Of Marriage and Monarchy: Why John Locke Would Support Same-Sex Marriage

Abstract

Arguments about discrimination based on sexual orientation generally rest on interpretations of the equal protection clause of the Fourteenth Amendment or about rights to autonomy rooted in modern substantive due process doctrine. Such theories typically presuppose a government that remains neutral among competing moral claims. This Article, by contrast, develops an account of rights against sexual orientation discrimination - including recognition of same-sex marriage - that does not depend on a thin moral conception of the liberal state. Instead, I situate lesbian/gay rights within a Lockean political theory of consent. John Locke's theory of government, which was highly influential for the Founders of the United States, provides a positive moral basis for lesbian/gay equality. Locke's theory derives from the Bible, the observation that the Christian God did not establish governments among humans. Locke also rejected the account of original sin according to which humans need strong government to control their sinful natures. The only reasonable inference is that God intended for all humans to start out as equals, and to negotiate political solutions among themselves in keeping with the imperative to protect the natural rights to life, liberty, and property. Locke's theory depends on the capacity of individuals for moral reasoning. Discrimination on the basis of sexual orientation entails denying the moral-reasoning capacity of lesbians and gay men. Why would any rational lesbian or gay man consent to a government that has the power to discriminate against them based on their sexual orientation? Conservative opposition to same-sex marriage in the twenty-first century is functionally equivalent to conservative support for absolute monarchy in the seventeenth century.

Keywords: same-sex marriage, lesbian, gay, equality, conservatism, New Natural Law, Locke, natural rights, natural law, consent, social contract, Finnis, George, religion