SALT LAKE CITY — During his 2015 visit to Kenya, former President Barack Obama denounced a practice that the State Department calls a human rights abuse that produces “devastating repercussions for a girl’s life.”
“There's no place in civilized society for the early or forced marriage of children. These traditions may date back centuries; they have no place in the 21st century,” Obama said in Nairobi on July 26, 2015.
To some advocates against underage marriage, he could have given the same admonition at home. In 48 states, it is legal for a minor to be married. Of those, 19 states have exceptions in the law that allow a minor of any age to be married. Currently, the average minimum age for marriage nationally is 16. While the practice is on the decline, between 2000-2015 more than 200,000 minors were married in the United States in unions that were either forced, arranged or between consenting partners, according to data compiled by the advocacy group Unchained at Last.
While there is no data showing if those marriages worked out, divorce rates of marriages involving a minor are as high as 80 percent, the female partner often drops out of school, rarely completes college and is up to three times more likely to be abused by her spouse, according to recent research on the fallout from underage marriage.
Despite those troubling figures, state lawmakers struggle to determine how young is too young to decide something as life-altering as marriage. During the past two years, lawmakers in 25 states, including Utah, considered bills pertaining to underage marriage. And a movement to ban marriage for people younger than 18, with no exceptions, succeeded only in Delaware, which in May became the first state to pass a total ban on marrying younger than 18, and New Jersey, which followed suit the following month, a year after the proposal was initially vetoed.
But this isn't a simple issue. Similar bills in 17 states either failed or were loaded with exceptions. Legislators, religious groups and individuals fought for exemptions that preserve a legal precedent that gives deference to parents and their children to make personal decisions like marriage.
“The great movement of the law has been to say that kids have more ability to make decisions not less,” said Robin Fretwell Wilson, the director of the family law and policy program at the University of Illinois College of Law.
Older, but still young
The recent legislative focus on adolescent marriage continues more than a century of efforts, primarily by women's advocates and religious groups, that have incrementally increased the minimum legal age to marry.
When the United States was founded, the states inherited much of the British law they were already operating under, including marriage laws.
“This remained the case for some states well into the 19th century and, in some cases, the 20th,” wrote Nicholas Syrett, chairman of the Women, Gender and Sexuality Studies Department at the University of Kansas, in his book "American Child Bride."
Syrett explained that age wasn't the primary marker for maturity in the first century of the country as it is today. In the colonial era, the concern was less of the age of the child, but whether it was acceptable for the parents to marry off their daughter so they could control who has access to her inherited wealth.
Syrett estimated that in antebellum America, around 42 percent of females in Kentucky were married under the age of 20. He cites demographics, religious practices and industrialization as reasons why teen marriage was more prevalent in the South, Midwest and West than in the Northeast.
That trend began to change in the late 19th and early 20th centuries as opposition against marrying young teens began to grow among feminists and women’s religious organizations, Syrett wrote.
“Many women’s movements have been concerned of the double standard of morality, this Victorian relic that sees women’s virginity as a moral virtue and unconcerned of the sexual purity of men of comparable age," said Ann Braude, director of the Women's Studies in Religion program at Harvard Divinity School.
Through the last century, most states have increased the legal age for marriage in response to changing social norms and pressure to protect vulnerable victims — primarily teenage girls. Yet, the nation is an inconsistent patchwork of statutes with varying minimum ages and exemptions to the law for parental consent, religious beliefs and other circumstances.
Still, to call underage marriage in the U.S. child marriage is misleading in comparison to what's allowed in other countries, Syrett said.
“It's fascinating that we’re having this conversation because (the minimum age to marry in most states) is far and away from what it used to be," he said. "One of the reasons we only think of child marriage (taking place) in other countries is because it is different here. What we’re really talking about is adolescent marriage.”
Fraidy Reiss sees those under 18 as children when it comes to a decision like marriage and has become a single-minded force to increasing the minimum age. She said she was forced into an arranged marriage within the New Jersey Orthodox Jewish community she was raised in.
After 13 years of what she described as an abusive marriage, she obtained a divorce at age 32, and with her two daughters began a new life that included advocating for protecting young girls married against their will.
Her advocacy role started with buying a small house for her new family of three just a few months after leaving her husband.
"It (buying the house) was the first time I thought, 'I made it out.' And I bet there are so many other girls feeling what I felt," she recalled.
With a small circle of friends, Reiss started the nonprofit advocacy group Unchained at Last in 2011. While Reiss was 19 when she was married, most of the girls she helped get out of forced and underage marriages have been much younger.
Reiss set out with a goal of helping five girls in her first year. She surpassed that goal six times over.
Now, her advocacy work is full time as her team also helps craft legislation and lobby state lawmakers to set the legal age for marriage at 18 with no exceptions.
It's proving to be a difficult task.
“I thought they (the legislators) would be so shocked and horrified, but once they found out about the laws, they did not want to end it,” she said of her experience so far.
The exception has been Delaware, where bill sponsor Rep. Kimberly Williams, D-Newport, credited its passage to lobbying from Unchained at Last and an open, bipartisan debate on the Senate floor.
"Even though we are condensed and are more accessible, we still had to convince them (opposing legislators) to support the bill," she said. "It was all the work we did."
For Reiss, her home state proved to be more difficult than anticipated once lawmakers started digging into the details. Reiss actually began lobbying her New Jersey lawmakers before she took her cause to Delaware.
While the bill similar to Delaware's passed the New Jersey Legislature in 2017, it was conditionally vetoed by then-Gov. Chris Christie, who cited religious freedom concerns.
It “does not comport with the sensibilities and, in some cases, the religious customs, of the people of this state,” Christie wrote in the veto message.
During deliberations of the second attempt, Assemblyman Gary Schaer, D-Passiac, said that constituents from his own Jewish community had approached him with concerns about how the bill would restrict their religious practices, according to New Jersey Advanced Media. He abstained from voting on the bill.
Schaer has been unavailable for comment after numerous requests for an interview.
Rabbi Shmuley Boteach, an Orthodox Jewish Rabbi in New Jersey, was surprised to hear Schaer's comments.
"I can't imagine one rabbi that would endorse" underage marriage, he said.
Most mainstream religions don't advocate for child marriage, even if underlying teachings on marriage aren't explicitly against the practice. But teachings and doctrine can be manipulated by fringe or nonmainstream religious groups to support marrying off minors in the religious community, experts said.
Wilson, from the University of Illinois College of Law, is also skeptical of claims that increasing the age of marriage would violate legal protections for religious groups in New Jersey.
“It’s interesting he (Schaer) raises the issue of religious freedom,” she said. Wilson explained that there have been no recent or noteworthy cases indicating that any portion of the law would be unfair for religious people in New Jersey, including marriage laws.
While religious freedom was cited as an obstacle to banning child marriage in New Jersey in 2017, how to address teen pregnancy appears an issue in other states.
Florida is among eight states and U.S. territories where marriage laws allow for underage marriage in the case of pregnancy or “special circumstances.” In Arkansas, New Mexico and Oklahoma, a child of any age can be married when she is pregnant.
But experts say the argument that marriage should be a solution to a teen pregnancy doesn't stand up to research.
“We have a lot of faith in the institution of marriage to solve a lot of problems,” Syrett said. But, "there is no evidence that marriage is going to solve the problem of teen pregnancy. Nor is it that girls who can’t get married are more likely to terminate their pregnancy.”
Instead, the evidence points to problems, particularly for the young mothers.
Girls who marry as minors are 50 percent more likely to drop out of high school than their unmarried counterparts, and four times less likely to complete college, according to Vivian Hamilton, a specialist and professor of family and adolescent law at the College of William & Mary, whose study on underage marriage is highly cited by scholars and advocates.
Women who marry as minors are more likely to earn low wages, and Hamilton also found that such marriages end in divorce 70 to 80 percent of the time. Women who are married before 18 are also three times more likely to have been beaten by their spouses, according to the World Policy Analysis Center.
“Adolescent marriages tend to take place in places where people have lower socioeconomic status and are already poorer and tend to be relatively invisible," Hamilton said. "When you combine socioeconomic status, poverty and religious beliefs that would embrace marriage over nonmarital childbearing, people don’t really see that there are other alternatives for them.”
Sara Tasneem said she grew up in such a community in California. She was a 98-pound 15-year-old when she married a man 13 years older, whom she had met the day they were married in a spiritual ceremony.
Her father arranged the marriage through their religious community. Tasneem was six months pregnant before she stood before a judge in Reno, Nevada, to marry legally. Her parents were divorced and her mother, who was living in another state, had no knowledge of the marriage.
“They were putting makeup on me that I wasn’t allowed to wear normally,” she said. “I knew what was happening, I didn’t think it would happen to me.”
To protect the privacy of her family, Tasneem does not disclose her last name. Tasneem is her middle name.
Tasneem, now 37, says her “insular, rural … and conservative community” frequently practiced the marriage of children that used both gender roles and religious teachings to justify it.
While she disagrees with her family's faith, she declined to identify the church because she doesn't want to disparage any of those involved as their views about gender and marriage are held by other religions.
'Age is no excuse'
Tasneem works with Unchained at Last, helping young girls and telling their stories to lawmakers debating the issue of underage marriage. Reiss said the most common obstacle she has run into in setting the minimum marriage age at 18, is lawmakers wanting to allow marriage for 16- and 17-year-olds.
It's not known how many of these unions fall under the “Romeo and Juliet” theory of a foolish young couple in love. The marriage data analyzed by Unchained at Last shows 77 percent of underage marriages were young girls wedded to males ages 18 or older.
"Many of the adult spouses were significantly older, but probably more of them had a smaller age difference," Reiss said. "It's easy to see how a child marriage with a big age difference probably was coerced, but a small age difference in no way means the marriage was consensual."
That data and the argument that marriage should be able to accommodate teen pregnancies raises the question of whether the "special circumstances" exemption can be used to cover up a crime.
In most states, having sex with a minor is considered statutory rape. However, in 20 states, it's not a crime when that minor is married.
Gilbert Schaffnit, a criminal defense lawyer in Gainesville, Florida, said using marriage to cover up statutory rape would be rare if not impossible today.
"Prosecutors don't put up with that, and ignorance of age is no excuse," he said.
Schaffnit disagrees with an all-out ban on child marriage.
"A 16-year-old is far more sophisticated than they were years ago. Sixteen is the old 18," he said, noting that 18 is an "artificially high age to require people to wait."
If "they're legally married and understand consent and the responsibilities of sexual activity," there is no problem from a legal standpoint, he said.
Despite research showing the myriad of problems associated with underage marriage, the prevailing thinking among lawmakers stewing over bumping the minimum age to 18 is that it is a personal decision for families to address.
“Anyone under 18 is way too young and is foolish to get married. However, who am I to say that some 16- or 17-year-old should not get married? We live in a republic that defends your choice to be dumb,” said Utah state Rep. Walt Brooks, R-St. George.
He sponsored a bill, HB343, that became law in March, that classifies “subjecting” or “threatening” a child with “a legal or cultural marriage” as sexual abuse.
Brooks said that there was a "kink in the law" that required those escaping a forced child marriage to be returned to their parent by the police. This new law "requires a court or the Division of Child and Family Services to take into consideration a child's wishes for placement."
But Brooks, who said survivors of polygamist marriages inspired the bill, said the state can now punish those who use state marriage laws to victimize others.
Wilson said a blanket ban for marrying under 18 is unrealistic given legal precedents allowing adolescents and their parents to go the other direction.
“A blanket prohibition is so different from what we’ve had, you are going to get these kinds of religious and parental rights claims,” she said.
In 1981, the New York Supreme Court upheld the state's law that said parental consent is necessary to allow a minor to be married, citing that the "constitutional rights of children cannot be equated with those of adults," and that adults should aid them in their decision-making. New York's minimum marriage age is 17.
Instead of boosting the minimum marriage age to 18, the public should be focusing on how to prevent forced or underage marriage, Wilson said.
“We should be worried about arranged child marriage and banning arranged child marriage by interviewing them to make sure they weren’t coerced,” she said.
But Reiss has no plans to modify her mission of an all-out ban against marriage under 18. “Any loophole in the law, it’s just going to endanger children,” she contends.
Her argument eventually won the day in New Jersey.
With the help of Unchained at Last, state Sen. Nellie Pou, D-Patterson, who focuses on women's issues and was contacted by Unchained at Last to sponsor the bill, reintroduced the formerly failed bill in January. After months of deliberation, and the stall by Assemblyman Schaer, the bill passed unanimously.
Gov. Phil Murphy, a Democrat, signed S427 ending underage marriage in the state on June 22.
“It was such an emotional experience,” Reiss said. “It was a culmination of all the hard work for the team and for me personally. When I first set out to do this work, my first attempt was New Jersey.
“It was there that I learned it’s not going to be the simple process.”
Correction: An early version stated 18 states have exceptions in the law that allow a minor of any age to be married. It is 19 states that have such exceptions.