St. Mary's Law Journal


Rosanne Piatt


In the 79th Regular Legislative Session, Texas lawmakers amended and added numerous provisions to both the Texas Family Code and Texas Penal Code relating to the status of marriage. One change was the inclusion in the Family Code of a section voiding a marriage if either party is younger than sixteen years of age. Additionally, legislators included criminal penalties to other laws relating to marriage. Specifically, parents are prohibited from giving consent to the marriages of parties under sixteen, but parents also face third-degree felony charges if they give consent. The legislature voided certain underage marriages in Texas due to reports of a polygamist cult in Texas, with parents consenting to marriage of pre-sixteen-year-old children. These changes to the marital laws were done to prevent cult members from perverting Texas marriage laws. Yet, were those laws compatible with Texas’ public policy favoring marriage, and the constitutionally protected right of young Texans and their parents? The Texas legislature voided the ability of Texans under the age of sixteen to marry to promote the state interest in strengthening purportedly weak Texas laws against polygamy. The 2005 Family Code amendments not only interfere with the child’s ability to enter into a marital relationship but also with the child’s parents’ decision to allow such a relationship. Moreover, the amendments are not even rationally related to the state’s interest in preventing child polygamy and do nothing to prevent the practice. Thus, making the amendments under inclusive. Furthermore, the amendments sweep too broadly and adversely affect the populace at large. While preventing polygamy is a valid state interest, that interest is not accomplished by voiding a fifteen-year-old’s marriage and criminalizing a minor’s parents for consenting.


St. Mary's University School of Law