October 12, 2007

Not pregnant under-age southern girl seeks lawyer with view to marriage

The following AP story is getting lots of press:

Ark. Judge Upholds Marriage Law Error
By ANDREW DeMILLO – 1 day ago

LITTLE ROCK (AP) — An error in a new law that allows Arkansans of any age — even toddlers — to marry with parental consent must be fixed by lawmakers, not an independent commission authorized to correct typos, a judge ruled Wednesday.

The law, which took effect July 31, was intended to establish 18 as the minimum age to marry while also allowing pregnant minors to marry with parental consent. An extraneous "not" in the bill, however, allows anyone who is not pregnant to marry at any age with if the parents allow it.

You can tell how passionately the AP cares about language issues by the fact that the negation bit is right up there in the second paragraph. And CNN, who care even more about sloppy language, run this same story (without further editing, at a first glance) as Misplaced 'not' in Arkansas law allows babies to marry.

Well, golly gee, I care about sloppy language too. But I care about sloppy thinking more. And here I think the "misplaced" negation is not the problem. The "misplaced" negation is merely symptomatic of a deeper problem, namely the fact that a really idiotic piece of legislation was obviously drafted by a pre-law undergrad in the midst of a heavy night's drinking, and passed by the legislature before sunrise so everyone could get some shut-eye. This AP/CNN story should not be about sloppy language, but about sloppy thinking, though the CNN byline itself suffers from seriously sloppy language.

The reason I say that the negation is the symptom rather than the problem is that the law seems equally odd with or without it. The  law in question goes by the proud name of Act 441 of 2007, Section 1, and was passed in March.  Here are the relevant parts:

(b)(1) In order for a person who is younger than eighteen (18) years of age and who is not pregnant to obtain a marriage license, the person must provide the county clerk with evidence of parental consent to the marriage.

(2) The county clerk may issue a marriage license to a person who is younger than eighteen (18) years of age and who is not pregnant after the county clerk receives satisfactory evidence of parental consent to the marriage under subsection (c) of this section.

So yeah, as you see, the law says that the County Clerk may issue a license to a minor who is not pregnant. But to say that this venerable act suffers from a "misplaced not" doesn't quite hit the mark. First CNN's use of the term "misplaced" is itself misplaced. It suggests that the negation should have been somewhere else, as in e.g.

 ``The county clerk may not issue a marriage license to a person who is younger than eighteen (18) years of age and who is pregnant after the county clerk receives satisfactory evidence of parental consent''?

Or ``The county clerk may issue a marriage license to a person who is not younger than eighteen (18) years of age and who is pregnant after the county clerk receives satisfactory evidence of parental consent''?

Or ``The county clerk may issue a marriage license to a person who is younger than eighteen (18) years of age and who is pregnant after the county clerk does not receive satisfactory evidence of parental consent''?

It's hardly credible that moving the negation somewhere else in the statute would succeed in producing a piece of law that could conceivably have represented the will of the people. Then again, the people elected the bozos who passed the law, so who knows.

Next, shouldn't CNN say "misplaced negations", plural, since the phrase not pregnant appears in both clauses? That is, to the extent that someone misplaced a negation, they did so on at least two occasions. Well, ok, another very minor point. Let us allow that "misplaced" isn't quite right, and "negation" (singular) also isn't quite right, and that what CNN really meant was a pluralized version of what AP put in the article: "extraneous negations" rather than "misplaced not." We shouldn't look at moving the negations, but at removing them. However, removing them, while it would limit the application of the law so that e.g. 8 year-old boys could not marry, would scarcely produce good law. The statute would then imply that, given parental approval, a 12 year old girl could be married provided she was first inseminated.

Or would it? That would appear to be a matter of legal interpretation, and goes beyond what a linguist can pronounce on. But you don't need to take my word for it, since in this Arkansas Government website report, the Arkansas Attorney General provides a relevant opinion. First, he gives some context for the new law. In part, it appears to replace Arkansas Constitutional Amendment section 9-11-102, which the Attorney General reports as saying:

(a) Every male who has arrived at the full age of seventeen (17) years and every female who has arrived at the full age of sixteen (16) years shall be capable in law of contracting marriage.

(b)(1) However, males and females under the age of eighteen (18) years shall furnish the clerk, before the marriage license can be issued, satisfactory evidence of the consent of the parent or parents or guardian to the marriage.

In fairness to the drafters of the legislation, and I use the plural here on the assumption that a large group was partying that night, I doubt that they intended their act to wipe out 9-11-102. Rather, I guess they must have wanted to strengthen it, perhaps by limiting its application to non-pregnant minors. Their intention was then to leave (a), immediately above, as it stands.  However, the Attorney General concludes:

Act 441 of 2007 indeed appears to amend A.C.A. § 9-11-102 to place no limit on the age at which parties may obtain a marriage license with parental consent. In my opinion, the clerk must issue the license if the statutory requirements, including parental consent, are met.

But in that case, the problem is not just one of misplaced negation. The issue of whether there is a negation before the each occurence of the word pregnant in Act 441 cannot bear in any obvious way on whether the entire new statute is intended to strengthen the earlier 9-11-102, or whether it is intended to replace parts of it.

As it happens, the Arkansas Code Revision Commission did in fact attempted to ammend Act 441 by removing the negations. This was the attempt that was rebuffed this week in the court decision that brought this whole legislative potboiler to the AP reporter's attention. But even if the Commission had succeeded, based on the Attorney General's interpretation of Act 441, it must be the case that the variant non-negated Act 441 would still have allowed a 12 year old to get married. Provided she was ovulating and slept around enough.

Can that possibly have been the intent of the Arkansas legislature? Don't look at me... I dont know the answer to that question. But an apparently thorough and well-informed article in Arkansas Online suggests that what the legislature intended was to ban marriage of 16 and 17 year olds who are not pregant, and allow marriage of 16 and 17 year olds only if they are pregnant. And if the Arkansas Attorney General's opinion is to be trusted (who better?), then no amount of adding or taking away negations in Act 441 would have yielded a law that satisfied this intent.

Why then, did the Arkansas Code Revision Commission attempt to fix things by removing the negations? Were they drinking from the same still as the original drafters of the bill? Not necessarily: the Commission is hampered by the fact that its powers extend only to correcting typos. So they had no choice but to treat what was wrong with Act 441 as involving a minor typographical error. Taking out the negations, a farcical and half-assed solution at best, was all they could hope to do given their limited jurisdiction, and even this turned out to be beyond them. However, a side-effect of the Commission's attempt at patching up an awful piece of legislation was that the press came away thinking that the ugly ramifications of Act 441 really did result from a minor typographical error. A great story, perhaps, but I just don't buy it.

Both Act 441 as passed, and the variant Act 441 with the negations removed, are strange pieces of legislation. I'm reminded of an earlier Language Log theme which began with Mark Liberman's discussion of whether Derrida can be "even wrong".

Mark told us about a parlor game in which you have to guess which of two alternatives, one containing a bogus negation, is a real Derrida quote. The simple point was that if you can't tell which is right out of the negated and non-negated variant, then perhaps the original doesn't make sense. Same thing goes here. It's scary when those putting a statute on the books don't notice the difference between a version with a negation and a version without. You gotta ask: if extra negations pass unnoticed, can Act 441 even be wrong?

Act 441 is not wrong, it's idiotic.

Posted by David Beaver at October 12, 2007 07:31 PM