I’ve been thinking a lot about Kim Davis and Kentucky recently, in conjunction with a piece I’ve been writing for a special issue of the Saint Louis University Law Journal dedicated to our annual Childress Lecture event; this year’s keynote was given by Texas Law’s Larry Sager and concerned “Religious Freedom, Social Justice and Public Policy.” My piece is tentatively titled “Formal Marriage,” and it’s dedicated to thinking about what is at stake in the controversy over Kim Davis’ marriage licenses other than what the typical ‘sexual equality/religious exemption’ framing would have us think. In short, the argument is that Kim Davis’ marriage licenses are ‘so very important’ because of the material benefits accompanying marriage—indeed, because of these benefits, marriage licenses can be seen as a kind of paper money. And if marriage licenses/certificates are a kind of paper money, they need to look and feel like ‘the real thing,’ and their supply and distribution must also be tightly regulated. Hence, all the hullaballoo—Eye of the Tiger—over signatures and stamps and clerks in Kentucky.
“Formal Marriage” is clearly an experimental piece, which I’ve had a great deal of fun writing. That being said, it’s also required me to read A LOT about the history of money and its regulation in the United States. Arthur Nussbaum’s “A History of the Dollar,” published in 1957 is truly engrossing in this respect. and widely cited in this area of law. I’ve also relied quite a bit on James Willard Hurst’s “A Legal History of Money in the United States, 1774-1970,” published in 1973, and also Richard Timberlake’s “Monetary Policy in the United States: An Intellectual and Institutional History,” published in 1978.
In the course of going through all this material, I was quite intrigued to discover that, in the early 19th century, Kentucky had been the site of an intense constitutional dispute over the authority of states to issue money. Actually, that’s not exactly what Kentucky was doing during that time, but it’s pretty damn close. As Nussbaum describes what happened during this time:
[Kentucky] established a corporation, the Bank of the Commonwealth of Kentucky, with the entire stock belonging to the state, which also did the managing. The bank had no real capital stock. This institution was authorized to issue bank notes down to 12½ cents. Under the Federal Constitution the creditors could not be compelled to accept them. The Kentucky legislature decided therefore that if a creditor, unwilling to accept the notes, should bring suit against the debtor, the proceedings would be suspended for two years. (Nussbaum, p. 76)
The constitutionality of this evasive set of maneuvers went all the way up to the Supreme Court, and in Briscoe v. The Bank of the Commonwealth of Kentucky, 32 U.S. 257 (1837), the Court upheld the constitutionality of this Kentucky contraption.
While I don’t want to make too much of ‘historic parallels,’ that Kentucky is now the site of yet another significant federal-state ‘paper impasse’ is intriguing. So too is the fact that (as I noted in another earlier paper) Kentucky’s definition of marriage essentially defines a Kentucky marriage as a ‘civil union’—lending yet another layer to the current controversies over sexuality, religion, and marriage there. In short, there is a much more fine-grained analysis of this entire situation that could (and should) be done.