Kennedy's Circular Argument and his Philosophy of Mathematics: #2 Essential, Mum/Dad isn't

In arguing for a new view of what is “fundamental” to marriage, Kennedy lists four principles in serial fashion: (1) marriage is a relation based on “individual autonomy” where “two persons can find other freedoms, such as expression, intimacy, and spirituality”; (2) marriage “supports a two-person union unlike any other … [it] dignifies couples by their commitment … and care … [and] responds to the universal fear of lonel[iness]”; (3) marriage “safeguards children and families,” although it is “no less meaningful for those [without] children” and “an ability or promise to procreate is not … a prerequisite for a valid marriage in any State”; (4) “fourth and finally, … marriage is a keystone of our social order,” quoting Tocqueville’s observation that the high regard for marriage in America gives our society its unusual peace and stability. The court’s conclusion is that “there is no difference between same- and opposite-sex couples with respect to [these] principles” and “the limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest” and “laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”

This summary of the four principles and the conclusion give a sense of the strange circularity of the whole argument about the fundamental right to marry for all couples. The Kennedy court defined the essence of marriage to exclude any references to mothers and fathers or male and female complementarity in their procreative and parental roles, and it simply asserts its four-point definition to be “fundamental” without supporting evidence. But the meaning of “fundamental” and the essential features of marriage and family are precisely what are at issue; they are contested and need to be proven, not merely asserted (for example, why are “two persons” essential, but not a mother and father?). It is odd that the Kennedy majority is so open to historical change in marital norms when opposing male-female roles and so essentialist when limiting marriage to two committed people. It is also striking in making unsupported claims about new family arrangements contributing to social stability. Its statements are arbitrary, reaching outside of legal or constitutional reasoning to popular sociology.

No wonder Chief Justice Roberts says in his dissent, “the majority’s opinion is an act of will, not legal judgment,” and he repeatedly compares its misuse of substantive due process to the infamous Lochner and Dred Scott cases. The dissent by Justice Thomas is also extremely powerful and thoughtful in pointing out that the Kennedy majority has undermined the natural rights basis of liberty and dignity, as well as the natural law basis of the family; it has made them dependent on what government confers on people, not what they possess by natural right, as the American founders believed. Justice Thomas offers a shrewd insight about the whole movement for same-sex “marriage” when he observes that it is using marriage as a stamp or imprimatur of equal dignity conferred by the state, without explaining what ground for dignity there is beyond the coercive state: “The Constitution contains no ‘dignity’ clause, and even if it did, the government would be incapable of bestowing dignity.”
http://www.crisismagazine.com/2015/the-supreme-court-a-despotic-agent-of-change