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BLACKMUN, J., concurring in judgment

standing practice of declining to hear certain domestic relations cases. My point today is that no coherent “jurisdictional” explanation for this practice emerges from our line of such cases, and it is unreasonable to presume that Congress divined and accepted one from these cases. To be sure, this Court's old line of domestic relations cases disclaimed “jurisdiction” over domestic relations matters well before the growth and general acceptance in recent decades of modern doctrines of federal abstention that distinguish the refusal to exercise jurisdiction from disclaiming jurisdiction altogether. See generally C. Wright, Federal Courts 302–330 (1983) (discussing growth of traditional abstention doctrines). See also Francis v. Henderson, 425 U. S. 536, 538–539 (1976) (recognizing abstention in the context of the habeas corpus statute where “considerations of comity and concerns for the orderly administration of criminal justice require”). Nevertheless, the common concern reflected in these earlier cases is, in modern terms, abstentional—and not jurisdictional—in nature. These cases are premised not upon a concern for the historical limitation of equity jurisdiction of the English courts, but upon the virtually exclusive primacy at that time of the States in the regulation of domestic relations. As noted above, in Simms and De la Rama, this Court justified its exercise of jurisdiction over actions for divorce and alimony not by any reference to the scope of equity jurisdiction but by reference to the absence of any interest of the States in appeals from courts in territories controlled by the National Government. Similarly, in cases wholly outside the “common law or equity” limitation of the diversity statute, the Court has denied federal court review. Ohio ex rel. Popovici v. Agler, 280 U. S. 379 (1930) (consuls and vice-consuls statutes); In re Burrus, supra (habeas corpus). As the Court once stated: “The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States." Id., at 593-594.

BLACKMUN, J., concurring in judgment

Whether the interest of States remains a sufficient justification today for abstention is uncertain in view of the expansion in recent years of federal law in the domestic relations area. I am confident, nonetheless, that the unbroken and unchallenged practice of the federal courts since before the War Between the States of declining to hear certain domestic relations cases provides the very rare justification for continuing to do so. It is not without significance, moreover, that, because of this historical practice of the federal courts, the States have developed specialized courts and institutions in family matters, while Congress and the federal courts generally have not done so. Absent a contrary command of Congress, the federal courts properly should abstain, at least from diversity actions traditionally excluded from the federal courts, such as those seeking divorce, alimony, and child custody.

The Court is correct that abstention "rarely should be invoked.” Ante, at 705. But rarer still—and by far the greater affront to Congress—should be the occasions when this Court invents statutory exceptions that are simply not there. It is one thing for this Court to defer to more than a century of practice unquestioned by Congress. It is quite

8 See, e. g., Victims of Child Abuse Act of 1990, 104 Stat. 4792, 42 U. S. C. § 13001 et seq.; Family Violence Prevention and Services Act, 98 Stat. 1757, 42 U. S. C. $ 10401 et seq.; Parental Kidnaping Prevention Act of 1980, 94 Stat. 3568, 28 U. S. C. $ 1738A; Adoption Assistance and Child Welfare Act of 1980, 94 Stat. 500-521, 42 U. S. C. $$ 620–628, 670–679a; Child Abuse Prevention and Treatment and Adoption Reform Act of 1978, 92 Stat. 208– 211, 42 U. S. C. $85111-5115; Child Abuse Prevention and Treatment Act, 88 Stat. 4, 42 U. S. C. $5101 et seq.

Like the diversity statute, the federal-question grant of jurisdiction in Article III of the Constitution limits the judicial power in federal-question cases to “Cases, in Law and Equity.” Art. III, § 2. Assuming this limitation applies with equal force in the constitutional context as the Court finds today that it does in the statutory context, the Court's decision today casts grave doubts upon Congress' ability to confer federal-question jurisdiction (as under 28 U. S. C. $ 1331) on the federal courts in any matters involving divorces, alimony, and child custody.

BLACKMUN, J., concurring in judgment

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another to defer on a pretext that Congress legislated what in fact it never did. Although there is no occasion to resolve the issue in definitive fashion in this case, I would suggest that principles of abstention provide a more principled basis for the Court's continued disinclination to entertain domestic relations matters.

B Whether or not the domestic relations "exception” is properly grounded in principles of abstention or principles of jurisdiction, I do not believe this case falls within the exception. This case only peripherally involves the subject of “domestic relations." "Domestic relations" actions are loosely classifiable into four categories. The first, or "core,” category involves declarations of status, e.g., marriage, annulment, divorce, custody, and paternity. The second, or "semicore,” category involves declarations of rights or obligations arising from status (or former status), e. g., alimony, child support, and division of property. The third category consists of secondary suits to enforce declarations of status, rights, or obligations. The final, catchall category covers the suits not directly involving status or obligations arising from status but that nonetheless generally relate to domestic relations matters, e. g., tort suits between family or former family members for sexual abuse, battering, or intentional infliction of emotional distress. None of this Court's prior cases that consider the domestic relations “exception" involves the type of periphery domestic relations claim at issue here.

o As this Court has previously observed that the various types of abstention are not “rigid pigeonholes,Pennzoil Co. v. Texaco Inc., 481 U. S. 1, 11, n. 9 (1987); New Orleans Public Service, Inc. v. Council of New Orleans, 491 U. S. 350, 359 (1989), there is no need to affix a label to the abstention principles I suggest. Nevertheless, I fully agree with the Court that Younger abstention is inappropriate on the facts before us, because of the absence of any pending state proceeding.

STEVENS, J., concurring in judgment

Petitioner does not seek a determination of status or obligations arising from status. Moreover, any federal court determination of petitioner's claims will neither upset a prior state court determination of status or obligations appurtenant to status nor pre-empt a pending state court determination of this nature. Cf. Moore v. Sims, 442 U. S. 415 (1979) (applying Younger abstention doctrine to prevent federal court action seeking to enjoin pending state child custody proceeding brought by state authorities). While petitioner's claims do not involve a federal question or statute—the presence of which would strongly counsel against abstention, see Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 815, n. 21 (1976)—petitioner's state-law tort claims for money damages are easily cognizable in a federal court. All these considerations favor the exercise of federal jurisdiction over petitioner's claims.

JUSTICE STEVENS, with whom JUSTICE THOMAS joins, concurring in the judgment.

This should be an exceedingly easy case.* As demonstrated by each of the opinions, whatever belief one holds as to the existence, origin, or scope of a “domestic relations exception,” the exception does not apply here. However one understands 18th-century English chancery practice and however one construes the Judiciary Act of 1789, the result is the same. The judgment of the Court of Appeals must be

*The first Justice Harlan cautioned long ago that “it is the duty of all courts of justice to take care, for the general good of the community, that hard cases do not make bad law.'» United States v. Clark, 96 U. S. 37, 49 (1878) (dissenting opinion) (quoting East India Co. v. Paul, 7 Moo. 85, 111, 13 Eng. Rep. 811, 821 (P. C. 1849). Courts should observe similar caution with regard to easy cases. Cf. O'Bannon v. Town Court Nursing Center, 447 U. S. 773, 804 (1980) (BLACKMUN, J., concurring in judgment) (“[E]asy cases make bad law"); Burnham v. Superior Court of Cal., County of Marin, 495 U. S. 604, 640 (1990) (STEVENS, J., concurring in judgment). An easy case is especially likely to make bad law when it is unnecessarily transformed into a hard case.

STEVENS, J., concurring in judgment

reversed. For that reason, I would leave for another day consideration of whether any domestic relations cases necessarily fall outside of the jurisdiction of the federal courts and of what, if any, principle would justify such an exception to federal jurisdiction.

As I agree that this case does not come within any domestic relations exception that might exist, I concur in the judgment.

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