Would a Proposed Tennessee Law ‘Legalize Child Marriage’?

In the spring of 2022, opponents of a bill introduced by Republicans in the Tennessee Legislature claimed that it would “legalize child marriage” in the state, or at the very least, remove age restrictions for marriage. 

Those descriptions were largely accurate, though in some cases critics misrepresented the legislation as having the aim of legalizing child marriage, rather than that being a likely inadvertent consequence. Our rating therefore on this claim is “Mostly True.”

On March 30, one widely shared tweet read: “The party that is sponsoring a bill in TN to legalize child marriage wants you to believe it’s the LGTBQ community that is a danger to your children.”

Several other news outlets and commentators similarly described the legislation as a bill “to legalize child marriage” or “to allow child marriage.”

Nashville ABC affiliate WKRN, meanwhile, published an article with the headline “‘A get out of jail free card’: GOP bill would eliminate age requirements for marriages in Tennessee,” and a similar report was published by the progressive website Daily Kos. 

What Does the Law Currently Say About Marriage?

As of April 5, 2022, marriage in Tennessee is regulated by Title 36, Chapter 3 of the Tennessee Code, which sets out a variety of rules and restrictions on marriage licenses in the state, including prohibitions on incestuous marriage, forced marriage, marriage between people who appear drunk at the time, and so on, as well as setting out the administrative procedures for obtaining and producing a marriage license. 

Sections 105 and 106 set out minimum age restrictions for anyone applying for a marriage license, as follows:

• No one aged under 17 years can marry, in any circumstances
• Anyone aged 17 years (but younger than 18) can only marry if:
  • They have parental/guardian consent, and;
  • The person they marry is not four years or more older than them.

Section 113 explicitly repudiates same-sex marriage, stating for example: “The legal union in matrimony of only one man and one woman shall be the only recognized marriage in this state.” That language was introduced in 1996, when Tennessee lawmakers banned same-sex marriage. In 2006, voters in the state overwhelmingly supported a constitutional amendment that contained similar language. 

However, the U.S. Supreme Court’s landmark 2015 ruling in Obergefell v Hodges triggered a federal district court in Tennessee to declare that both these pieces of law — Section 113 and Article XI, Section 18 of the state’s constitution — were “invalid under the Fourteenth Amendment to the United States Constitution to the extent that they exclude same-sex couples from recognition of their civil marriage on the same terms and conditions as opposite-sex couples.”

That district court ruling also banned state and county officials from enforcing the provisions of Section 113 and Article XI.18 of the constitution, effectively rendering them void and overturning Tennessee’s ban on same-sex marriage.

What Does the Tennessee Marriage Bill Say?

The “Marital Contract at Common Law Recording Act” was introduced in the Tennessee House of Representatives in January as House Bill (HB) 0233, by Rep. Tom Leatherwood, R-Arlington, and in the Tennessee Senate in February, as Senate Bill (SB) 0562, by Sen. Janice Bowling, R-Tullahoma. 

Its supporters and sponsors have argued that it creates a second path to marriage that consciously eschews the marriage license model in place in Tennessee (now rendered inclusive by the intervention of federal courts), and enshrines in state law the concept of “common law” marriage. 

In a common law marriage, a couple is not required to obtain permission from the state, in advance, in order to marry, by applying for a marriage license, and conforming with the various administrative requirements for holding a valid, properly solemnized ceremony, and so on. Rather, the couple becomes married by virtue of having lived together in a monogamous relationship for a substantial period of time. They are married in fact and through mutual commitment, if not by law. 

That is in keeping with the broader principles of this understanding of common law, whereby individuals have rights and freedoms whose validity and existence pre-exist constitutional law and statutes. However, it’s rare for modern legal systems to accept the validity of concepts such as common law marriage, or to integrate them into their statutes. 

What promoters of the Tennessee bill are seeking to do is set up a mechanism to give legal, statutory recognition to a model of common law marriages that would explicitly exclude same-sex relationships, and also to repudiate the existing marriage license model explicitly because it does not discriminate between same-sex and opposite-sex marriages.

In its initial form, the bill contained the following main components:

• Deleted Title 36, Chapter 3, Sections 101-112 of the Tennessee Code — the sections which set out the marriage licensing procedures and requirements, including the minimum age requirements.
• Deleted Title 36, Chapter 3, Sections 301-308, which regulated marriage ceremonies and marriage solemnizers.
• Required the state attorney general to defend county clerks sued over their legal duties in relation to marriage licenses.

On March 22, the Senate version of the bill, SB 0562, was recommended for passage by the Senate Judiciary Committee, with the insertion of a sweeping and substantial amendment that added: eight pages of preamble; a lengthy explanation of the constitutional, legal, and philosophical arguments underpinning the legislation; and the following main components:

• Added a new section of Title 36, Chapter 3, which would create a new “record of marital contract at common law” as an alternative to the existing marriage license and marriage certificate
  • • Restricted to only “one man and one woman”
    • Requires county clerks to create a record of an existing common law marriage, which must be filed with the office of vital records
    • Husband and wife must sign the record of marital contract, including affirmations that: they accept each other as such; their marriage is not incestuous; they are not drunk or under duress; they are not currently married to someone else, and so on; and that they understand making a false statement is punishable as perjury.

As of April 5, the bill was scheduled for further debate in the Tennessee state Senate and House of Representatives. 

Does the Bill Legalize Child Marriage?

The initial version of the bill deleted the sections of Tennessee law that established and described the marriage licensing system in the state, including the parts that established minimum age restrictions. Despite that fact, House sponsor Leatherwood erroneously declared, “This bill changes nothing in the current law regarding marriage.” That was wildly false when he said it back on March 9, at which time the draft of the legislation effectively evaporated the entire marriage licensing system in Tennessee.  

However, the amended version from March 22 did not destroy the marriage license, but rather added a second way for the state to recognize a marriage, and a second way for a couple to have their marriage formally and officially recorded. 

The existing marriage license would retain its age restrictions, so it would remain true that nobody aged under 17 years could be legally permitted by the state to marry. However, assuming the “record of marital contract at common law” was created and was legally and constitutionally robust, operated as planned, and created a legal recognition, by the state of Tennessee, of common law marriages, then it does appear to allow for marriages involving parties aged under 17 years.

Minimum age restrictions are conspicuously absent from the text of the amended bill. Readers can verify this for themselves by reviewing that document. The bill would require the husband and wife to state their dates of birth on the contract, but does not specify any restrictions or obligations on the basis of age. 

This is even more noteworthy in light of the fact that the legislation does contain other restrictions. For example, the husband and wife must affirm, under penalty of perjury, that they are not family relatives, not drunk, not acting under duress, and not already married. Yet there is no requirement for them to affirm that neither of them is aged under 18 or 17 or even 16 years. 

In order for the county clerk to file a record of the common law marriage, under the legislation the husband and wife must present a valid state-issued ID. However, the clerk is not required to visually inspect those IDs to ensure the date of birth of each participant is earlier than a certain date 17 years ago, for instance — a basic check that happens countless times each day in beer and liquor stores across Tennessee. 

In fact, the absence of an age restriction is even more glaring when one contemplates the fact that some of the text of the bill was clearly borrowed from the existing marriage license restrictions in Tennessee law. For example, here’s how HB 0233/SB 0562 forbids incestuous common law marriages:

And here’s how the existing marriage license statute expresses the same ban:

Clearly, the drafters of the 2022 bill were familiar with the ways in which existing Tennessee law regulates marriage, and replicated some of those rules and even the wording used to outline them. For whatever reason, the minimum age restrictions were not included in that transferral. 

Currently, there is only one way in which the state of Tennessee recognizes marriages — through the marriage licensing system established in 36-3-101 through 36-3-112. That legislation explicitly prohibits marriage for anyone aged under 17 years old. 

The bill currently before the General Assembly would create a new, second way in which the state recognizes marriages. That legislation would not prohibit marriage for those aged under 17 years old, and indeed does not establish any minimum age restrictions at all. Therefore, the claim that the 2022 legislation would “legalize child marriage” is accurate. 

However, claims that HB 0233/SB 0526 is “a bill to legalize child marriage” or “to allow child marriage” were wide of the mark. We could no find no evidence whatsoever that the age-restrictions loophole was a feature, rather than a bug, in the legislation. When asked on March 23 whether his bill contains a minimum age limit, Leatherwood said, “No, there is not an explicit age limit,” but speculated that the common law marriage contract would be implemented in a way that excluded children. He said:

This bill — as the name of it implies — it is a contract, and I believe that this would not allow minors, children under the age of 18 who haven’t even reached the age of consent — I don’t think the courts would uphold, with this bill, that they could enter into a marital contract here. So my thought, to answer your question [about a minimum age], is eighteen.

The factual premise of Leatherwood’s point is questionable. Children aged under 18 can and do regularly enter into contracts, even though the law surrounding those is less clearcut than contract law involving adults. However, it’s clear based on this discussion that Leatherwood, the primary sponsor of HB 0233, does not intend for his bill to “legalize child marriage.” Why the text of his bill does not include the relatively straightforward wording required to ensure that the legislation does not allow child marriage is not clear. 

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