The Volokh Conspiracy
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Old Enough to Have Sex, But Not to Marry
An interesting illustration of changed mores.
Throughout much of American history, statutory rape laws had exceptions for married couples, and minors were allowed to marry with parental consent (though many states set a threshold age, albeit below 18, even for that). There was also a provision allowing minors to marry when the girl was pregnant.
The New Jersey Legislature, however, just passed a bill banning legal marriages involving under-18-year-olds; the vote was 30-5 in the Senate and 59-0 in the Assembly. (As I read the bill, it does not forbid religious marriage ceremonies, assuming the parties don't get a legal marriage license.) The NorthJersey.com (Nicholas Pugliese) reports that it's not clear whether Gov. Phil Murphy will sign the bill; Gov. Chris Christie vetoed it last time the bill was passed, writing,
This bill would establish an absolute ban on the issuance of marriage and civil union licenses ("marriage licenses") for people under age 18. New Jersey law currently permits the issuance of these licenses to 16 and 17 year-olds with parental consent and to persons below age 16 with both parental consent and judicial approval.
I agree that protecting the well-being, dignity, and freedom of minors is vital, but the severe bar this bill creates is not necessary to address the concerns voiced by the bill's proponents and does not comport with the sensibilities and, in some cases, the religious customs, of the people of this State.
All 50 states have established minimum ages for the issuance of marriage licenses and all 50 states have statutory exceptions. New Jersey should not depart from that norm. However, to ensure that the well-being of minors seeking to get married in our State is secured, I am recommending that this bill be amended so that a marriage license no longer be issued for a person under the age of 16.
I also would require judicial approval for the issuance of a marriage license to persons who are age 16 and 17. Judges of the Superior Court have long been charged with reviewing marriage license applications for minors under the age of 16. I have confidence that the same ethical, moral, and common sense values will be used in considering applications for marriage licenses for minors age 16 and 17.
An exclusion without exceptions would violate the cultures and traditions of some communities in New Jersey based on religious traditions. Judicial oversight would permit consideration of these factors in the 16 and 17 year old timeframe.
Finally, it is disingenuous to hold that a 16 year old may never consent to marriage, although New Jersey law permits the very same 16 year old to consent to sex or obtain an abortion without so much as parental knowledge, let alone consent. That inconsistency in logic undercuts the alleged logic of an outright ban.
Last month, Delaware likewise banned legal marriage of under-18-year-olds.
This shouldn't be surprising: It may well be that, in today's society, marriage (which will generally involve sex) when you're too young to understand the risks is more dangerous than unmarried sex when you're too young to understand the risks. My guess is that, for most of us, if our 17-year-old sons or daughters told us they wanted to get married, we'd generally be more aghast (even if our consent was needed for the marriage) than if they told us they were starting to have sex. Moreover, shifting from the policy arguments to the political reality, in many states cultures in which 17-year-olds get married are more alien to most voters (and most legislators) than cultures in which 17-year-olds have sex. Still, it struck me as worth noting.
I should also say that I don't see much inconsistency in having different ages for marriage and for abortion. "If you want to get married, fine, but wait two years" may be a reasonable position for the law to take; whatever one might say about abortion rights or about parental consent laws, "wait two years to get that abortion" is not, biologically speaking, an option.
Nor do I see a strong religious freedom argument here, since the law, as I read it, only controls whether the state recognizes a marriage—it doesn't preclude religious marriage ceremonies. It does in effect make it impossible for under-16-year-olds to have sex with the people they were married to in a religious ceremony, since the ceremony wouldn't have legal effect and thus wouldn't trigger the spousal exception to statutory rape law. But I think the government can rightly protect under-16-year-olds against the consequences of sex and of marriage in this situation, notwithstanding anyone's religious objections.
The key question, I think, is whether this sort of law is really in the interest of the pretty narrow group of minors who are actually likely to marry at 16 or 17. (There may be a separate question as to under-16-year-olds, but this law extends to 16- and 17-year-olds as well.) Would they be better off in a legally recognized marriage, or (what I expect is the alternative) in a purely religiously recognized marriage in which they are having sex and likely having children? I have no really informed opinion on this subject, but I'd love to hear what our readers think.
Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.
