Editor's note: This is the first part of a two-part essay. Part two can be viewed here.
Briefly, the key point at issue between Gill and myself is this: whether John Locke's understanding of the relations between religion and civil government, particularly as set forth in his (first) Letter Concerning Toleration (1689), and this Lockean understanding as enshrined in the First Amendment to the U.S. Constitution and subsequent jurisprudence, conceal an essentially totalitarian attitude toward religion (an attitude that is willing to tolerate religious activity only so long as that activity does not fall afoul of the state's laws, laws made for entirely this-worldly reasons and which necessarily will reflect society's changing moral and social notions); or, on the contrary, as Gill contends, whether the Lockean attitude toward religion was positive and designed to promote the health of Christianity, which therefore flourished in the United States until the recent ascendency of militant secularism.
The United States, as Gill rightly notes, is "the best example of a Lockean regime," and therefore this question of the implications of Locke's view is especially pressing for Americans, particularly now since in response to current controversies over political-cultural matters such as same-sex "marriage" and the HHS mandate, we are being told on all sides that our best defense against government encroachments on religiously-motivated behavior is to embrace the First Amendment and its tradition of jurisprudence, both of which rest squarely on the thought of John Locke.
If I could put my reply in a nutshell, I would say that Gill manages to avoid the obvious implications of Locke's theory, as that implication appears both in Locke's own writing and as it is reflected in U.S. Supreme Court jurisprudence; and that moreover Gill has a defective and limited understanding of the relation of the political community to the good of mankind.
But let us begin by examining Locke's argument.
Locke's Letter Concerning Toleration contains not only a plea for toleration on the part of Christians but a plan for the relationship between religion and state. In fact, in order that no one will justify religious oppression by an appeal to the "care of the public weal and observation of the laws," Locke will "distinguish exactly the business of civil government from that of religion" so that there can be an "end put to the controversies that will be always arising between those that have, ... on the one side, a concernment for the interest of men's souls, and, on the other side, a care of the commonwealth." And then we have the statement of Locke's understanding of the role and scope of civil government.
The commonwealth seems to me to be a society of men constituted only for the procuring, preserving, and advancing ... civil interests ...
Civil interests I call life, liberty, health, and indolency of body; and the possession of outward things, such as money, lands, houses, furniture, and the like.
As a result, it is the state's duty "by the impartial execution of equal laws, to secure unto all the people ... the just possession of these things belonging to this life" and it "neither can nor ought in any manner to be extended to the salvation of souls ..."
Since the civil government's concern is limited to things of this world and it is not to involve itself in questions of religious truth—which he repeatedly calls opinion—this would seem to grant the utmost freedom to adherents of any religion. But there is a catch. This is when the religious activity or conduct of any particular group happens to come into conflict with the secular laws enacted by the government. Here is Locke's own example. He first discusses the case of a religion that desired to engage in animal sacrifice. This in no way contravenes the laws of society.
But, indeed, if any people congregated upon account of religion should be desirous to sacrifice a calf, I deny that they ought to be prohibited by a law. Meliboeus, whose calf it is, may lawfully kill his calf at home, and burn any part of it that he thinks fit. For no injury is thereby done to any one, no prejudice to another man's goods. And for the same reason he may kill his calf also in a religious meeting.
But suppose that somehow such conduct did contravene a secular law:
But if peradventure such were the state of things that the interest of the commonwealth required all slaughter of beasts should be forborne for some while, in order to the increasing of the stock of cattle that had been destroyed by some extraordinary murrain, who sees not that the magistrate, in such a case, may forbid all his subjects to kill any calves for any use whatsoever? Only it is to be observed that, in this case, the law is not made about a religious, but a political matter ...
And here, really, is the heart of the matter. The legislator in Locke's state, qua legislator, is concerned only with "life, liberty, health, and indolency of body; and the possession of outward things." The truth or falsity of any particular religion does not come within the purview of the government. Thus in the example above, the government need not, indeed cannot, inquire whether God is pleased or displeased by the sacrifice of calves. It cannot inquire whether God might not end the epidemic more quickly if he is appeased by animal sacrifices. Rather, since the epidemic endangers the country's supply of food or of beasts of burden, the government, necessarily basing itself on purely secular arguments, forbids their slaughter. Reasons of state are hereby limited to the consideration of purely this-worldly motives. Religious considerations are simply not a part of the government's business.
Now this has several consequences. On the one hand, for the most part, the government allows religious groups to go their own way. The government for the most part will not persecute a religion simply because its doctrines are unusual or even unpopular. In fact, in such a Lockean regime the civil authorities will usually not adopt policies that conflict with the practices of the majority religion or religions. Thus as I said in my original article, so long "as American society was permeated by a vague Protestant ethos," it was unlikely that the government would enact laws obnoxious to that ethos.
But on the other hand, minority religions, especially unpopular minority religions, were not treated in the same way. A glance at American religious freedom jurisprudence shows that when dealing with Mormons, Seventh Day Adventists, or Jehovah's Witnesses, the law often interfered with their religious conduct, but it did so on the principle that "the law is not made about a religious, but a political matter."
The most serious effect of this Lockean attitude was the attitude toward religious truth that it engendered. The 1878 Supreme Court case of Reynolds v. United States, which upheld the law criminalizing the Mormon practice of polygamy, exemplifies in a striking manner the Lockean understanding of religion and politics. As in Locke's example of a law forbidding animal sacrifice for the sake of safeguarding the nation's stock of animals, so in Reynolds the Supreme Court exhibited no interest in the question of whether or not God prescribed or proscribed polygamy. Indeed, the Court explicitly stated that "Congress was deprived of all legislative power over mere opinion ..." But this did not mean that the Mormons were free to act upon their "opinion" that polygamy was a divinely ordained practice, because Congress "was left free to reach actions which were in violation of social duties or subversive of good order," and "[l]aws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices."
In his original jury trial in Utah, George Reynolds had testified that according to the doctrine of the Mormon Church, of which he was a member, "the failing or refusing to practise polygamy by...male members of said church, when circumstances would admit, would be punished, and that the penalty for such failure and refusal would be damnation in the life to come." Now the claim that Reynolds was making here was a theological claim, although one certainly at odds with the beliefs of both Protestants and Catholics. But did the Supreme Court respond with a theological argument? No, for, as Locke said, "the law is not made about a religious, but a political matter." The Court said,
Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.
And it continued:
In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests. Professor Lieber says, polygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy.
Just like Locke's hypothetical government that exhibited no interest in whether or not God was pleased or displeased by sacrifices of calves, the U.S. Supreme Court showed no interest in theological arguments about polygamy or about George Reynolds' eternal salvation, but made sociological and political arguments as to why plural marriage was undesirable. And this is the most serious result of the Lockean theory. Religious truth or falsity, which to any believer ought to be of the highest concern, is deliberately excluded from consideration in the public life of the polity. The political community is secular, not only in the sense that its official concerns are exclusively secular, but more importantly because it is wholly uninterested, not only in the truth of any of the various religions, but in the very question of whether there is any religious truth at all.