The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness.1
INTRODUCTION
As an institution integral to family life, the state has always played a regulatory role in marriage.2 But, until recently, a glaring legal issue has been missing from the conversation surrounding marriage in the United States: our child marriage problem. Americans have many misconceptions about child marriage.3 We tend to think of child marriage as happening in foreign, developing countries or among isolated or immigrant communities, but recent reports show that the practice is pervasive throughout America’s borders.4 “Loopholes” in state marriage laws have enabled children to marry in our own backyards.5
Between 2000 and 2015, at least 207,459 minors were married in the United States.6 Approximately ninety percent of minors who married were female—mostly sixteen- or seventeen-years-old.7 On occasion, however, children as young as ten, eleven, and twelve were granted marriage licenses in Alaska, Louisiana, South Carolina, and Tennessee.8 Only some of these marriages involved two minors.9 A vast majority of the time, a minor’s spouse was eighteen, nineteen, or in his early twenties, but around 500 minors were permitted to marry partners in their forties, fifties, and sixties.10 As the law stands in about half of the states, a child bride can wed at almost any age so long as she has a parent’s consent.11
While it is true that the number of child marriages has, overall, dropped, child marriage still persists across the United States—especially among rural, low-income populations,12 like in Idaho, where 84 out of every 10,000 marriages over the past fifteen years included a child.13 Idaho is one of eighteen states that do not set an age floor for marriage.14 In those states, a child can be married at any age if the statutory exceptions are met.15 Currently, the minimum age at which one could legally marry without exception is highest (at eighteen) in only two states: Delaware and New Jersey.16 Six states follow with no marriage permitted for individuals under seventeen.17 In those states, there are no circumstances that would permit anyone under the age of seventeen to wed.18 But those types of statutes have not been adopted across the nation.19 For example, a 1907 New Hampshire law permitting a thirteen-year-old girl to marry with parental consent was on the books until June 2018; now children must be sixteen in New Hampshire before they can legally wed.20
Domestic child marriage is an ongoing problem that demands—and is finally receiving—media and political attention.21 The U.S. State Department considers forced child marriage a “human rights abuse”22 and has condemned the practice on personal and societal grounds.23 International treaties expressly outlaw child marriage.24 The United States has dedicated millions of dollars to combating child marriage abroad through the United States Agency for International Development,25 but domestic child marriage has not received the same attention.26 The time has come to turn public sentiment and our resources homeward.
This Note explores child marriage in the United States. Part I considers the scope of child marriage and provides legal and historical background on marital age restrictions (also known as nonage statutes).27 Part II considers arguments for and against a total ban of child marriage that would create a blanket eighteen-plus-to-marry age requirement in states. Part III concludes that a total ban is not yet a perfect fit for all states. Instead, it argues that no marriage should be permitted when a party is under seventeen, with increasing flexibility and deference to the parties as the child ages so long as there are effective procedural mechanisms in place to ensure that a seventeen-year-old seeking to marry is doing so of her own volition and that the marriage is in her best interest. Part IV addresses possible counterarguments to this Note’s proposal. Ultimately, this Note concludes that the statutory scheme controlling marital age—though broken—is not beyond repair.
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