Here’s an interesting new book, Religion in Public: Locke’s Political Theology (Stanford University Press 2013) by Elizabeth A. Pritchard (Department of Religion, Bowdoin) that considers and challenges the view that John Locke sought to privatize religion and instead argues that Locke’s political theology aimed to secularize religion and make it public. John Locke’s views about religion and toleration, of course, are important as intellectual sources for the religion clauses of the US Constitution. The abstract follows.
John Locke’s theory of toleration is generally seen as advocating the privatization of religion. This interpretation has become conventional wisdom: secularization is widely understood as entailing the privatization of religion, and the separation of religion from power. This book turns that conventional wisdom on its head and argues that Locke secularizes religion, that is, makes it worldly, public, and political. In the name of diverse citizenship, Locke reconstructs religion as persuasion, speech, and fashion. He insists on a consensus that human rights are sacred insofar as humans are the creatures, and thus, the property of God. Drawing on a range of sources beyond Locke’s own writings, Pritchard portrays the secular not as religion’s separation from power, but rather as its affiliation with subtler, and sometimes insidious, forms of power. As a result, she captures the range of anxieties and conflicts attending religion’s secularization: denunciations of promiscuous bodies freed from patriarchal religious and political formations, correlations between secular religion and colonialist education and conversion efforts, and more recently, condemnations of the coercive and injurious force of unrestricted religious speech.
Next month, Cambridge University Press will publish Scripture and Law in the Dead Sea Scrolls by Alex Jassen (New York University). The publisher’s description follows.
This book is the first work of its kind to examine legal exegesis in the Dead Sea Scrolls from the perspective of both the history of Jewish law and early Jewish scriptural interpretation. It shows how the Dead Sea Scrolls transform the meaning and application of biblical law to meet the needs of new historical and cultural settings. The Dead Sea Scrolls legal texts are examined through the comparative lens of law and legal interpretation in Second Temple Judaism and rabbinic Judaism. The creative interpretation of scriptural texts in the Dead Sea Scrolls responds to the tension between seemingly rigid authoritative scripture and the need for law and scripture to be perpetually evolving entities. The ongoing legal interpretation of scriptural texts frames the development of Jewish law at the same time as it shapes the nature of the biblical canon.
In response to my post on the Eastern District of New York’s decision striking down the contraception mandate, and specifically my statement and questions about the third party administrator issue noted at the end of that post, reader Matt Bowman (with Alliance Defending Freedom, which represents Conestoga Wood) wrote me with the following helpful explanation (posted with his permission). If others have more information about the “church plan” issue, I’d welcome it, as it has been insufficiently considered.
As background, self-insured plans by religious non-profit entities have to fill out a different kind of “certification” under the final regulation’s “accommodation.” Their certification doesn’t merely declare a religious objection. It doesn’t even merely mean that upon that certification, as you say, the TPA “assumes the obligation of providing the objected-to products to the employees.” The self-insured certification contains language that specifically designates the TPA to provide the objectionable coverage (also described as promised “payments”). The final regulation even points out that this added language is legally operative: the designation words themselves are what cause the TPA’s obligation to go get the coverage. Without the designation telling the TPA to go get that coverage, the TPA wouldn’t have any duty to be involved. The designation has legally operative power because of preexisting rules in ERISA. So it’s important to observe that for self-insured religious non-profits, there’s a “certification,” but there’s also a “designation”….This designation requirement also gives lie to the government’s mantra that religious non-profits don’t need to “contract or arrange for” objectionable coverage. The designation is, by definition, an act of contracting and arranging for the coverage….Because the designation constitutes legal “magic words,” the regulation goes on to specifically censor self-insured religious groups, by banning them from engaging in additional speech towards their TPAs to persuade them not to provide the objectionable coverage, for fear that such evangelical speech might negate the designation’s magic words. Finally, the regulation tells TPAs that if they get a self-insured certification+designation, and if they provide the birth control coverage, they will get reimbursed plus 10%.
In this context, the government has recently dropped somewhat of a bombshell into the non-profit lawsuits. It has declared that [it] didn’t realize until now that [its] penalty on TPAs does not apply in a “church plan,” because church plans are exempt from ERISA. (It’s important to note that “church plans” are not the same as a church’s plan. A church, which is exempt from the mandate, might have an insurance plan. But “church plans” are a defined category that enroll thousands of non-exempt non-churches, like universities, hospitals, charities, etc., who merely share a religious affiliation.) The government’s revelation has led to bizarre results. The government insists that entities enrolled in self-insured church plans must still file their designations, which contract and arrange for their TPA to obtain the exact coverage the organization objects to. But the government admits that the designation is false: it does not, as claimed on the face of the language, actually trigger ERISA duties on a church plan’s TPA, because these plans are exempt from ERISA.The designation does, however, trigger the TPA’s reimbursement plus 10% if they choose to cover the items. And the government vaguely says it will consider “fixing” this oversight (three years, six regulations, and 1 million public comments later). Of course all of this could have been “fixed” and avoided if religious objectors were exempt at the outset.
The impact of this revelation was on grand display in the EDNY case.