Challenges and Continuities in Marriage Law

Historians of the United States long ago dispensed with the notion that marriage is merely a private expression of love and devotion between two people. Works by Michael Grossberg, Nancy F. Cott, Hendrik Hartog, and Peggy Pascoe, among many others, have demonstrated unequivocally that marriage has always been an institution of public governance that confers legal entitlements and enforces social norms.¹ Marriage has operated as a regulatory regime that authorizes some kinds of pairings while it invalidates others, defining and reproducing hierarchies of gender, race, class, and sexual orientation. Three very different and engaging new books about marriage and the law in the United States affirm this view, even as they extend and complicate our understanding of the institution.

Nicholas L. Syrett's fascinating and impressively researched book, American Child Bride, examines the surprising persistence of child marriage—or, more particularly, man-girl marriage—from the colonial era to the present. As Syrett acknowledges, the phenomenon of grown men marrying teenaged or younger girls has always been relatively uncommon, although rates rose more dramatically in the post-World War II era. It was only in the early twentieth century, however, that such unions began to be viewed as "sexually suspect" (4). Syrett's work demonstrates that law and public opinion have long sanctioned an age gap in the marriages of younger females and older males because this imbalance has comported with the gendered asymmetry of spousal roles. Moreover, parents and courts have often enforced child marriages in order to sanction illicit sex and legitimize offspring. At the same time, Syrett is attentive to the agency of girls and teens who desired to contract such marriages in order to attain the legal prerogatives of adulthood. As he charts Americans' growing discomfort with child marriage, Syrett shows us that judges' and reformers' normative belief that marriage was foundational to a moral society eclipsed their efforts to protect girls from predatory men.

The book begins in early America, when the common law age of consent for marriage was twelve for girls and fourteen for boys. Syrett contends that man-girl marriages were unremarkable in this era because Americans were not conscious of childhood as a distinct phase of life; and because, in legal terms, the patriarchal model of the household placed wives and daughters in similarly dependent positions. Especially in the South, Midwest, and West, child marriages were comparatively more common among diverse groups. Before the 1860s, when states passed laws regulating child marriage, Syrett argues, they generally established parental authority over when children could marry or controlled the inheritance of property. However, young brides were not always merely pawns in this legal schema. Girls who wanted to emancipate themselves from an undesirable guardian or abusive home could circumvent age-of-consent laws in order to marry—a fairly simple task in eras before the documentation of birth dates. Judges were loath to invalidate these unions, especially when they had been consummated; parents had little recourse beyond unreliable damage suits for loss of the daughter's services, or against third parties who had facilitated the marriage.

Syrett locates the first sustained critiques against child marriage among mid-nineteenth-century women's rights advocates, who worried that mangirl marriages ended in unhappiness and divorce, in part because early marriage robbed such wives of their girlhood. As he observes, however, the notion of "girlhood" as a protected life stage was a relatively new concept that pertained only to the middle class. Discomfort with child marriage grew through the latter half of the nineteenth century, and state legislatures generally made it more...