While the United States has worked to address the issue of child marriage abroad, child marriage still occurs on U.S. soil through a loophole: many state marriage statutes allow minors to marry with the permission of their parents or with judicial approval—sometimes, as young as twelve. This is especially problematic where parents marry their pregnant daughters to their rapists or to men much older than themselves. In response, an increasing number of state legislators have passed bills amending their marriage laws, raising the minimum age of marriage, in an effort to protect minor girls.
This Note explores the rapidly changing laws surrounding child marriage in the United States, analyzing the various arguments for and against it. In doing so, it seeks to determine which minors are marrying, whether minors may have any constitutional right to marriage, and whether minors wishing to marry might be able to stake a claim to religious liberty. This Note ultimately argues that states should tread with caution in making such drastic legislative changes. Though the legislators and lobbyists advocating for this reform undoubtedly have good intentions in seeking to advance the rights and the well-being of young women and minor girls, their actions could, in effect, do just the opposite. The dangerous, paternalistic rhetoric with which they are passing this legislation—whereby they argue that minor girls are incapable of rational decision-making—could have unintended consequences for the rights of minors in other contexts. This includes access to reproductive healthcare, medical treatment, organ donation, and vaccinations. Thus, even if no religious right or constitutional right to marriage exists for minors, an outright, blanket ban on child marriage is wrong on public policy grounds. This Note advocates that states must take less stringent regulatory positions towards child marriage, implementing procedural safeguards to prevent against abuse or coercion, while being cognizant of their existing needs and recognizing minors as autonomous individuals.
The full text of this Note is available to download as a PDF.