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Reserving Marriage For Adults

interior of the Delaware Legislative Hall
Delaware Legislative Hall. Photo by Flickr user diaper.

There are a lot of things 17-year-olds can’t do in the United States. But until recently, “getting married” didn’t appear on that list.

Delaware recently became the first state to ban child marriage. Gov. John Carney signed into law a bill that set the minimum marriage age in the state at 18, effective immediately. It is an act that is overdue, and we can only hope other states quickly follow suit.

For now, the other 49 states and the District of Columbia allow minors to marry under certain circumstances – usually with the approval of a parent, guardian or judge. Frontline reported that more than 207,000 people under 18 married between 2000 and 2014, mostly but not exclusively girls. Very few of these marriages are between two minors; nearly all are between minors and adults.

While Delaware was the first to enact a ban, more than 20 states have introduced legislation since 2016 designed to raise the minimum marriage age. For instance, my home state of Florida raised the minimum age to 17 earlier this year.

If a minor signs a contract to buy a car, or perform in a film, or spend a summer as a nanny, the minor is free to walk away from that contract at any time before (or, in many situations, within a certain period after) reaching legal adulthood. We have agreed that, in most instances, minors lack the legal capacity to enter into binding contracts. This principle exists to protect adolescents from those who might take advantage of their lack of experience.

As a society we have not yet gotten around to having unilaterally “voidable” marriages, although liberalized divorce laws have taken us closer. In a legal sense, marriage is a very long-lived and complex contract. So why would we allow a minor to enter into this contract at all, or at least not without similar powers to unilaterally escape it? For now, people who marry under age 18 lack even the option to file for divorce until they reach legal adulthood.

Americans under 18 have been marrying since before America as we know it existed. But the world today is very different than it was when colonists and pioneers made their way across the continent. Marriage was then the primary, and sometimes the only, option for women who did not have families wealthy enough to support them indefinitely. Given the shorter life expectancies of the day, men were not prone to wait too long to get married, either.

Nicholas Syrett, the author of “American Child Bride,” explained that in the early days of U.S. law, judges usually only got involved after a wedding occurred if someone subsequently objected. Age of consent typically did not apply to boys at all, and ranged from 10 to 12 for girls. Each state’s laws evolved slowly over time, though widespread negative views of child marriage did not take hold until well into the 19th century.

Today many marriages involving people under 18 – though by no means all of them – occur in religious communities. Many of those who oppose raising the minimum marriage age worry about such a change’s effect on members of these faiths. This was former New Jersey Gov. Chris Christie’s stated reasoning for refusing to sign a bill banning child marriage last year. But women who have married under these circumstances have later come forward to argue that, in many cases, parents give consent because they want to avoid the scandal of an illegitimate child, even when the pregnancy is the result of abuse. Jeanne Smoot, senior counsel for policy and strategy at Tahirih Justice Center, told Teen Vogue, “parental consent may sometimes mean parental coercion.”

In some places children who are sexually abused are subject to pressure to marry their abuser to provide legal protection against prosecution. The abuse victim can be pressured into asserting spousal privilege to avoid giving critical testimony. Such pressure often goes hand in hand with so-called “pregnancy exceptions;” in several states, formerly including Delaware, court clerks are compelled to issue marriage licenses if a minor is pregnant and has parental permission. Often, in case of pregnancy, no minimum marriage age exists.

Such cases are reason enough to justify Delaware’s policy decision. In addition, a 2015 analysis by the World Policy Analysis Center found that marrying before age 18 “undermines girls’ health, education, and economic opportunities, and increases their risk of experiencing violence.” This is true in the United States, just as it is in the developing world. And while the majority of minors who marry are girls, it is hard to imagine outcomes are substantially better for boys in similar circumstances.

In 2017 17-year-old Cassandra Levesque campaigned to raise New Hampshire’s minimum marriage age to 18, but the bill died in the state legislature. Some of the bill’s opponents said that Levesque, a teenager and a Girl Scout, should not have a say in such matters. As Fraidy Reiss, the director of the anti-child marriage nonprofit Unchained at Last, told The Guardian, “So they think she’s old enough for marriage, but not old enough to talk about it.”

We don’t live on the frontier anymore. We don’t limit education to a few years in a one-room school house. In this country and culture, the age of the child bride (or groom) is past, with good reason.

Someone who is not old enough to buy a beer is not old enough to get married. It’s that simple. Delaware, the first state, is the first state to get this issue right in the 21st century.

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