• Harvard College Law Review Facebook

© 2019 by Harvard College Law Review.

All rights reserved.

U.S. State Marriage Laws Say
“I Do” to Child Marriage

by Kyle Felter | Fall 2019

This essay will survey the current child marriage laws in the United States. The essay begins with a brief overview of child marriage laws and how they came about. The essay then remarks on three key areas in which America lacks the necessary provisions to safeguard the rights of children: state laws, immigration programs, and the legal system. The essay concludes by offering that although the United States seeks to eradicate child marriage globally, its efforts and rhetoric have been lackluster and at times internally inconsistent. Throughout the essay, a variety of recommendations are offered by which to bridge the gap between America’s rhetoric and laws surrounding child marriage.

If one were to mention child marriage to a crowded room, images of lower-developed countries in areas like Africa and South Asia would most likely populate in the minds of listeners. Indeed, the media and educational institutions have ingrained this very image in the minds of the American public. Yet, the part of the narrative that is often left out is that this tragedy is occurring here in the United States. It has long been acknowledged that the practice of child marriage violates multiple international agreements, including Article 16, Section 2 of the United Nations Declaration of Human Rights.[1] Our nation has passionately supported the sentiment expressed in these accords yet the problem persists in America due to a variety of cultural attitudes, religious mores, and, most importantly, legal loopholes. Overall, the U.S.’s commitment to ending child marriage abroad is severely undermined by its inability to address legal loopholes at home. The federal government ought to establish incentives to encourage state legislatures to amend the legal marriage age to eighteen without exception in their states.

 

The U.S.’s brand of federalism renders it largely unable to prevent states from setting minimum marriage ages below eighteen. Indeed, only two states have outlawed marriage below the age of eighteen, Delaware and New Jersey[2]. In twenty-three states, there is no minimum age for marriage so long as the parents of the minor party(ies) consent.[3] Because of this peculiar legal structure, 200,000 minors were married in the U.S. between 2000 and 2015[4]. However, the question of domestic laws is not the full story. Comparing the marriage laws of the U.S to other countries reveals that America’s legalities lag behind certain lower-developed countries’ laws. In Afghanistan, for example, when a bride is below the age of sixteen, marriage is allowed when the permission of her father or a judge is granted.[5]  To consider a contrary example, the nation of Malawi in 2018 decreed eighteen to be the minimum marriage age without exception.[6] By contrast, nearly half of the United States have no minimum age requirements at all.

 

The American Visa Program likewise constitutes a major legal loophole to child marriage. The Visa Program, regrettably, has been a source of exploitation of the business, political, and personal sort. A 2019 Senate Committee report produced the harrowing finding that between 2007 and 2017, the U.S. Citizenship and Immigration Services (USCIS) approved over 5,500 petitions by adults to bring minor spouses or fiancés to the U.S. and close to 3,000 petitions from minors requesting to bring their adult spouses or intended marital partners.[7] The process USCIS undertakes in approving these applications is chiefly to blame. USCIS “does not require the minor to demonstrate parental or judicial consent, even if the state in which they will reside would have required it to marry,”[8] thereby circumventing state laws. The visa system’s sanctioning of child marriages emphasizes that, even on a federal level, America does not embody the ideals it swore to uphold in its assent to various international agreements pertaining to children’s rights.

 

The U.S.’s position on child marriage is clearly inconsistent with its own human rights rhetoric. Aside from giving assent to global agreements, the U.S. has passed the Violence Against Women Reautorization Act of 2013, Let Girls Learn Program, and the Global Strategy to Empower Adolescent Girls in 2016.[9] Despite these achievements, there has been little action on a state-by-state basis to eradicate child marriage. So too are America’s reform efforts sparse. Reform-minded bills, even if introduced in Congress, are highly unlikely to make it to the floor for debate.[10] The inaction of the American legal system in this regard has likewise contributed to the prevalence of child marriages. There paucity of case law pertaining to child marriage has similarly prevented the issue from receiving widespread notice. There have been few efforts, let alone decisive victories in the same, to prevent the neglect of children’s rights through judicial rulings. Even when cases are filed in court systems regarding violations of “best interest of the child” standards, child marriage and its connection to state laws are rarely discussed. The lack of conversation on this topic has allowed the dehumanizing practice to persist, causing more and more children to become entrenched in this gross human rights violation.

In the face of these obstacles, I propose several courses of action to bring America’s laws in closer accord with its rhetoric. I argue that the most effective and expedient measure is for the federal government to incentivize the individual states to outrightly ban child marriage. Such a measure will avoid a vital concern: infringing on the Tenth Amendment’s reservation of the unenumerated powers to the states. Should this incentive not come to fruition, other options remain, including increasing the level of inter-governmental communications within various departments (i.e. immigration services, legal entities, public services, etc.) to close the loopholes in the USCIS system. Finally, the U.S. must make an honest commitment to cooperate with UNICEF and other NGOs to fight child marriage.  

 

America’s blindness to the injustice of child marriage severely undermines its professed commitment to ending child marriage worldwide. More importantly, however, it endangers the lives of thousands of children. Our nation must recognize the atrocity happening in its own states and properly address the legal loopholes that have allowed this crisis to continue. Should the government not take notice, America’s stance on child rights is quick to become a point of contention in the international domain.

 

REFERENCES

[1] “Child Marriage: A Violation of Human Rights & a Deterrent to DeveloPment.” United Nations Population Fund, 2012. https://www.unfpa.org/sites/default/files/jahia-publications/documents/publications/2012/ChildMarriage_2_chapter1.pdf.

[2] Ferguson, Sarah. “What You Need To Know About Child Marriage In The U.S.” Forbes. Forbes Magazine, October 29, 2018. https://www.forbes.com/sites/unicefusa/2018/10/29/what-you-need-to-know-about-child-marriage-in-the-us-1/#554a0ed25689.

[3] Examiner, Irish. “Leave Us Kids Alone: A Look at Child Marriage in the US and Beyond.” Irish Examiner. Irishexaminer.com, December 15, 2018. https://www.irishexaminer.com/breakingnews/specialreports/leave-us-kids-alone-a-look-at-child-marriage-in-the-us-and-beyond-892211.html.

[4] Ferguson, Sarah. “What You Need To Know About Child Marriage In The U.S.” Forbes. Forbes Magazine, October 29, 2018. https://www.forbes.com/sites/unicefusa/2018/10/29/what-you-need-to-know-about-child-marriage-in-the-us-1/#554a0ed25689.

[5] Girls Not Brides. “Afghanistan - Child Marriage Around The World. Girls Not Brides.” Girls Not Brides, 2018. https://www.girlsnotbrides.org/child-marriage/afghanistan/.

[6] Girls Not Brides. “Malawi - Child Marriage Around The World. Girls Not Brides.” Girls Not Brides, 2018. https://www.girlsnotbrides.org/child-marriage/malawi/.

[7] Vogelstein, Rachel, and Alexandra Bro. “Commentary: It's Time to Close the Loopholes on Child Marriage in the U.S.” Fortune. Fortune, February 20, 2019. https://fortune.com/2019/02/20/child-marriage-minimum-age-us/.

[8] “How the U.S. Immigration System Encourages Child Marriages.” Majority Staff Report of the Committee on Homeland Security and Governmental Affairs United States Senate. United States Senate, January 11, 2019. https://www.hsgac.senate.gov/imo/media/doc/Child Marriage staff report 1 9 2019 EMBARGOED.pdf.

[9] Girls Not Brides. “United States - Child Marriage Around The World. Girls Not Brides.” Girls Not Brides, 2018. https://www.girlsnotbrides.org/child-marriage/united-states/.

[10] Clark, Dartunorro. “Advocates Slam Thousands of Child Marriages in U.S., Demand Congress Act.” NBCNews.com. NBCUniversal News Group, January 22, 2019. https://www.nbcnews.com/politics/politics-news/us-immigration-system-approved-thousands-child-marriages-past-decade-n960416.