Anyone paying attention to the current Supreme Court knows that, to quote Senator Diane Feinstein’s description of its most recent addition, “the dogma lives loudly within” a majority of Justices. They have manifested their theocratic nature in explicitly religious cases—endowing Catholics with the “free exercise” right to discriminate against same-sex couples seeking to foster children and requiring (I predict, based on arguments) that government-issued school vouchers be usable at religious schools, despite the state’s opposition. But the Court’s religiosity also emerges in nominally non-religion controversies, including Dobbs v. Jackson Women’s Health Organization, a case in which the Court, based on a majority’s statements at oral argument, is likely to rule that women lack a right against the government forcing them to remain pregnant against their will and thereby to involuntarily turn raw materials (what many religious people view as a fully entitled person) into babies. Ironically, those who blithely impose their Creator’s rules on secular others typically refuse to recognize that in pregnancy, women are the creators; they take a cell that in no morally meaningful way resembles a live baby and by degrees, turn that cell into a feeling, thinking, experiencing infant. Yet secular folk have long treated with respect the counterintuitive religious view that the fusion of sperm and egg essentially completes the process of reproduction.
Abortion, LGBTQI+ rights, and school vouchers are very much in the news. But a less public reflection of religious hegemony in this country is in the area of marriage. Until the 1990s there were still states that excluded marital rape from criminal coverage as the law throughout the country had just a few decades earlier. The law recognized marriage as an arrangement in which the man provided material support, and the woman was sexually available at the will of her husband. The Bible, which names countless transgressions—like cross-dressing, for example—treats rape as a crime against the victim’s father by reducing his daughter’s value, a crime for which the rapist pays by marrying his victim.
Perhaps the most disturbing reflection of religious influence in the law emerges in the near-universal legality of child marriage in the United States. According to Unchained At Last (UAL), an organization that fights to end child marriage, the following was true as of April 2021: forty-four states permitted child marriage, defined as marriage to a partner under the age of 18. Nine states, including Massachusetts, Michigan, and California, set no minimum marriage age, and some of what UAL estimates are the hundreds of thousands of American women and girls currently in what began (or continue) as child marriages were married at the age of ten.
Sasha K. Taylor gives a moving account of her own marriage in “For the sake of a visa, I was forced into marriage in Arizona—at age 15.” She mentions that after she moved in with her husband, she was no longer able to see her family, even though they lived only 15 minutes away. Isolating a partner from outside sources of potential support is practically a calling card for domestic abusers. The impact of partner abuse would likely be even more devastating for a child bride young enough to still be a freshman in high school. And as Taylor tells us, “Let there be no doubt about this: girls forced into marriage are raped.”
The shameful persistence of child marriage combines rape and forced pregnancy and birth. It is not a coincidence that these three misogynistic phenomena co-occur. One way in which child marriage happens is with a parent or parents deciding that there should be an arranged marriage between their daughter and some adult male. In Taylor’s case, the man needed a visa, and I suspect the parents might have received some sort of financial remuneration for supplying him with his marital green card. In other cases, parents view marriage as an essential part of fulfilling their religious commitments, and marrying a daughter off to the “right” family will bring benefits to the girl’s family’s reputation. The reasons to “marry off” a daughter often have nothing to do with promoting the daughter’s psychological or physical wellbeing.
Consider this fact: as of 2016, all states had laws setting an age of sexual consent. Such statutes mean that if a person has sex with someone under that age, the law treats the sex as rape. The reason for this treatment has to do with the likelihood that under a designated age, girls might say “yes” even though they are not ready to have sex or do not fully understand what is involved; they might, in other words, say yes but mean no, the opposite of the misogynistic and defamatory stereotype that holds that women routinely say no when they mean yes and then later charge rape. Consider now the reality that in many states, especially the nine that have no minimum age for child marriage, a girl’s father and mother can decide to authorize what would otherwise be the rape of their underage or even pre-pubescent child with the law’s blessing. What distinguishes child marriage from statutory rape is that the child bride will suffer not one sexual assault but many, with all of the foreseeable mental and physical health consequences.
How are we to interpret this authorization that parents can give for the rape of their daughters? Once again, religion comes to the rescue. If we look into the past (and not even the very distant past), the law in the United States considered girls and women to be highly valuable living property. Just to head off objections right here, I am not comparing coverture to slavery. Slavery went with a special brand of brutality, cruelty, and humiliation that exceeded the fate of free women even though free women were, in fact, not all that “free.”
Religion is a human institution, one that often outlives the expressed values of the time that initially gave rise to its rules. In the past, the law treated a girl as the property of her father. If she was his property, then he was entitled to choose her husband and to do so when he judged the time to be right, without interference from the state. Rape, whether of a child or an adult, was cognizable only as a species of property crime against the girl’s father or husband, not a violent outrage against the girl or woman.
In the religious narrative, the girl’s subjective mental, emotional, and physical experiences are completely irrelevant. The only actors who count are the two owners, the father and the rapist. The girl’s trauma after a rape and her continuing trauma after becoming the sexual property of the rapist have no place in the story. So what if she is 10? The parents probably know that they won’t do better than the family in question, and the man, who is 25 or 30 or 60 wants to marry and force sex on their 10-year-old now. It is child’s play to identify the role of religion in this practice; parent-arranged marriages, after all, remain a central part of religious life for many devout people to this day.
Religion gives an air of respectability to many cruel and reprehensible practices. Forced pregnancy and birth would be profound human rights violations but for the religious idea that cells are people too. Refusing to consider same-sex couples for foster parenting would be offensive and impermissible discrimination but for the religious idea that sex must be potentially procreative to be sanctified. And a marriage between a 10-year-old and an adult man would be human trafficking but for the religious veneer. It may be that only when Americans get over our love affair with “respecting everyone’s religion,” however coercive, violent, or misogynistic, that an actual respect for the bodily integrity, liberty, and privacy of women, LGBTQI+ people, and girls will become durable and no longer subject to state-sanctioned or court-sanctioned violation.