Monday, March 5, 2018
Teri Dobbins Baxter has posted a new article on SSRN titled Child Marriage as Child Abuse and Constitutional Violation. Here is the abstract:
According to a study conducted by the Tahirih Justice Center, more than 200,000 children under age 18 were married between the years 2000 and 2015 in the United States. Although all states have statutory minimum age requirements for marriage, there are exceptions in some states that allow children as young as eleven years old to marry with the consent of parents or courts. While the parental and judicial consent requirements are intended to protect children, sometimes parents are complicit in the exploitation of the child, and judges are often unwilling or unable to determine whether the marriage is in the child’s best interests. In fact, in many cases, young girls who were impregnated in violation of statutory rape laws were encouraged to marry their rapists. In those cases, the parents and courts are not protecting the child; they are legalizing child abuse.
The Constitution protects children as well as adults. If minors are legally incapable of giving informed consent to marry, then parental and judicial consent exceptions allow minors to be married without their consent. This Article argues that such marriages violate minors’ rights under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Allowing adults to marry young girls and take advantage of the marriage exception to states’ statutory rape laws deprives the girls of the protection that the laws provide to unmarried girls. Furthermore, allowing minors to marry when they lack the maturity to understand or appreciate the consequences of marriage deprives them of their fundamental right to choose whether and who they will marry.
In order to protect their constitutional rights, children who are incapable of giving informed consent should never be allowed to marry. While some older minors may be mature enough to make an informed choice about marriage, the Article concludes that states may restrict marriage to those over eighteen years of age. The mature minor’s constitutional rights are not violated because the restriction merely delays a minor’s ability to exercise their right to marry rather than foreclosing it entirely. If states choose to allow those mature minors to marry, they should take their parens patriae obligation seriously and conduct an evidentiary hearing to verify that the minor is not being forced or coerced into the marriage, and that marriage is in the minor’s best interests.