COMMENTARY: The history of early public schools should make Catholics wary of allowing public officials to dictate religious affairs.
In 1859, 10-year-old Thomas Whall was beaten with a stick by a public-school administrator for refusing to recite the King James Version of the Ten Commandments.
Whall’s experience was hardly exceptional for 19th-century Catholics. As I have written elsewhere, early public schools were often used to indoctrinate Catholic children in mainstream Protestantism. Many parents had nowhere to turn — the same groups that insisted on the King James Bible in public schools stifled Catholic schools by denying them any share of public aid. From Maine to Ohio, violence raged when Catholics objected to mandatory Protestant Bible readings or sought support to build their own schools instead.
These episodes remind us of the hostility that Catholics faced as they settled in this country. They also warn of the harm in taking away parents’ power to shape their children’s religious lives and giving it to government officials instead.
Faint echoes continue today. In Texas, a new law requires the Ten Commandments to be posted in a way that is “easily read” in every public classroom. The displays aren’t used to teach about religion, history, law or anything else. They hang in every class, from physics to fine art, with no function but to confront captive audiences of children with scriptural commands, all day, every day, for 13 years.
Texas does not demand Bible readings backed by corporal punishment. But the history of early public schools should make Catholics wary all the same. We know what it is to be a religious minority and what it is for our children to endure coerced religious instruction.
In a recent Register piece, however, Andrea Picciotti-Bayer argues that Catholics “should be the first to defend” this law. She criticizes Notre Dame Law School’s Lindsay and Matt Moroun Religious Liberty Clinic, which I direct, for failing to jump aboard.
Ms. Picciotti-Bayer’s criticism is framed as constitutional interpretation, but her charge to Catholics sounds in civics. She fears that opposing Texas’ law will aid secularists who view religion as “a hazard in public life.” She encourages those who see things differently to defend the place of religion in society.
Her reminder of religion’s civic value is well taken. But her view of Texas’ law is misguided.
The suppression of religion in public life is indeed a serious threat to religious freedom and civic flourishing. For decades, both suffered under a know-it-when-you-see-it approach to the Establishment Clause that imposed a wooden secularism. The Supreme Court has begun repairing those harms, rebuffing efforts to deny funding to religious institutions or scrub religion from public spaces. Those are important victories to defend (and ones our Clinic supported at every step).
But those challenges cannot blind us to a danger on the other side: allowing public officials to dictate religious affairs. Religious freedom is no better served when the government enforces its preferred beliefs than when it silences others’.
A brief our Clinic filed on behalf of leading First Amendment scholars argues that Texas’ law crosses this line. A defining feature of religious establishments was the use of civil power to forge uniformity in religious thought, and compulsory religious instruction was key to that effort. Defenders of religious liberty denied government that authority by adopting the First Amendment.
Texas claims the same power in modern form. It does not compel children to hear sermons or look upon the Decalogue in churches. But it requires them to attend school on pain of criminal penalties, and public schools are all that many families can afford. By posting the Commandments throughout those schools, with no function beyond showing what God requires, Texas uses that coercive power to teach religious truth.
The problem isn’t that Texas brings religious texts into classrooms. Texas can teach an awful lot of things about religion, including the civic importance of the Commandments. But it hasn’t. It has pushed a view of religious truth on a captive audience it requires to be there. The difference matters.
Ms. Picciotti-Bayer largely avoids the constitutionality of compulsory religious instruction by suggesting Texas’ version isn’t bad enough to strike down — it is a “silent tablet” that many find inoffensive and students might ignore. The implication is that it is better to allow a step in that direction than risk a ruling that invites courts to question other religious expression.
That is a dangerous compromise that supporters of religious freedom should reject.
The compromise is hard to contain. If Texas can lightly teach religious truth, where is the limit? What if the Commandments covered every wall? Can teachers recite Scripture, so long as students can tune them out? A “posters only” exception is not a constitutional principle.
More deeply, mainstream comfort with an action is not constitutional justification. It is the reason constitutional rights exist. The point of the First Amendment is to protect those not in power from the excesses of those who are.
This should be old news to Catholics. The Protestant readings forced on Catholic children were defended as comfortable to the mainstream. That meant little to those who believed differently, and they fought for decades before constitutional law caught up.
We are all better off when families can access an education that fits their children’s needs, including religious ones. Thanks to robust protections for religious equality and the ascendance of school-choice programs, many can today. Texas opened its own program this year. That is a far better way to promote religious flourishing than dictating beliefs from the top.
Still, not all families have that choice, and the Constitution must protect them too.
Last year, the Supreme Court held that families of all faiths have the right to shield their children from materials in public school that interfere with their beliefs. It reiterated that parents — not school boards — hold the right to “direct the religious upbringing of their children.”
Families like the Whalls would hardly believe these hard-won victories against state-mandated orthodoxy. We must keep defending that ground, even when we are personally comfortable with the beliefs on offer.
John Meiser is an associate clinical professor of law and director of Notre Dame Law School’s Lindsay and Matt Moroun Religious Liberty Clinic.
