announces it has no jurisdiction over domestic relations.
I have been thinking about this problem for a while. I have written about the federal government’s nineteenth-century relationship with the Church of Jesus Christ of Latter-day Saints, a history in which federal authority over the church’s most intimate institutional practices was exercised without restraint or principled limit. That history coincided almost exactly with the years the Supreme Court was constructing the DRE. That juxtaposition is where the argument begins.
The Same Courts, the Same Decade
The exception traces to Barber v. Barber, 62 U.S. 582 (1859), where the Supreme Court announced in dictum that federal courts have no jurisdiction over divorce and alimony. No statutory citation. No constitutional text. A policy judgment dressed in jurisdictional language.
In re Burrus, 136 U.S. 586 (1890), extended this to child custody. “The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States,” the Court wrote. That is a statement about tradition, not jurisdiction. Article III does not contain a carve-out for domestic relations.
Here is what the doctrinal account of Barber and Burrus obscures: the company those decisions kept.
In Reynolds v. United States, 98 U.S. 145 (1879), the Supreme Court upheld the federal prosecution of a Mormon man for bigamy, asserting federal authority to criminalize the domestic arrangements of a religious community without any jurisdictional hesitation. Davis v. Beason, 133 U.S. 333 (1890), the same year as Burrus, upheld disenfranchisement of polygamy advocates. Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1890), also the year of Burrus, upheld the federal dissolution of the LDS Church’s corporate charter and forfeiture of its property on the basis of how its members organized their households.
The same Court telling itself in Burrus that domestic relations belong entirely to the states was simultaneously dissolving a religious institution on the basis of its members’ family arrangements. That is not a principled constitutional rule. It is the courts picking and choosing.
The standard response is that Utah was a federal territory, giving Congress plenary authority that does not apply to states. That argument is technically accurate as far as it goes. It does not go far enough.
The Utah Enabling Act of 1894 required, as a condition irrevocable without federal consent, that the Utah constitution permanently prohibit polygamy. Article III of the Utah State Constitution reads: “Polygamy or plural marriage are forever prohibited.” That provision is unamendable without United States approval. It is there today. The federal government embedded its position on family structure permanently in the state constitution as a term of admission. Nobody at the time suggested Reynolds would be reversed once Utah became a state. The principle traveled into statehood and has been cited as controlling doctrine ever since, including in Employment Division v. Smith, 494 U.S. 872 (1990), decided in Oregon, not a territory.
And then there are the state cases. Pace v. Alabama, 106 U.S. 583 (1883). Loving v. Virginia, 388 U.S. 1 (1967). Zablocki v. Redhail, 434 U.S. 374 (1978). The DRE was in full force in 1967 and 1978. It did not stop Loving or Zablocki because the constitutional stakes were visible enough to compel engagement. The distinction between the cases in which the federal courts intervened and the cases in which the DRE forecloses intervention correlates with political salience and social consensus in a way that doctrine alone does not explain.
What Ankenbrandt Admitted
The leading modern authority is Ankenbrandt v. Richards, 504 U.S. 689 (1992), where the Court had a genuine opportunity to rationalize the doctrine and largely declined. Justice White’s opinion located the DRE not in Article III but in the diversity statute, 28 U.S.C. § 1332, preserving the exception without confronting whether federal courts can voluntarily relinquish jurisdiction Article III extends to them.
That statutory relocation was more concession than validation. By moving the DRE off constitutional ground, the Court implicitly acknowledged it could not defend the doctrine constitutionally, and extended an invitation to Congress: if the statute has been misread, Congress can say so. Congress has not acted in thirty years. The Court continued enforcing a rule it declined to constitutionally validate. It created the problem, declined to defend it, shifted responsibility, and continued as before when the responsibility was not taken up. That is not judicial restraint. It is a parent denying a relationship the DNA already established.
Lower courts have compounded the problem by not even applying Ankenbrandt as written. Some circuits correctly limit the DRE to cases where a federal court is asked to issue a divorce, alimony, or custody decree. Others apply it to any case arising from a domestic relations context, even where the claim is purely constitutional. Identical civil rights claims arising from identical family court proceedings get federal review in one circuit and dismissal in another. That is evidence the doctrine was never principled enough to produce consistent results.
The Harm Is Real and Concrete
The hardest version of the problem is when the DRE bars Section 1983 claims. Federal civil rights are not a matter of state law. A parent alleging that a family court judge violated the First Amendment by penalizing religious practice, denied due process through fabricated evidence, or removed a child based on the parent’s politics or religion is raising a claim Congress specifically authorized federal courts to adjudicate. Section 1983 exists because Congress determined, after Reconstruction, that state courts cannot be trusted as the exclusive forum for constitutional claims against state actors.
The argument that a determined litigant can always work through state courts and reach the Supreme Court misunderstands how this actually operates. When a district court dismisses a civil rights claim on DRE grounds, what the litigant loses is not just the ruling. It is the record. No factual development. No merits briefing. No evidentiary hearing. What goes up on appeal is a dismissal order reviewed under the same doctrine. The Court has revisited Ankenbrandt precisely never in thirty years. The theoretical path to correction exists. The practical path does not.
Family courts operate in private. Records are sealed. A judge who wants to reach a particular result has more room to do so here than nearly anywhere else in the system. The DRE ensures that room is never reduced by the prospect of federal scrutiny. That is not deference. It is immunity by venue.
The Federal Courts Are Already in the Room
The premise that domestic relations constitute a coherent domain of state sovereignty into which federal courts do not venture is false as a description of what federal courts actually do. They adjudicate international custody disputes under the Hague Convention. They govern divorce financial consequences through ERISA. They set mandatory evidentiary standards for terminating parental rights under Santosky v. Kramer, 455 U.S. 745 (1982). They mandate federal placement preferences in state custody proceedings under ICWA. In Palmore v. Sidoti, 466 U.S. 429 (1984), the Supreme Court reversed a Florida custody determination on Equal Protection grounds, noting at the outset that such a judgment “is not ordinarily a likely candidate for review by this Court,” then doing it anyway.
The federal courts are the constitutional parent of American family life. They have always been in the room. The DRE does not keep them away. It determines, on grounds that have never been principled, whose family gets the benefit of their presence.
The Rule
The doctrinal path for courts willing to engage the argument is not complicated. Ankenbrandt bars federal courts from issuing divorce, alimony, and child custody decrees. It does not, on any principled reading, bar federal question jurisdiction over constitutional claims arising from family court proceedings. Courts should hold that the DRE does not apply to Section 1983 claims alleging constitutional violations in domestic relations proceedings. That rule does not require overruling Ankenbrandt. It does not authorize federal courts to relitigate custody determinations or displace Rooker-Feldman. It means only that a constitutional claim does not lose its federal forum because the facts arose in a family court. The circuit courts that have extended the DRE beyond its decree-issuing core have done so without constitutional authorization. They should stop.
The bird found its mother. The question has been answered by the courts’ own conduct across 165 years of American constitutional history, whether they acknowledge it or not. The exception should be closed. The answer has always been yes.
This post is a condensed version of a full law review article, “Are You My Mother? The Federal Courts and the American Family,” available at [link]. Michael Simon Baker is a New York-based corporate, finance, and business disputes attorney and principal of Michael S. Baker, P.C. (d/b/a NYBusiness.Law). He maintains an AI governance and implementation practice at ArtificialIntelligence.Lawyer. This post is for informational purposes only and does not constitute legal advice.