In In re Burrus, the Supreme Court stated in dicta that “[t]he whole subject of domestic relations of husband and wife, parent and child, belongs to the laws of the states and not to the United States.” 136 U.S. 586, 593 (1890). This dicta is now firmly entrenched in federal jurisprudence thanks to Ankenbrandt v. Richards, a case in which the Court established the domestic relations exception (DRE). 504 U.S. 689 (1992). In Ankenbrandt however, even though the DRE applied to litigants seeking domestic relations decrees in federal court through diversity actions, the Court foresaw a potential conflict between federal questions and diversity jurisdiction, noting that “whether the interest of States remains a sufficient justification today . . . is uncertain in view of the expansion in recent years of federal law in the domestic relations area.” Id. at 715 (Blackmun, J., concurring).
While the DRE unquestionably remains a bar to jurisdiction in diversity suits, the Supreme Court and lower courts have redefined traditional notions of marriage, procreation, contraception, family relationships, and parental choices concerning children, finding such choices are central to the liberty protected by the Fourteenth Amendment, which frequently serves as a check on state prerogatives that deny liberty. As a consequence, many litigants have brought federal question suits to challenge the constitutionality of state domestic relations laws and procedures.
On this subject, the Fourth, Fifth, Sixth, Ninth, and Tenth Circuits have held that the DRE presents no bar to subject matter jurisdiction on federal questions. Notwithstanding the uniformity among these circuits or the fact that the Supreme Court has never squarely addressed the issue, a number of courts have noted that the DRE "remains in disarray" in that some courts still use the DRE in federal-question cases.
Until Ashmore v. New York (pending on the Supreme Court docket: No. 12-1181), the conflict over the DRE existed only at the district level within the Second Circuit: “[s]ome district courts in the Second Circuit have applied the domestic relations exception in federal question cases, but other Circuits have held that the exception is limited to diversity suits.” Johnson v. Rodrigues, 226 F.3d 1103, 1111 n.4 (10th Cir. 2000).
Ashmore asks the Court to resolve this split and raises two questions: (1) whether parties may bring challenges to the constitutionality of state domestic relation laws and procedures pursuant to 28 U.S.C. § 1331 if no relief in the form of appellate review of a state-court judgment is sought; and, (2) whether expert opinion based upon the hearsay statements of third parties is inadmissible if the third-party statements are not held as testimonial evidence subject to confrontation at trial.
On the first question, in identical cases, the Sixth and Tenth circuits issued lengthy and reasoned opinions that directly conflict with the Second Circuit’s summary order in Ashmore, holding that that it is appropriate for the “[district] court to examine whether certain judicial proceedings, which happened to involve a divorce, comported with the federal constitutional guarantee of due process.” Catz v. Chalker, 142 F.3d 279, 292 (6th Cir. 1998). As to the second question, there is a deep split in authority among state and federal courts, which a number of media outlets have characterized as the most pressing and controversial issue in custody litigation today. It is also worth noting that the Supreme Court is currently considering a cert. petition in a case raising related issues (Allshouse v. Pennsylvania), which resulted in a GVR back in 2011.
 See e.g. Lawrence v. Texas, 539 U.S. 558, 578-79 (2003); Planned Parenthood of Se. Pa. v Casey, 505 U.S. 833, 851 (1992); Palmore v. Sidoti, 466 U.S. 429, 430 (1984); Zablocki v. Redhail, 434 U.S. 374, 376 (1978); Carey v. Population Servs. Int'l, 431 U.S. 678, 681-82 (1977); Roe v. Wade, 410 U.S. 113, 116, 120 (1973); Eisenstadt v. Baird, 405 U.S. 438, 440 (1972); Boddie v. Connecticut, 401 U.S. 371, 372 (1971); Loving v. Virginia, 388 U.S. 1, 3-4 (1966); Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965); and, Pierce v. Society of Sisters, 268 U.S. 510, 510 (1925).
 See e.g. Atwood v. Fort Peck Tribal Ct. Assiniboine, 513 F.3d 943, 947 (9th Cir. 2008) (“[w]e therefore join the Fourth and Fifth Circuits in holding that the domestic relations exception applies only to the diversity jurisdiction statute”); Johnson v. Rodrigues, 226 F.3d 1103, 1111-12 (10th Cir. 2000) (rejecting domestic relations exception because federal court could reach federal question and remand custody issue back to state court for determination); Catz v. Chalker, 142 F.3d 279, 293 (6th Cir. 1998) (overruling dismissal of due process claims because it did not implicate merits of divorce decree); United States v. Bailey, 115 F.3d 1222, 1231 (5th Cir. 1997) (“[b]ecause this case clearly arises under this Court's federal question jurisdiction, the domestic relations exception presents no bar”); and, United States v. Johnson, 114 F.3d 476, 481 (4th Cir. 1997) (“[t]he 'jurisdictional exception,' in the first place, is applied only as a judicially implied limitation on the diversity jurisdiction; it has no generally recognized application as a limitation on federal question jurisdiction”).
 See e.g. Harbach, Meridith Johnson, Is the Family a Federal Question, 66 Wash. & Lee L. Rev. 131 (2009).
 See e.g. Ben Cheng, Petition of the day, SCOTUSblog (Aug. 27, 2012, 11:22 PM), http://www.scotus blog.com/2012/08/petition-of-the-day-323/; Eaton, Leslie. "For Arbiters in Custody Battles, Wide Power and Little Scrutiny" New York Times (May 23, 2004), http://www.nytimes.com/2004 /05/23/nyregion/for-arbiters -in-custody-battles-wide-power-and-little-scrutiny.html?page wanted=all&src=pm; Hoult, Jennifer. “The Evidentiary Admissibility of Parental Alienation Syndrome: Science, Law and Policy” ABA Children’s Legal Right’s Journal, Vol. 26, No. 1, Spring 2006, (December 12, 2012) http://ww.w.leadershipcouncil.org/docs/ Hoult.pdf; Childress, Sarah. "Fighting Over the Kids" Newsweek, (September 24, 2006) http://www.thedailybeast. com /newsweek/ 2006/09/24/fighting-over-the-kids.html>.