Photo by Samantha Gades on Unsplash
Bailey Wharton, Associate Member, University of Cincinnati Law Review
I. Introduction
Despite the fact that the median age of Americans at their first marriage has been rising year after year,[1] underage marriage remains a widespread issue in the United States.[2] A 2021 study looked at marriage certificates from 44 U.S. states[3] and found almost 300,000 minors were legally married between 2000 and 2018.[4] Of those minors married, 86% were girls, and although 96% of these minors were married at age 16 or 17, the data shows that children as young as 10 years old were granted marriage licenses.[5] In fact, “some 60,000 marriages since 2000 occurred at an age or spousal age difference that should have been considered a sex crime.”[6] In the U.S., minimum marriage age varies state-by-state, and only twelve states limit marriage to legal adults.[7]
This article will begin by providing a brief background on the current status of U.S. child marriage laws and overview of recent and pending legislation involving child marriage. This article will then discuss why it is so difficult for states to raise the minimum marriage age to 18 and whether the U.S. will ever see a blanket ban on child marriage.
II. Background
A. Status of US Laws
As of July 2021, only six U.S. states ban child marriage with no exception.[8] This means that child marriage is still technically legal in the 44 other U.S. states.
According to a report published by the Tahirih Justice Center, eight states have an age-17 floor,[9] twenty three states (plus D.C.) have an age-16 floor,[10] four states set the age floor below 16,[11] and nine states do not set a statutory age floor.[12] Sixteen states require judicial approval before a minor can marry,[13] fourteen states (plus D.C.) allow court clerks to issue marriage licenses for all minors,[14] one state allows minors younger than 16 to marry without judicial involvement,[15] and four states expressly permit pregnancy to lower the minimum marriage age.[16]
B. Recent Changes and Pending Legislation
Since 2016, there have been twenty-seven states that “have strengthened their marriage-age laws.”[17] New York and Rhode Island became the latest states to outright ban child marriage this summer when R.I. Governor McKee signed a bill eliminating the parental consent exception for minors under eighteen,[18] and former N.Y. Governor Cuomo signed “Naila’s Law,”[19] a bill eliminating prior exceptions that allowed minors under the age of eighteen to marry.[20] In October, West Virginia Delegate Joshua Higginbotham met with lawmakers to propose a bill that would raise the minimum marriage age to eighteen.[21] On November 16, the Massachusetts legislature held a joint hearing on a bill that would officially ban child marriage by setting the minimum marriage age to eighteen.[22]
There are currently two relevant bills pending in Congress. The first, H.R.485 Stronger Child Abuse Prevention Treatment Act,[23] seeks to amend Section 110 of the Child Abuse Prevention and Treatment Act to include a “Study and Report on Marital Age of Consent.”[24] The second, related bill, H.R. 1606 End Forced Child Marriages Act,[25] if passed, would require “the Department of Health and Human Services to study and report on state laws regarding the minimum marriage age and the prevalence of marriage involving a child who is under the minimum marriage age.”[26] While neither bill aims to create a federal minimum marriage age, their very existence demonstrates that child marriage is clearly an issue worth investigating further.
III. Discussion
A bill seeking to end child marriage in Idaho died in the Republican-controlled legislature in 2019 because it “went too far” according to Idaho State Rep. Bryan Zollinger.[27] The bill only sought to raise the minimum age to marry to sixteen.[28] If raising the minimum marriage age to sixteen is “too far” for Idaho, there is little hope of raising the minimum age to eighteen nationally any time soon.
Why has it been so difficult for states to enact legislation that would raise the minimum age to marry to eighteen? The opposition to raising the minimum marriage age to eighteen can be categorized into three main arguments: (1) such legislation constrains personal autonomy,[29] (2) such legislation is an improper intrusion by the government on the fundamental right to marry,[30] and (3) there are already sufficient safeguards against child marriage.[31]
The other side of the argument, though, is the fact that these sub-eighteen marital age requirements allow minors to enter into legally binding contracts despite the fact they are children. Supporters of raising the minimum age argue that “lawmakers often conflate the maturity of some teens with the legal capacity to enter a marriage, which is considered a legal contract that many laws specify only adults can enter into or annul . . . You cannot be allowed to be married before you were allowed to file for divorce.”[32]
Thus, there appears to be an impasse between the necessity of protecting children and preserving the fundamental right to marry. One proposed solution would be for Congress to enforce a federal minimum marriage age requirement via the Treaty Power by “utilizing Article 23 of the Covenant on Civil and Political Rights . . . which states that ‘[n]o marriage shall be entered into without the free and full consent of the intending spouses.’”[33] This suggestion focuses on the issue of legal consent, arguing that “people under the age of eighteen lack the legal capacity to consent to a serious contract such as marriage.”[34] Enforcing such a minimum age requirement prioritizes the protection of children over the idea that marriage is an absolute fundamental right safe from governmental interference.[35]
Unfortunately, the likelihood of a federal minimum marriage age is quite low, as the Supreme Court has “consistently held over time that areas of marriage and domestic relations are governed by the states.”[36] The right to marry has also been a central protection safeguarded by the Supreme Court—consistently holding “in favor of the “freedom of personal choice in matters of marriage and family life.”[37] Therefore, this issue can only be solved by state legislatures.
IV. Conclusion
While there may be some merit to the struggle between protecting children and the freedom to marry, there is absolutely no reason why children as young as twelve, thirteen, or fourteen need to be married. It really is this simple: “[l]egislation to this effect harms no one except child rapists, costs nothing and protects children from a human rights abuse.”[38]
[1] Historical Marital Status Tables (Figure MS-2 Median age at first marriage: 1890 to present), United States Census Bureau (Dec. 2020), https://www.census.gov/content/dam/Census/library/visualizations/time-series/demo/families-and-households/ms-2.pdf.
[2] See Marci A. Hamilton, 2020 Report on Child Marriage in the United States A National Overview of Child Marriage Data and Law, ChildUSA 7 (May 8, 2020), https://childusa.org/wp-content/uploads/2020/04/2020-Report-on-Child-Marriage-in-the-US.pdf.
[3] United States’ Child Marriage Problem, Unchained At Last 4 (Apr. 2021), https://www.unchainedatlast.org/wp-content/uploads/2021/08/Study-PDF-FINAL-2021-08-19.pdf [https://perma.cc/Y4H5-4JNJ] (The study received full data from 32 states, partial data from 12 states and D.C., and no data from 6 states).
[4] Id. at 5.
[5] Id.
[6] Id. at 2.
[7] Understanding State Statutes on Minimum Marriage Age and Exceptions, Tahirih Justice Center 2, https://www.tahirih.org/wp-content/uploads/2021/09/August-2021-State-Statutory-Compilation-1.pdf [https://perma.cc/JN45-GF7K] (updated Aug. 26, 2021) (Six states set the marital age floor at eighteen with no exceptions and another six states require both parties to be legal adults with the only exception to the age eighteen being court-emancipated minors).
[8] Id. (Delaware, New Jersey, Pennsylvania, Minnesota, Rhode Island, and New York).
[9] Id. (Florida, Georgia, Kentucky, Nebraska, Ohio, Oregon, and Tennessee).
[10] Id. (Alabama, Arkansas, Arizona, Colorado, Connecticut, District of Columbia, Idaho, Illinois, Indiana, Iowa, Louisiana, Maine, Missouri, Montana, New Hampshire, North Carolina, North Dakota, South Carolina, South Dakota, Texas, Utah, Vermont, Virginia, and Wisconsin).
[11] Id. (Alaska (age 14), Hawaii (age 15), Kansas (age 15), and Maryland (age 15)).
[12] Id. (California, Massachusetts, Michigan, Mississippi, New Mexico, Oklahoma, Washington, West Virginia, and Wyoming. Some states do not set a statutory age but suggest an age floor via case law).
[13] Id. (California, Colorado, Connecticut, Georgia, Indiana, Iowa, Kentucky, Louisiana, Massachusetts, Montana, Nevada, New Hampshire, Ohio, Texas, Utah, and Virginia).
[14] Id. (Alabama, District of Columbia, Florida, Idaho, Maine, Maryland, Missouri, Nebraska, North Dakota, Oregon, South Carolina, South Dakota, Tennessee, Vermont, and Wisconsin).
[15] Id. (Maryland allows a minor to marry without judicial involvement with proof of pregnancy and parental consent).
[16] Id. (Arkansas, Maryland, New Mexico, and Oklahoma).
[17] Making Progress, But Still Falling Short, Tahirih Justice Center 5, 18, https://www.tahirih.org/wp-content/uploads/2021/09/August-2021-Reflection-Paper_Making-Progress-But-Still-Falling-Short-1.pdf [https://perma.cc/ZT2R-Q7UC] (updated Aug. 26, 2021) (“Alabama is the only state that has recently regressed in its approach to child marriage.”).
[18] Rhode Island governor signs bill banning child marriage, AP (June 7, 2021) https://apnews.com/article/rhode-island-marriage-lifestyle-14da978b50996042e62bcdbceed85ace; H. 5387, Jan. Sess., A.D. 2021, Reg. Sess. (R.I. 2021).
[19] Maya Brown, She was forced to wed at 13. Now She’s helped make child marriage illegal in N.Y., NBC News, https://www.nbcnews.com/news/asian-america/was-forced-wed-13-now-s-helped-make-child-marriage-illegal-ny-rcna1730 [https://perma.cc/7JUX-Y8GU] (updated Aug. 24, 2021, 5:58 AM EDT) (The bill is named after child marriage activist Naila Amin, who was forced to marry at age 13 in Pakistan).
[20] UNICEF USA Applauds Enactment of New York State Child Marriage Bill, UNICEF USA (July 23, 2021), https://www.unicefusa.org/press/releases/unicef-usa-applauds-enactment-new-york-state-child-marriage-bill/38835 [https://perma.cc/6864-MH2S]; Brown, supra note 19 (“Cuomo signed legislation in New York in 2017 that raised the age of consent to marry from 14 to 18, but 17-year-olds could be married with parental or judicial consent.”); S. 3086, 2021-2020 Legis. Sess. (N.Y. 2021).
[21] John Lynch, West Virginia bill would ban child marriages, WTRF, https://www.wtrf.com/news/west-virginia-headlines/west-virginia-bill-would-ban-child-marriages/ [https://perma.cc/NK35-9BPA] (updated Oct. 13, 2021, 11:57 AM EDT) (Child marriage is a personal issue for Higginbotham as his sister is a survivor of child marriage). See Joshua Higginbotham (@Higgenbotham4WV), Twitter (Oct. 11, 2021, 4:36 PM) https://twitter.com/Higginbotham4WV/status/1447662380901715974 [https://perma.cc/E7GV-MXAH]. See also Lacie Pierson, Higginbotham resigns from House of Delegates, Charleston Gazette-Mail (Nov. 8, 2021) https://www.wvgazettemail.com/news/kanawha_valley/higginbotham-resigns-from-house-of-delegates/article_272689c7-228b-5dfb-b516-9435030d6e46.html [https://perma.cc/J9TF-ML3T] (With Higginbotham’s resignation from the West Virginia House of Delegates, it is unclear where this bill stands as he was a major proponent in trying to get the bill passed).
[22] Aaron Velasco, Groups against child marriage gather at State House to support bill to formally ban practice, Boston University News Service (Sept. 22, 2021), https://bunewsservice.com/activists-against-child-marriage-gather-at-state-house-in-support-of-bill-to-formally-ban-practice/ [https://perma.cc/H56H-AJ5J]; An Act to End Child Marriage in Massachusetts, H. 1709, 192nd Gen. Ct. (Mass. 2021). See H. 1709 Bill History, The 192nd General Court of the Commonwealth of Massachusetts, https://malegislature.gov/Bills/192/H1709 [https://perma.cc/SD7J-CS49] (last visited Nov. 16, 2021). See also Marcus E. Howard, Child marriage opponents await Massachusetts legislative action, Boston.com (Sept. 18, 2021), https://www.boston.com/news/local-news/2021/09/18/child-marriage-opponents-await-massachusetts-legislative-action/ [https://perma.cc/4EL8-87UR] (“[Prior] [a]ttempts to institute a minimum marriage age in Massachusetts have all failed…In 2020, a bill prohibiting marriage before age 18 unanimously passed in the state Senate, but did [not] make it out of the state House of Representatives.”).
[23] H.R. 485, 117th Cong. (2021) (The bill was passed in the House in March 2021 and has subsequently been read twice in the Senate and referred to the Committee on Health, Education, Labor, and Pensions).
[24] Id. (The study would review “the State law regarding the minimum marriage age; and [] the prevalence of marriage involving a child who is under the age of such minimum marriage age” and examine “the extent to which any statutory exceptions to the minimum marriage age in such laws contribute to the prevalence of marriage involving a child described in paragraph (1)(B); [] whether such exceptions allow such a child to be married without the consent of such child; and [] the impact of such exceptions on the safety of such children.”).
[25] H.R. 1606, 117th Cong. (2021) (The bill was introduced in the House of Representatives in March 2021 and subsequently referred to the House Committee on Education and Labor).
[26] Congressional Research Service Summary of H.R. 1606, Congress.gov, https://www.congress.gov/bill/117th-congress/house-bill/1606 (last visited on Nov. 16, 2021).
[27] Dartunorro Clark, End child marriage in the U.S.? You might be surprised at who’s opposed, NBC News (Sept. 8, 2019, 8:00 AM EDT), https://www.nbcnews.com/politics/politics-news/end-child-marriage-u-s-you-might-be-surprised-who-n1050471 [https://perma.cc/7MVC-K8L6].
[28] Id.
[29] Emma Coleman, In Most States, Child Marriage is Legal. Some Legislators Are Trying to Change That, Route Fifty (Nov. 8, 2019) https://www.route-fifty.com/management/2019/11/child-marriage/161184/ [https://perma.cc/6ADF-J9YR] (“[A]ny limit on marriage is government overreach.”). See also Clark, supra note 27 (In explaining his opposition to a bill that would raise the minimum marriage age in Idaho to sixteen, state Rep. Bryan Zollinger said, “Obviously, I’m against child marriage…But basically marriage is a contract between people that shouldn’t require government permission.”); Coleman, supra note 29 (“the state shouldn’t limit the options of teens who feel that they need to marry.”).
[30] Coleman, supra note 29 (The ACLU opposed a California bill seeking to set the minimum marriage age at eighteen, arguing that the bill “unnecessarily and unduly intrudes on the fundamental rights of marriage without sufficient cause and that largely banning marriage under 18, before we have evidence regarding the nature and severity of the problem, however, puts the cart before the horse.” (internal citations omitted)).
[31] Clark, supra note 27 (“[O]pponents of change have argued that raising the minimum marriage age is an ineffective solution since other child welfare laws already can prevent young girls from being exploited…[and] there are sufficient safeguards in state law–such as a judicial review of underage marriages–to prevent older men from exploiting young girls.”). Cf. Coleman, supra note 29 (“Others have also argued that child marriage laws are unenforceable, since some people will just get married in religious ceremonies, away from the eyes of the state.”).
[32] Clark, supra note 27.
[33] Caylin Jones, Saying ‘I Don’t’ to Child Marriage: Creating a Federal Minimum Marital Age Requirement through the Treaty Power, 26 Sw. J. Int’l L. 396, 398 (2020).
[34] Id. (quoting International Covenant on Civil and Political Rights art. 23, Dec. 16, 1966, 999 U.N.T.S. 171).
[35] Id. at 399.
[36] Vijayasri G. Aryama, I Don’t: The Need for a Solution to the Child Marriage Problem in the United States, 39 Women’s Rts. L. Rep. 386, 424 (2018).
[37] Id. at 406 (quoting Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639 (1974)).
[38] United States’ Child Marriage Problem, supra note 3, at 2.
