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Langfan: Ameliorating Coercion: The Peril of Precedents

When adjudicating, often the most parsimonious path for the courts is to look at precedents. In the case of whether sectarian prayer should be allowed prior to legislative sessions, many point to the historical precedent set by the Framers of the Constitution by establishing a congressional chaplain days after sending out the First Amendment to be ratified by the states. Many argue that the Framers’ actions indicate the fact that prayer before legislative sessions was then constitutionally permissible and should, therefore, be constitutionally permissible now, as well.

In the 1983 Supreme Court case of Marsh v. Chambers, this logic was employed. Marsh, a senator in Nebraska, felt coerced to participate in the prayers before state legislative sessions. By neglecting to participate in the prayer, he felt it impeded his ability to function with fellow legislators and created tension among the legislative body. As a result, he felt coerced to participate in the prayer—a clear violation of the Constitution. In a 6-3 decision, Chief Justice Burger posited that 1) historical precedents paved the way for legislative prayer in 1789 when the First Congress established prayer before legislative sessions, and 2) Marsh as an adult should not have been affected by peer pressure. Thus, nonsectarian prayer before legislative sessions was constitutionally permissible.

The case of Marsh v. Chambers can be used as a paradigm to establish that nonsectarian prayer should be allowed on the local level as well. Since the Supreme Court ruled that state legislative sessions could commence with nonsectarian prayer, seemingly, deductive logic indicates that local governments should be permitted to do the same. In my opinion, Marsh v. Chambers is an excellent case to establish this practice; however, there are two parameters of the case that must be revisited before setting anything in stone.

First, while I concede that the concept of precedent is of great value, I’m weary of the Supreme Court, or any court, establishing their judgment primarily on historical precedents. Imagine if in 1865 when drafting the 13th Amendment to end slavery, someone would have gotten up and said, “You know, we actually have precedents to allow slavery… It’s been categorically permissible for the past 89 years, so perhaps it’s totally fine!” Imagine if in 1919 when drafting the 19th Amendment of women’s suffrage, someone would have arisen and said, “Wait a second—we have precedents to deny women the right to vote! After all, we’ve been doing it for the past 143 years!” Though precedents can help to derive judicial decisions, precedent alone is not a strong enough leg to stand on. Hiding behind the perilous curtain of precedents devoids courts of creativity and allows for egregiously immoral maxims to be substantiated.

Second, I believe that the Supreme Court inadequately dismissed Senator Marsh’s feelings of coercion among his legislative cohort. While the scientific community believed in the 80’s that peer pressure really only applied to adolescents in their formative years (thus excluding adults), recent research proves otherwise. In fact, recent scientific literature reveals two things: 1) that adults experience peer pressure much in the same way as adolescents do, and 2) individuals experiencing peer pressure exhibit elevated activity in the striatum and medial frontal cortex—areas of the brain related to reward and social reasoning.

Neglecting such blatant evidence indicating that adults are also susceptible to peer influence on a biological level erroneously negates the existence of coercion. On a constitutional level, coercion is impermissible because it violates the Establishment Clause, but more importantly, on a pragmatic level, coercion erodes true democracy by inhibiting opinions and silencing voices of those that have the right to be heard. If individuals feel alienated and coerced because of religion, that means that the entire process of praying before legislative sessions has backfired.

I believe the Framers established the practice of prayer before legislative sessions because they realized the power prayer possesses. Prayer unites individuals—eradicating the self, transcending the individual—for the sake of the greater good. It therefore made sense that the Founders established prayer before these meetings met—so that its members could be inspired to work together as one united body, hearing each others’ thoughts and opinions with open ears and hearts. If individuals feel coerced and alienated because of these prayers, then their historical purpose no longer pertains.

The Constitution promises us, that no matter how we worship, we are all full citizens—and that when we approach the government, we do so not as Jews, Christians, or Muslims, but as Americans. Local government is supposed to be the closest, most responsive arena for citizens to get involved. Is it really the appropriate time to be asking them to identify whether they believe in the same religious idioms as other people in the room?