Twelve Year Old Girls Can Marry? James A. Davids J.D. Duke University School of Law President-Elect, Christian Legal Society Assistant Dean, Robertson School of Government, Regent University June 17, 2006

Last Thursday, the Colorado Court of Appeals ruled that a 35 year old escaped convict could marry a 15 year old girl.  In fact, the court went so far as to say that under Colorado law, 14 year old boys and 12 year old girls could marry either each other or others.  Rather than being aghast at this decision (I am, by the way, a professor at the School of Government named after Pat Robertson), I believe the court’s decision is a courageous act which helps preserve the rule of law and constitutional liberty in our country.  Before I am accused of being a libertine and fired, let me explain.

Like many other states, Colorado has adopted the Uniform Marriage Act, which seeks to strengthen and preserve the integrity of marriages.  It establishes procedures for the solemnization and registration of marriages, and states that the age of consent for marriage in Colorado is eighteen.  This Act further states: “Nothing in this section shall be deemed to repeal or render invalid any otherwise valid common law marriage between one man and one woman.”  Colorado, therefore, recognizes that there is a way to marry in Colorado other than through procedures and laws set by the legislature in the Uniform Marriage Act.  Nine states and the District of Columbia join Colorado in recognizing common law marriage.

Not surprisingly, when the original thirteen colonies revolted from England, they adopted for their courts the English common law.  The people generally understood their legal rights and obligations as English citizens, business and trade followed English law and custom, and lawyers and lawmakers in the colonies were, of course, trained in common law.  Moreover, the colonies rightly claimed the liberties found in common law.  No taxation without representation was not original to the American colonists; it was an English right.  Colorado followed this tradition by proclaiming that English common law is the law in Colorado, unless the legislature repeals it expressly or passes legislation inconsistent with it.

The court researched common law and found (thank goodness!) that children six and under were incapable of marrying.  At seven, apparently, children could marry under common law, although this marriage could be annulled until they became able to consummate the marriage, which the law presumed to be at the age of fourteen for boys and twelve for girls.  Since the Colorado legislature had not expressly stated the minimum age for common law marriage, and in fact had stated that the Uniform Marriage Act did not render invalid any common law marriages, the court concluded that the fifteen year old girl in question was considerably beyond the minimum age of consent for a common law marriage.

The Colorado court performed its task exactly as required.  It researched the law, determined that the legislature had never acted on the question addressed, found the appropriate provision in the common law, and applied that law to the facts of the case.  The court did not attempt to legislate from the bench.  It did not invalidate the marriage by declaring that the minimum age for common law marriages must be the same as under the Uniform Marriage Act.  Although the age of eighteen for all marriages in Colorado may be the final result of this saga, the court properly restrained itself from committing this legislative act.

A court’s refusal to assume authority placed in the domain of a sister branch of government not only honors the constitutional separation of powers principle, it also promotes domestic tranquility.  If a group promoting a social change loses a legislative battle, they can always bring back the proposal the following session (like Chicago Cubs fans, there is always hope in saying “wait until next year!”).  Although courts can also revisit subjects, often it is decades before they do so (the “separate but equal” principle, which did everything but promote equality between the races, lasted for over 50 years before the Supreme Court revisited the issue).

Imagine the civic turmoil that could have been prevented if the unelected U.S. Supreme Court had ruled that the issue of abortion was something for the elected legislature (the states or Congress) to decide.  Imagine the peace in our nation if the unelected Supreme Judicial Court of Massachusetts had determined that the question of homosexual marriage was the legislature’s prerogative to address and not its own.   Peace and constitutional liberty prevail when the judiciary respects and honors the authority of the people’s representatives to make laws binding upon all of us.