Note: The case discussed here is an agenda item for Colorado's legislative special session that began today. By Dave Crater firstname.lastname@example.org
The recent bizarre case in Colorado of a 38-year-old man with a criminal record, his 15-year-old girlfriend, and their common-law marriage has made national and international news. A Colorado Appeals Court panel, in the absence of any state statute to the contrary, unanimously upheld the marriage as consistent with historic Anglo-American common law.
Indeed, though the court did not mention it, the minimum common-law marital ages of 14 for men and 12 for women appear to date at least to the great 6th-century expositor of Roman law, the Emperor Justinian. So this means the law applied by the Colorado Court of Appeals has not only prevailed in Colorado since statehood and in the United States since the Revolution; it has been the law in the Anglo-American tradition for over 1400 years.
Yet the court’s decision has Colorado liberals licking their chops at such a serendipitous discovery of further support for one of their favorite myths: that marriage is dangerous for women. At the same time, many Colorado conservatives, knowing marriage is the safest social arrangement for any woman outside of a home with her two married, biological parents, but also very much concerned with the modern epidemic of premature sexual activity, are having trouble connecting the dots.
The matter is fairly straightforward. Teens were allowed to marry young in prior centuries because earlier generations understood how safe and productive marriage is for both sexes, because they could safely assume parental supervision of minor children in most cases and a social structure that would support the young couple in their marital life, and because, above these minimum legal ages, the state deferred to parental judgment on when any particular youth was ready to be married.
William Shakespeare, for example, sets Juliet’s age at just under 14 in Romeo and Juliet, and at the opening of the play older suitors are already approaching Juliet’s father to request her hand in marriage. Juliet’s mother is said to have been only 14 herself when she gave birth to Juliet. Sick? I have never heard anyone say so, even if one regards this as less than the ideal arrangement. In response to the requests for her hand, Juliet’s father does what any good father would do and declines until she is at least the mature age of 16.
Nor is a wide age difference between partners necessarily a sign of evil. The great British anti-slavery crusader and MP, William Wilberforce, married a 20-year-old when he was 37. The marriage was long, peaceful, and fruitful.
This was the near-universal approach to marriage in the English and American traditions until the modern decline in respect for marriage and the corresponding increase of extra-marital sexual promiscuity with all its attendant dangers. Over time, this unhealthy trend led jurisdictions in the Anglo-American sphere to establish new “ages of consent” below which it was illegal for an older person to engage in extra-marital sexual intercourse with a minor. This age of consent differed from the common-law age of consent for marriage, and, indeed, such “statutory rape” statutes very often made explicit exceptions to allow for cases where the two participants were married.
Colorado is such a jurisdiction. In Colorado, a minor over 16 may legally engage in consensual sexual intercourse with anyone. A minor of 15 or 16 may only engage in consensual intercourse with someone less than 10 years older, unless that person is her spouse. Anyone more than 10 years older than his 15- or 16-year-old non-married partner engages in statutory rape. A minor less than 15 years old may only engage in consensual intercourse with someone 4 years or less her senior, unless that person is her spouse. Any other partner, again, is guilty of statutory rape. The spousal exceptions are explicit in Colorado statute, and recognize the possibility of legal marriage for minors under 15.
We should understand clearly that these modern “age of consent” laws are a creature of modern sexual liberation, designed to provide some minimum legal protection to minors from sexual predators in an age of loose and incoherent sexual ethics. In days when marriages and families lasted, and when sexual activity outside marriage was a rare occurrence and even illegal in traditional Anglo-American jurisdictions, such laws were not needed. They are very much needed now.
Yet the trend among American liberals, like those in Colorado who are bewailing the recent marriage ruling, has been not only toward reducing the age of consent for sex, but toward making that age relevant to homosexual as well as heterosexual sex. Since homosexual sex even among adults was illegal in all 50 American states until the second half of the 20th century, the age of consent for homosexual sex was effectively infinite. Reducing that age to 17 or 18, as most American jurisdictions have now done, has been an enterprise carried out by people of the same liberal persuasion as those now demanding that it be more difficult for a teen to marry in Colorado. These same people have also advocated public school sexual education for teens of younger and younger ages, as well as unfettered access to abortion services for teens who become pregnant.
Easier teen sex, unobstructed teen access to abortion, but more difficult teen marriage: what is wrong with this picture?
What's wrong is that policy is being shaped not really by concern for teens, but by a moral and political ideology that is hostile to marriage and to the moral wisdom of our ancestors.
Lowering the age of consent for sex, while raising the age of consent for marriage, is moving in precisely the wrong direction. The extreme case is China, where the age of consent for sex is 14, while the age of consent for marriage is 20 for females and 22 for males. This is the exact reverse of the great legal tradition of the English and American common law, which allowed marriage young, frowned upon extra-marital sexual activity at any age, and went so far as to make homosexual sex a grave offense. We are mystified by the Colorado Appeals Court ruling because we have ceased to understand this ancient wisdom about sex, marriage, family, and the moral foundations of our received legal tradition.
We should be far more worried about this moral and legal deficit than we are about a troubled 15-year-old teen who enters into a common-law marriage with an older man – with her mother’s consent. This particular Colorado teen was already a Dependency & Neglect case in the state welfare system; marriage even to an older man with a criminal record is not likely to dim her prospects for future happiness and stability.
In fact, if she and the man are serious about making the marriage last, it may be her only chance at avoiding the dim future that awaits most teenage girls who by age 15 have become wards of the state. Even if the marriage does not last, she will be no worse off than if she remained a ward of the state and engaged in extra-marital sex with that man outside of any moral, social, or legal commitment.
The General Assembly of Colorado should think twice before it denies that same potential escape and legitimacy to future young Colorado girls, and further deconstructs the legal wisdom that made the English common law the greatest legal system devised by humankind and the foundation of the political and legal rights all Americans enjoy.