When The Only Tool You Have Is A Hammer.

On Monday, March 7th from noon to 1:30 will be a Same Sex Marriage discussion forum in the Moot Courtroom. SSM is one of the hottest legal and social topics of our time. The discussion will be lead by Indiana Senator Brandt Hershman-Republican and author of the proposed constitutional amendment to ban SSM (SJR7), and an opponent, Indiana Representative (and our own IU-Indy Law Professor) David Orentlicher-Democrat. I have no doubt the discussion panel will be interesting and I hope to attend. However, when advocates of either side discuss the issue of whether or not SSM should exist and how the rights of homosexual couples are or are not affected, I sometimes wonder if we're forgetting a more basic question. Instead of debating the issue of SSM, perhaps we should take a step back and figure out the fundamental issue of what is a marriage?

The complete adage that inspired the above title is "When the only tool you have is a hammer, every problem begins to look like a nail." It represents a tunnel vision that many people have when looking at life's problems. When exposed to a certain mindset or when a person resolves issues in only a certain way, they try to fit every problem or issue into the mental framework they are familiar with. I believe this is a mindset those in the legal community are especially guilty of. We're so used to working with rights, duties, causes of action, the constitutionality of laws, and correcting wrongs that clients suffered that I'm afraid many of us don't always see the big picture or even ask if a big picture exists?

For the issue of SSM, it is often framed in terms of "how can homosexual couples be denied the fundamental right of marriage" or "how may the institutional of marriage be legally protected from being diluted" or something similar. Notice the language often used describes rights and legal protections. I believe the issues of SSM are pigeon-holed into a legal framework as that tool, that hammer, is the one we're most familiar with.

Has marriage evolved into mostly a convenient legal way to grant tax breaks, recognize clear lines of property distribution upon death, or convey other benefits? Or is that legal aspect of marriage only a small part of "the bundle of sticks" that goes into the marriage institution? As a society in general and as lawyers in particular, how should we observe the historical, the sociological, the religious, and the philosophical aspects of marriage? How do we craft those aspects into the issue of SSM? It would be foolish to deny the existence of those other aspects. I believe it is equally foolish to not use those other tools in this marriage project.

History, sociology, religion, and philosophy are subjects many tried to escape from in college. Who wants to figure out how to use those tools? Yet to build a good deck you need more than the hammer. You also need the saw, the tape measure, the drill, the level, and other tools to perform the job properly. When working on a project as important as marriage, perhaps other tools should be used as well.

Perhaps the question we should ask Senator Hershman and Representative Orentlicher isn't why are you for or against SSM, but rather what is the meaning of marriage? Once we have that question resolved, then we can see how SSM should legally fit in, if at all.