STATE REGULATIONS ARE FAILING OUR CHILDREN: AN ANALYSIS OF CHILD MARRIAGE LAWS IN THE UNITED STATES.

AuthorSchuman, Rachel L.

TABLE OF CONTENTS

INTRODUCTION 2339 I. HISTORY OF CHILD MARRIAGE IN THE UNITED STATES 2342 A. Child Marriage Under the English Common Law 2342 B. Child Marriage Laws and the American Colonies 2343 C. Child Marriage Laws and Early States 2344 D. Modern Child Marriage Laws 2346 II. VARIATIONS IN CURRENT STATE CHILD MARRIAGE LAWS 2346 III. NEGATIVE CONSEQUENCES OF EARLY MARRIAGE 2349 A. Family Instability 2349 B. Intimate Partner Violence 2350 C. Education and Future Poverty 2351 D. Mental and Physical Health 2353 IV. STATE CHILD MARRIAGE LAWS ARE INSUFFICIENT 2355 V. FEDERAL SPENDING POWER AND UNIFORM CHILD 2357 MARRIAGE STANDARDS A. South Dakata v. Dole 2357 B. Applying Dole to Uniform Child Marriage Laws 2360 1. General Welfare and Child Marriage Laws 2361 2. Conditions Imposed by Congress Must Be 2363 Unambiguous 3. Nexus Between Child Marriage and Education 2364 4. Uniform Child Marriage Regulations Do Not 2365 Violate Children's or Parents' Constitutional a. Federalism and Uniform Child Marriage Laws 2366 b. Fourteenth Amendment and Uniform Child 2367 c. First Amendment and Child Marriage 2370 5. Conditioning Federal Education Funds on Child 2371 Marriage Regulations Is Not Coercive VI. WHY THE TAXING POWER IS INSUFFICIENT TO ADDRESS 2372 CHILD MARRIAGE CONCLUSION 2373 INTRODUCTION

Sherry Johnson was just ten years old when she was raped and impregnated by her conservative Apostolic church's twenty-year-old deacon. (1) After child welfare authorities began investigating her case, Sherry's family and church officials forced her to marry her rapist to avoid a "messy criminal case." (2) By the time Sherry turned eleven years old, not only had she been sexually abused, but her own family forced her to marry her abuser. (3) What is perhaps most shocking about this case, is that Sherry's story took place right here in the Unites States. (4) After a judge in Tampa, Florida, refused to marry Sherry to the adult man, Sherry's family took her to nearby Pinellas County where the judge issued a marriage license with full knowledge that Sherry was just eleven years old. (5)

Sherry's story is not an anomaly in the United States. The United Nations defines "child marriage" as marriage involving at least one party "under the age of eighteen." (6) Although child marriage is perceived as an issue only affecting developing countries, between 2000 and 2015, an alarming 200,000 children married in the United States. (7) Further, 87 percent of the children married were girls, and 86 percent of the young girls (8) married adult men. (9) According to a 2011 research report, it is estimated that "over 9.4 million U.S. women had married at age 16 or younger and that nearly 1.7 million had married at age 15 or younger." (10) Additionally, a 2016 Pew Research Center report found that "[a]bout 57,800 minors in the U.S. ages 15 to 17 were married as of 2014." (11)

These statistics are particularly alarming, given that early marriage often leads to young children experiencing devastating, lifelong consequences such as marital instability, (12) decreased likelihood of continuing formal education, (13) increased likelihood of future poverty, (14) and increased susceptibility to mental (15) and physical health issues. (16)

One might wonder how children in the United States are marrying at such alarming rates, despite statutory laws regulating marriage and early child marriage's well-documented negative consequences. Although almost every state mandates eighteen as the age of marital consent, (17) forty-eight states have statutory exceptions authorizing early child marriage. (18) Further, because state legislatures have the discretion to make child marriage laws, statutory laws vary significantly from state to state. (19)

This Note will discuss the variations in state child marriage laws and argue that such variations create loopholes that increase the vulnerability of children, especially young girls, to coercive and forced marriages. Further, this Note will argue that state statutes do not adequately address the issue of child marriage in the United States, and thus federal action is necessary. Specifically, Congress should use its spending power to condition 10 percent of federal education funding on states' enactment of uniform child marriage laws: eighteen as the minimum age of marriageability without exception.

Part I will discuss child marriage's history and evolution in the United States. Part II will examine current child marriage laws in the United States and discuss the variations in state child marriage laws. Part III will discuss child marriage's negative consequences, and its broader effects on society at large. Part IV will argue that state regulation is insufficient to prevent child marriage. Part V will discuss Congress's spending power under South Dakota v. Dole and argue that Congress should use its spending power to incentivize states to enact standardized child marriage regulations. Finally, Part VI will argue that the congressional taxing power would not effectively prevent child marriage, and that the spending power is a more effective tool to address this issue. In sum, this Note demonstrates that state child marriage laws have proven insufficient to protect vulnerable youth in the United States, and federal reform is necessary to ensure the protection of children and vitality of future generations.

  1. HISTORY OF CHILD MARRIAGE IN THE UNITED STATES

    Child marriage in the United States predates the American Revolution, and it has survived all the way to modern times despite significant transformation. (20) This Part provides a brief overview of child marriage laws's evolution in the United States. Next, this Part will discuss the child marriage laws that the Colonies adopted and how the laws developed and modernized over time.

    1. Child Marriage Under the English Common Law

      Child marriage is a practice that is deeply rooted in U.S. history, dating back to English common law. (21) English common law permitted some minors to marry, and the law divided children into three groups to determine the legality of marriage: (1) children under the age of seven; (2) children between seven and the "age of discretion"--fourteen for boys and twelve for girls; and (3) children who reached the age of discretion. (22) First, English common law considered children under the age of seven incapable of consenting to marriage, and it considered marriages before seven completely void. (23) Second, children between seven and the age of discretion could lawfully marry, but the marriage was "imperfect." (24) Although English common law considered imperfect marriages valid, either party could void the marriage at-will until both parties reached the age of discretion. (26) Finally, English common law considered marriages after the child reached the age of discretion presumptively valid. (26)

      Initially, marriage under English common law did not require parental consent; however, in 1753 Parliament enacted Lord Hardwicke's Act which required the minor's father's consent to legally marry; minors were all children under the age of twenty-one. (27) Hardwicke's Act "reinforced the centrality of marriage as the institution through which families controlled property and wealth." (28) Thus, Hardwicke's Act allowed families to use marriage as a method to enter into alliances that would produce future heirs to inherit family property. (29)

      Coverture was another important doctrine under English common law. Coverture held that a husband and wife became one person at marriage and thus the wife's legal existence consolidated into her husband's legal existence. (30) Therefore, anything a woman earned belonged to her husband: she could not enter a contract, she could not sue her husband, and she was obligated to serve her husband. (31) Further, a woman could not bring rape charges against her husband because English common law presumed ongoing sexual consent between husbands and wives. (32) In turn, the husband was obligated to provide financial support to his wife and children. (33)

    2. Child Marriage Laws and the American Colonies

      Colonial America adopted the English common law view of child marriage; however, Hardwicke's Act did not have a strong influence on American child marriage laws. (34) It was not until the colonies began enacting their own statutes to regulate child marriage that the parental consent requirement became prominent in United States marriage laws. (35)

      In the early 1600s, colonial legislatures began passing their own laws to govern marriage in the United States. (36) The Colonies' marriage codes often mirrored English common law, including parental consent requirements that prevented "clandestine" child marriages. (37) Plymouth Bay passed a statute in 1636 stating that "none be allowed to marry that are under the covert of parent but by their consent and approbation." (38) In 1650, Connecticut passed a similar statute that prohibited child marriage without a parent's or guardian's permission. (39) These statutes exemplify the colonial marriage laws's trend to focus on regulating child marriage in order to preserve the parent's right to control the child for economic reasons rather than regulating to preserve children's youth and promote their well-being. (40)

      Finally, all colonies adopted English common law's age of legal majority--twenty-one--as the age at which individuals could marry without parental consent; however, courts continued to uphold marriages for individuals who met the English common law age of presumptive consent--fourteen for boys and twelve for girls--because the Colonies did not "explicitly repudiate" the common law. (41)

    3. Child Marriage Laws and Early States

      After the American Revolution, many states modified their marriage laws, and the modifications varied based on region. (42) For example, northern states placed more emphasis on parental consent, (43) whereas southern states focused on the parent's...

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