Columns » John Brummett

Fixing the child bride snafu



Arkansas nabbed national publicity over the weekend. The news popped up on my Yahoo home page. The paper in Seattle put it on Page 8.

Toddlers can marry in Arkansas if parents permit — that was the story.

The bad jokes are mostly undeserved, of course. Three states — Colorado, West Virginia and Wyoming — don't have expressed minimum ages for marriage. They merely provide for voiding marriages after the fact.

We always had a floor. What got us in trouble was trying to raise it, by which we appear to have obliterated it.

This is not a cultural deficiency, but a technical snafu. It's a result of our mad legislative process, which is built for inefficiency. It combines the novice legislators of uncommonly restrictive term limits with constitutionally time-constrained sessions. It forces these novices to deal with thousands of proposed new laws within 60 to 90 days every other year.

Amid all that, who's going to catch an extraneous “not” in a simple, well-intended bill sent over by an association of state judges, who, you'd think, knew how to write a law? Who's going to notice the wholly unintended consequence of striking the old minimum ages for marriage and leaving the word “not” before the word “pregnant” in the new wording seeking to raise that minimum?

Nobody, that's who. Not the judges. Not any of the 135 legislators. Not drafters, typesetters or proofreaders on the legislators' staff. Not the final reviewers in the governor's office before the gubernatorial signature got affixed below the stamp saying “approved.” Certainly not the press.

Among the ironies is that the legislators to whom the judges brought the measure for sponsorship — Rep. Will Bond of Jacksonville and Sen. Jim Luker of Wynne — are lawyers who are among the most technically proficient, intellectually capable and altogether well-meaning in the General Assembly.

Stuff happens. Bond is nearly sick about it, mostly because he figures his colleagues trusted him on such matters, and that he let them down.

But it's not any lone individual's fault.

The state's judges thought it might be a problem that previous law said boys couldn't get married if under 17 and girls if under 16. The judges feared the lack of uniformity might pose constitutional vulnerability. Thinking they were acting responsibly, even wisely, they wished to pre-empt any problem.

So they drafted a bill intending to strike the business about 17 and 16 and replacing it with new wording saying no one could get married under 18 unless you were pregnant and obtained parental consent.

But by striking the old language removing any floor and inserting a new provision that inadvertently placed “not” before the word “pregnant,” the effect is that a child of any age who is not pregnant can get married with parental consent.

There are understandable concerns about arranged marriages, pedophiliacs and general creepiness.

We have three options.

One is to let the Code Revision Commission, which exists to technically correct new acts and merge them into the formal codification of laws, simply take out the word “not.” But some legislators think this would knowingly make a wholesale reversal of the bill's substance and effect, thereby pre-empting unconstitutionally the authority and responsibility of the General Assembly.

Another is to call a quickie special session and fix this. But special sessions are invitations for everyone with a real or perceived need to try to get on the agenda, probably to spend money. Gov. Mike Beebe would much prefer not to do that.

The third is to sit tight. We could trust that county clerks would notify the Human Services Department's child welfare people if children came in with parental consent to get marriage licenses. We could trust that the state would tie up the matter in court based on other child welfare laws until the flawed law could be formally corrected in the next legislative session in January 2009.

I'm torn, leaning slightly and tentatively to a combination of one and three, but aware that the two is the most effective.

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