In a recent column distinguished Christian ethicist David Gushee of Mercer University invoked the thought of English philosopher John Locke to explain his reaction to President Obama’s decision to not defend the Defense of Marriage Act (DOMA). That Act, signed into law by President Clinton in 1996, reaffirmed at the federal level what had until recently been the prevailing understanding at every level of American government since the colonies: marriage consists of a union between a man and a woman. DOMA also stated that no state would be required under the full faith and credit clause of the Constitution to recognize same-sex marriages licensed in another state. (For more on Obama’s DOMA decision, see articles in Public Discourse by Gerard Bradley and Matthew Franck.)
Gushee’s argument can be summed up as follows. First, John Locke’s political philosophy calls for an extremely limited role for the state with regard to moral and religious matters. Such a view does not allow government to use coercion to enforce convictions about the good life apart from what is necessary for basic protections for life, liberty, and property. Second, our own constitutional order established in 1791 with the passage of the Bill of Rights was fundamentally Lockean rather than Christian. Third, Christianity’s fading influence with regard to publicly enforced morality has been eclipsed by the Lockean conception, and so the Lockean view will, and should, govern our nation’s view on same-sex marriage. The Christian should, finally then, appeal to his faith with regard to sexual ethics privately but accede to the Lockean understanding when it comes to guidance for how to think about same-sex marriage as a matter of public policy.
Gushee is quite right to point out that a crucial part of Locke’s project was to protect religious belief and practice from the meddling of government. Apart from that, however, nearly every component of his argument is wrong or, at best, very misleading. First, he is mistaken in asserting that Locke’s conception of government ruled out what we call morals legislation. Throughout his many works Locke emphatically denied that adopting religious toleration meant tolerating what he referred to, sans euphemism, as adultery, debauchery, sodomy, and promiscuity. Professor Gushee reports that it is his reading of Locke’s Second Treatise that has revolutionized his approach to public policy, but Professor Gushee should also read Locke’s First Treatise, section 59, where he writes that adultery and sodomy violate the law of nature because they threaten the “security of the marriage bed,” which he links explicitly to procreation.
Not only does Locke condemn these activities morally, he insists on a role for government to prohibit them legally, and not because of any special revelation. In a particularly telling passage in Locke’s famous Letter Concerning Toleration, Locke responds to an objection that if government cannot enforce religious truth it will open the floodgates to all sorts of strange and immoral religious practices:
If some congregations should have a mind to sacrifice infants, or, as the primitive Christians were falsely accused, lustfully pollute themselves in promiscuous uncleanness, or practise any other such heinous enormities, is the magistrate obliged to tolerate them, because they are committed in a religious assembly? I answer, No. These things are not lawful in the ordinary course of life, nor in any private house; and therefore neither are they so in the worship of God, or in any religious meeting. [emphasis added]
It follows that if Locke believed the government could prosecute adultery, fornication, and sodomy, his approach to government would not mandate same-sex marriage.
Locke was neither an extreme libertarian nor a proponent of a Christian government. He could advocate religious liberty and insist on morals legislation because he believed that all citizens had access to moral truths through the natural law, and thus could be held accountable regardless of religious beliefs. One may or may not find natural law plausible, but it occupies a respected place within Western—and Christian—political thought and Locke was hardly out of the ordinary in his reliance on it. Indeed, it is hard to know how Gushee could avoid relying on something similar if he believes, as I’m sure he does, that non-Christians should abide by secular laws forbidding theft or sexual assault. One can, I note in passing, offer reasons as to the wrongness of theft, or even same-sex marriage, without relying on scripture.
Gushee has discovered a “Locke” that John Locke himself would not recognize. Founding-era Americans would not recognize Gushee’s Locke either. Gushee describes Locke’s views as emerging victorious over Christendom in 1791, though in fact Locke was much more influential in the events leading up to 1776 than he was in the constructive task of establishing a new constitution. Needless to say, Locke’s views, were they truly to sanction the sort of public license that Gushee claims, would never have enjoyed the acclaim they did amidst a founding generation that had rather robust views about public morality and the government’s role in protecting it.
Gushee’s argument fails to be persuasive in one final, though decisive, way. Let us grant for the sake of argument that Gushee is right about Locke’s political philosophy and that the founding generation understood, and adopted, Locke’s views as Gushee describes them. The government should not enforce our moral convictions, no matter how dearly we hold to them, but should restrict itself to minimal commitments to public order and personal liberty. Does this not undercut entirely the very case for same-sex civil marriage? Isn’t the argument for same-sex civil marriage itself presented as a matter of personal conviction about what justice requires?
Gushee’s Locke may have been decisive back when the argument from gay rights activists was based on privacy and letting people do what they would like in their bedrooms. Yet ever since the Supreme Court struck down sodomy laws in Lawrence v. Texas in 2003, gay-rights arguments have generally shifted from pleas to be left alone to demands that same-sex relationships be recognized and enforced as the moral and legal equivalent of heterosexual marriages. If the state cannot uphold a controversial traditional view of marriage because it lacks the moral warrant to do so, how can it then in turn uphold a controversial progressive view of marriage? Gushee’s argument, taken to its logical conclusion, seems to lead not to an acceptance of same-sex marriage but to the abolition of a public recognition of marriage altogether. Neither the real John Locke, nor a hyper-libertarian reconstruction of him, can help Professor Gushee cordon off his personal convictions from the public square.