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.
Steven G. Calabresi and Genna L. Sinel,
The Same-Sex Marriage Cases and Federal Jurisdiction: On Third-Party Standing and Why the Domestic Relations Exception to Federal Jurisdiction Should Be Overruled,
70 U. Miami L. Rev.
Available at: https://repository.law.miami.edu/umlr/vol70/iss3/4