The Forgotten Child Bride in the United States
By Rachel Emendorfer*
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.”  This statement by Justice Kennedy in Obergefell v. Hodges captures how cherished the concept of marriage is by many in the United States. While marriage can be an expression of love and devotion, it can also be used to wield control over another human being. This potential for abuse of control is especially concerning when in child marriage—a marriage where one of the parties is under eighteen years old. Child marriage can seem like a distant problem, but this false belief has, unfortunately, led many to have forgotten the child brides in the United States.
The U.S. reports shocking numbers of child marriages occurring each year, with almost 300,000 children being married between 2000 and 2018. Unchained At Last, a child marriage advocacy group, estimates that 86% of these children are girls and when girls married, they are marrying someone with an average spousal age difference of four years. State legislatures forgetting, or simply ignoring, the child brides in the United States, paired with a lack of judicial guidance has resulted in a legal framework that leaves many children unprotected from the harms of child marriage in the United States.
The Supreme Court has repeatedly held that marriage is a fundamental right, banning limits on interracial marriage in Loving v. Virginia and striking down laws prohibiting same-sex marriage in Obergefell v. Hodges. However, the Supreme Court has yet to deal directly with child marriage, leaving it to the states to implement child marriage laws. States have taken varying approaches to legislate child marriage. Currently, only six states outright ban child marriage by setting the minimum age to marry at eighteen. Twenty states have no minimum age for marriage, only requiring either a parental or judicial waiver.
Prior to 2018, children in Missouri were allowed to be married at fifteen years old, without any age limitations for whom they were being married to. During this time, Missouri was considered a “destination state” for child marriage, with people traveling from as far as Oregon to participate in a child marriage. In 2018, the Missouri legislature raised the minimum marrying age to sixteen and now bans people over the age of twenty-one from marrying anyone under eighteen. Another destination state for child marriage, North Carolina, passed legislation in 2021 raising the minimum age limit from fourteen to sixteen. The concept of “destination states” for performing child marriages are examples of what happens when there is no centralized legal framework guiding state’s legislation for child marriages.
The impact of these marriages stems far beyond the moral dilemma of imposing marriage on a minor who cannot legally consent. Early marriages have led to immense consequences for minors’ mental and physical health, educational attainment, and economic independence. Marrying at a younger age often means becoming sexually active at a younger age, and therefore implicates pregnancy before a person’s body is developmentally ready to endure pregnancy. This is especially concerning with the recent Supreme Court decision in Dobbs v. Jackson Women’s Health Org., where the Court overturned precedent and held that there is no constitutional right to abortion.
Another legislative problem common with child marriage is the ability to circumvent statutory rape cases by being married to the victim. Statutory rape, or sexual abuse of a minor, applies when a person knowingly engages in a sexual act with a person below the age of consent. States can place a defense within their statutory rape provisions by clarifying that sexual assault does not occur if the victim is the perpetrator’s spouse. One reason attributed to these laws is a cost-savings approach by the state. By allowing a marriage exception for statutory rape, many states can avoid not only the cost of prosecution, but also avoid the cost of holding the perpetrator in prison.
While the likely solution to end child marriage in the United States is for every state to enact legislation that sets the minimum marriage age at eighteen, it is still possible for federal legislators to push the issue. There is one bill pending in Congress that would require the Department of Health and Human Services to study and issue a report on the relationship between state minimum marriage age and the number of marriages involving a child under that age. While this bill would not create a federal ban on child marriage, it would draw attention to the prevalence of child marriages occuring in each state. This could potentially force state legislatures to enact legislation raising their minimum age for marriage.
The current state of child marriage laws in the United States, along with the decision in Dobbs, means young women across the country are facing major legal obstacles to having autonomy over their personal decisions. These problems cannot be solved by legislators assuming the issue of child marriage is not happening within their country. Both federal and state legislators need to understand the consequences of failing to eliminate child marriage and enact legislation that will protect the safety and independence of children in the United States.
 Obergefell v. Hodges, 576 U.S. 644, 681 (2015).
 Child Marriage in the United States, EQUALITY NOW (last visited Oct. 10, 2022), https://www.equalitynow.org/learn_more_child_marriage_us/#:~:text=Child%20marriage%20is%20currently%20legal,a%20parental%20or%20judicial%20waiver.
 United States’ Child Marriage Problem, UNCHAINED AT LAST, (last visited Nov. 15, 2022), https://www.unchainedatlast.org/united-states-child-marriage-problem-study-findings-april-2021/.
 Marie Johnson-Dahl, Sixteen Candles On My Wedding Cake: Implications of Banning Child Marriage in America, 2020 U. Ill L. Rev. 1045, 1050-51 (2020).
 Child Marriage in the United States, supra note 2.
 Julia Bennett, The Harsh Truth of Child Marriage in the US, Berkeley J. GENDER, L. & JUST. (Nov. 16, 2021), https://genderlawjustice.org/under-deconstruction/the-harsh-truth-of-child-marriage-in-the-us#:~:text=Meanwhile%2C%20Missouri%20is%20known%20as,to%20anyone%20of%20any%20age.
 North Carolina Is Child Bride Destination; Bill Could End It, U.S. NEWS (Aug. 17, 2021), https://www.usnews.com/news/politics/articles/2021-08-15/north-carolina-is-child-bride-destination-bill-could-end-it.
 Johnson-Dahl, supra note 4, at 1066-8.
 Id. at 1066.
 See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2284 (2022) (holding that the right to an abortion is not a constitutional right).
 Amber Plumlee, Don’t Put a Ring on It: Abolishing the Marital Defense to Statutory Rape, 41 WOMEN’S RIGHTS 95, 103 (2019).
 Id. at 100-01.
 Id. at 104; see Colo. Rev. Stat. § 18-3-402(d) (2020).
 Id. at 107.
 Bailey Wharton, Why Has the United States Not Banned Child Marriage?, U. Cincinnati L. R. (Jan. 10, 2022); see Congressional Research Service Summary of H.R. 1606, Congress.gov, https://www.congress.gov/bill/117th-congress/house-bill/1606 (last visited Nov. 16, 2022).
* Rachel Emendorfer, Staff Member of Journal of Law & Inequality Vol. 41 and J.D. Candidate, UMN Law School Class of 2024