In ruling in favor of religious freedom last week in the Trinity Lutheran case, it seems doubtful the justices of the US Supreme Court had ever heard of Catholic schoolboy Thomas Whall of Boston. If they had, they never mentioned him, though much of the case before them was owing to his legacy.
In 1859, a 10-year-old Whall was asked by his teacher at the North End’s Eliot School to recite the Ten Commandments, and he refused. Beginning the school day with biblical scripture was not unusual, but what Whall’s teacher expected was the Protestant version, which enumerated the commandments in a different way than the Catholic Church.
Whall was whipped across the hands with a rattan stick for his insubordination. His hands cut and bleeding, Whall supposedly fainted from the beating, which went on for a half hour.
In the following days, hundreds of Catholic students walked out of school in protest. What came to be known as the “Eliot School Rebellion” eventually led to the creation of a network of Catholic elementary and secondary schools separate from the public school system.
Protestants responded with an act of defiance of their own.
Maine politician James Blaine in 1875 proposed a US constitutional amendment to deny public funding for religious schools. Since the public schools were de facto Protestant institutions, the target of Blaine’s hostility was obvious: Catholic parochial schools. The proposed federal amendment failed, but it took off at the state level and currently about two-thirds of state constitutions contain “Blaine amendments,” including Massachusetts.
It is one of the ironies of history that Blaine amendments are now used against Protestant-operated schools like Trinity Lutheran’s pre-school and day care center in Missouri.
The facts of the case are fairly simple: Missouri offers a program that recycles old tires into playground surfaces. Trinity Lutheran applied for state funding under the program and was denied. State bureaucrats pointed to their Blaine amendment to justify their decision, which, not surprisingly, was upheld by state courts.
The Supreme Court, however, said Missouri’s policy was unconstitutional under the Free Exercise clause of the First Amendment. Writing for the 7-2 majority, Chief Justice John Roberts said you cannot exclude a church from a public benefit merely because it is a religious institution and that to do so “is odious to our Constitution.”
Of course, the real debate here is not about playground resurfacing; it’s about school choice and whether parents have the right to expect their tax dollars to follow their children into religiously affiliated education settings.
In light of the Trinity Lutheran ruling, the Court returned to the states for “further consideration” cases involving a Colorado tuition voucher program and a state-funded textbook lending program in New Mexico, both of which relied on Blaine amendments to deny religious schools’ participation.
While the Court has not yet ruled on these larger funding questions, it would be hard for the justices to depart from the logic of their reasoning in Trinity Lutheran simply because the benefit is more substantial than a playground resurfacing.
The fact that the Blaine amendments are firmly implanted in anti-Catholic prejudice is no longer the main issue with their continued existence. The far more serious problem is that they are unconstitutional because, as the Court said, they force churches to choose between their religious character or participation in a public program.
The public schools have changed a great deal since the days of Thomas Whall, as have the number of alternatives available to parents and their children. What has also changed is the idea that you can treat churches differently for no other reason than they are religious, and that is a victory for liberty.
Eric Fehrnstrom is a Republican political analyst and media strategist, and was a senior adviser to Governor Mitt Romney.