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How Is Child Marriage Still Legal in the U.S.?

This past spring, as part of my work teaching international relations, I oversaw a team of students assigned to create a first-of-its kind, comprehensive report on the status of women in the United States. Four of the students working on the project were from other countries—Afghanistan, Bolivia, Nepal, and Nigeria—and many of the findings pierced their idea of America as a nation that protects women and girls. One issue stood out among the rest: child marriage.

USAID officials have declared child marriage a human-rights violation. Last year, the agency laid out a “roadmap” to end child marriage worldwide by 2030. And yet only 10 U.S states ban marriage under age 18 without exception. Five states have no minimum age of marriage as long as parental and/or judicial consent is given. The rest of the states allow child marriage with age limits—usually 16 to 17, though sometimes younger—as well as parental and/or judicial consent.

Congress has set some limits on child marriage, but because marriage is regulated at the state level, the United States has no national law banning child marriage and no national minimum age to marry. Several states have recently revived debates about child marriage; earlier this year, Michigan banned the practice. But many more states need to take action.

Child marriage can deprive children—mostly girls—of agency and put them in abusive situations. In most states, a man who has sex with an underage girl in circumstances that would typically qualify as statutory rape can avoid the charge if he is married to the minor, with some exceptions. In some instances, child-custody rulings can be upended if a child marries with the permission of a noncustodial parent. And in most cases of child marriage, the minor does not technically have the legal standing to initiate a divorce until they are 18 (unless a judge decides otherwise in a prior hearing), and may not be allowed to stay in domestic-violence shelters because they are not an adult.

The fact that the United States has not issued a ban on under-18 marriage without loopholes—as countries including Denmark, Finland, Germany, Ireland, the Netherlands, Sweden, England, and Wales have done—has much to do with our federalist system. The slow progress at the state level reflects the political forces that have defended this practice. On the right, some conservatives oppose child-marriage bans out of support for the institution of marriage; on the left, some civil-liberties groups argue that child-marriage bans can infringe on minors’ ability to make important decisions about their life.

Despite these domestic debates, USAID has pressed to end child marriage elsewhere around the world because of its negative effects on girls and their children. A decade ago, the Council on Foreign Relations published a detailed summary of those effects, which include higher risk of maternal mortality and morbidity, premature and low-birthweight babies, poverty, STD and HIV infection, intimate-partner violence, and food insecurity for the family, as well as truncated educations for the girls entering marriage.

The long trajectory of child marriage in the United States is headed in the right direction. In America’s early days, most colonial-era women outside frontier areas married around age 20, though the legal age of marriage under English common law was 12 for girls. After the Revolution, the age at which marriage was allowed without parental or judicial consent in many states went from 12 to 15 then to 18 years of age by the turn of the 20th century, though often with exceptions that still allowed minors to marry. The number of child marriages in the United States today is relatively small—estimated at 2,500 children married in 2018, down from 76,000 in 2000. But that low number makes it only more puzzling that the United States has not legally prohibited the practice altogether.

At the federal level, the government is limited to regulating child marriage only when it involves interstate or international travel, or when such marriages occur on federal territory. In these cases, child marriage is strictly prohibited by federal law. The Department of Justice could do more—issuing model statutory guidance for banning under-18 marriage, for instance—but this guidance would not be constitutionally binding on the states. In the 2013 United States v. Windsor decision, which struck down the federal Defense of Marriage Act, the Supreme Court restated the established principle of U.S. jurisprudence that the “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States.”

Why have so few states banned child marriage without exception? The answer emerges when you look at the arguments made by those who oppose raising the marriage age in one Republican-leaning state and in one blue state where the issue was recently debated: North Carolina and California.

Until 2021, North Carolina allowed 14- and 15-year-old girls to marry by court order if they became pregnant or had a child with their future spouse. That year, the Republican-controlled state legislature considered a bill to ban under-18 marriage. According to one of the bill’s sponsors, some lawmakers opposed the ban because they had family members who had married as teenagers. Conservatives who oppose child-marriage bans tend to argue that teenagers are capable of entering into successful marriages and that under-18 bans can force pregnant teens to give birth out of wedlock, rather than allowing them the choice to marry.

Ultimately, a compromise position prevailed in North Carolina with bipartisan support, resulting in a new law that permits marriage at ages 16 and 17 with parental or judicial consent and if the spouses have no more than a four-year age gap. This means that the legal minimum age for marriage in North Carolina is now at last the same as the legal minimum age for consent to sex, though minors still can get married under certain conditions. The state was able to make a change, but only to a point.

In California, an effort to tighten child-marriage law has failed so far, in part because of opposition from the left. California has no minimum age of marriage, even though the minimum age of consent for unmarried persons is 18; depending on the age gap, statutory rape can be treated as either a misdemeanor or a felony. This means that in California, you can have sex with your husband at age 12 (if a parent and a court sanction the marriage), but you can’t have sex with your boyfriend until 18. And, yes, you have to be 18 to seek a divorce in California.

In 2017, California lawmakers proposed raising the marriage age to 18 without exceptions, and a Democratic legislator plans to introduce a new bill next year to do the same. Among the groups that will likely oppose such a measure are progressive organizations such as the ACLU, the Children’s Law Center, and Planned Parenthood. In 2017, the ACLU said the proposed ban “unnecessarily and unduly intrudes on the fundamental rights of marriage without sufficient cause,” and the Children’s Law Center of California, which represents children in the foster-care system, said, “For some minors, the decision to marry is based on positive, pro-social factors and the marriage furthers their personal, short and long-term goals.” A Planned Parenthood Affiliates of California spokesperson framed the issue differently, telling the Los Angeles Times earlier this year that any proposed legislation should “not impede on the reproductive rights of minors.” In other words, Planned Parenthood fears that if minors can’t legally consent to marriage, the argument could be made that they shouldn’t be able to consent to an abortion either. The politics of child marriage aren’t as simple as conservatives wanting to protect it and liberals wanting to ban it.

For those who oppose child marriage, one line of argument offers hope that the federal government might have a role to play. In a 2020 law-journal article, the lawyer Caylin Jones pointed out that in 1992 the United States ratified a human-rights treaty called the International Covenant on Civil and Political Rights, which, among other things, states that “no marriage shall be entered into without the free and full consent of the intending spouses.” “Full consent” implies that the individual has the capacity to agree to the marriage, and the Supreme Court has noted in other cases that minors lack full capacity (which is why, for example, the death penalty cannot be applied to them). According to Jones, this means that the federal government, in order to ensure the terms of the covenant, might have a right to establish a nationwide minimum age of marriage. Once the United States ratifies an international treaty, it can supersede national and state law, though legislative action might be required.

For the covenant to take effect without federal legislation, the Supreme Court would have to overturn a previous ruling, and the current Court appears to have little taste for taking any historical powers out of the hands of the states. In the meantime, the action remains at the state level. Advocates and legislators should focus on establishing a legal age of marriage in the five states that currently have no minimum age—California, Washington, New Mexico, Mississippi, and Oklahoma. In other states without a blanket ban, legislators can eliminate any marriage loopholes in their statutory-rape laws: Evading a statutory-rape charge through marriage should not be possible in the United States. Another crucial step is to bring states’ age of consent and age of marriage into harmony so that a person can never legally marry before they can legally consent to sex. Last, but certainly not least, states must ensure that married minors have the right to initiate divorce and the right to enter domestic-violence shelters.

And perhaps USAID should preface any future remarks about eradicating child marriage elsewhere by noting how far the United States itself has to go.

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