Articulate and knowledgeable, attorney Dani Eyer, the former director of the ACLU in Utah, presented the standard on the freedom of religion from a constitutional perspective. To introduce this subject, Eyer first gave some background on constitutional law.

Mainly a secular document, religion is mentioned only once in the actual text of the Constitution; there shall not be a religious test to hold public office.

But there are the amendments, the first for the protection of six basic rights: speech, press, assembly, petitioning the government for redress and grievances--and two about religion. One is the establishment clause: "Congress shall make no law respecting an establishment of religion." And the other about religion is: "Neither may Congress prohibit the free exercise thereof."

These two religion clauses go hand-in-hand and are useless without each other, stated Eyer. Together they reflect the freedom of religious conscience and forbid the government from either barring religious observance or imposing religious belief. Despite the symbiosis, there is a perpetual tension between the two.

Onto a brief history of the two religion clauses, Eyer said that our nation has always struggled with this dichotomy. Our country is based on either a secular or a Christian foundation, or said another way--based either on religious freedom or a government directly involved with religion--or based either on the value of liberty or on the value of a divine order. "We're still split right down the middle on this, and always have been," said Eyer, asserting that these two themes shape our national character.

What is the origin of these two contentions? Going back pre-constitution, there was the ideal of sacred liberty from the French Enlightenment. Pitted against that was New England Puritanism, which was based on the notion of Christian governmental authority.

Many believed in the purist version of liberty, equality, and fraternity. Others believed that people erred when they followed Jefferson and the Enlightenment, which they thought stripped the nation of its moral authority and caused us to ignore our Puritan roots. As a result, they thought we should restore God and Christianity back to the country and constitution to win back God's favor.

An example of this rift is in our current pledge of allegiance. The sacred liberty theme says, "liberty and justice for all" while the Christian commonwealth theme says, "one nation under God."

According to Eyer, both have a noble theme associated with them so the controversy remains unsettled. One side says if you lose the tension of the libertarian Jeffersonian angle, you would end up with an authoritarian, Christian base as the primary governmental authority. The other side says if you remove the strong moral impulse associated with Christianity, we would move toward amoral relativism and pure licentiousness. "Make no mistake," said Eyer, "the stakes in this controversy are cosmically and politically high."

Going back to the presidential election in1800, when Adams and Jefferson ran, both were very educated, neither believed in the divinity of Christ. Both believed that God is revealed through the law of nature, and both had an ethical approach to religion. But their politics were polar opposites even as their theocracy was indistinguishable.

Jefferson was a strong advocate for church and state separation while Adams was the champion for church party, believing that if you take church out of the government, the nation's morality would collapse. Interestingly, while Jefferson was raised an Episcopalian and historians refer to him as a deist, he wrote that he thought once everyone was educated, everyone would share the same faith and become Unitarians. Mostly he believed that the church represented the past of the royalists and theocrats, while in the future, freedom and reason would reign.

Eyer noted the irony regarding who played which parts in the church and state controversy. The left wing at that time were the Baptists, who were in favor of Jeffersonian Enlightenment. It was the Baptists who pushed for religious liberty because they were not in the majority--and religious insiders never have a problem with the combination of church and state--so for religious freedom, the Baptists pushed for Jefferson.

On the other hand, the religious right in that day were Episcopalians, Congregationalists, and Unitarians. Why? Because they supported the abolition of slavery; they were appalled that the left's notion of liberty included slavery.

Moving to 1808, the divide between Jefferson and his successor Madison represents the tension between the two religion clauses. Jefferson thought that the churches would unduly influence the government, while Madison thought the government should interfere with freedom of conscience.

During the war of 1812, the country was still evenly divided as to whether we were going to have an empire of liberty or a commonwealth of Christianity. Again the French were involved because they were fighting with the British. To the New England clergy, the federalists, the French were the new anti-Christ. Thus, at the end of the war, they tried to redeem the government with a Christian leader, but ironically, we ended up with Monroe, who was as secular as they come.

For the next 10 presidencies after Monroe, whether they were Democrats or Whigs, there existed a nearly absolute separation between church and state. Eyer said that Jackson, even during an outbreak of cholera, and everyone wanted a national fast and prayer day, refused, stating there was no place for a national prayer day.

Eyer continued that it was during the Civil War when Lincoln said we needed to bring God back into the government; this was when "In God We Trust" appeared on our coinage. As it usually happens during wartime, free speech and separation of church and state fell to the wayside during the Civil War.

Onto modern doctrine, Eyer said that no earlier Supreme Court cases existed that supported the religion clauses. Again, of the two contrasting groups, one group could be called strict separationists; these are the people who believe that government has no business in supporting religious beliefs or instructions, like tax breaks, prayers in public ceremonies, "In God We Trust" on coinage, etc. This group struggles with the existence of any longstanding religious practice intertwined with government.

On the opposite end are what could be considered religious accommodationists, who think that the establishment clause forbids government effort to enforce people to support any single religion but denies that it mandates hostility toward religion, even indifference to religion in general. Therefore, as long as the government doesn't favor one sect over another, or shows equal respect for all religions, the religious accommodationists think that the constitution tolerates all religions in general.

In recent years, the Supreme Court has leaned away from strict separationists and toward religious accommodationists. A good example is how the courts developed the law is in the school settings. If the government is not supposed to coerce citizens to practice a religion they don't believe, then should the government intentionally or not subject people to social pressure to adapt certain beliefs in a prescribed form? What about children who are particularly impressionable?

From the 1960s to the 1980s, the Supreme Court showed sensitivity to the social effects of government policy, especially in promoting religion in public schools. Eventually the court ruled that officially organized prayers and bible readings in public schools violated the establishment clause.

Later in 1992, a very famous Supreme Court case known as Lee vs. Weisman, that by the way included Utah plaintiffs, ruled that prayer in school graduations was inappropriate but drew the line in e.g. state legislature saying that it was okay to have prayer in their meetings because impressionable children did not attend them.

During this period, the court developed the lemon test based on a case with statutes that funded parochial schools toward their secular teaching efforts. The lemon test was used to decide whether something was permitted: a government policy must have a secular purpose, it must not have a religious purpose, it must not endorse the practice of any particular religion, and it must not create excessive government entanglement with religion. This is how the court looks at church and state separation cases. Thus, basically a statute or a law was invalid if its purpose or primary effect was to promote or promote excessive entanglement.

Some cynics, added Eyers, say the lemon test just provided sufficiently flexible enough language to support whatever outcome a majority of the justices instinctively preferred because decisions were not consistent with that standard.

But in the 1990s, the Supreme Court was less inclined to find establishment clause violations even in the public schools, based on the notion that a ban on religious activity looked like prohibition of the people's freedom to exercise it. Therefore, Eyer said, the government walks this tightrope where maybe we're not establishing religion but if we separate them too far, we're stepping on people's right to exercise it.

For instance, around this time, the court held that when public schools open their classrooms and gyms to non-religious groups, like the chess club or the drama club, they not only may, but must allow religious organizations the same facilities on a non-discriminatory basis, notwithstanding the side effects of promoting religion. Thus if you allow some clubs, you must allow all clubs; this came about from a Supreme Court case called the Good News Club vs. Milford Central School. Of course, we are aware how this case has affected Utah. Gong to the state legislature every year for the ACLU, Eyer fought the ban against the gay straight alliance club, and finally the ban lifted.

A recent example is how the Texas board of education voted to allow all sides of the scientific theories to be taught instead of just the strengths and weakness of the Theory of Evolution. Some see this vote as the last stand of Protestant Evangelical, particularly in light of the defeat in 2005 in Dover Pennsylvania where the Intelligent Design plaintiffs were all but accused of being complete frauds by a Republican judge. With the Texas case, one of the many problems is that Texas by nature of its size orders the most school text books in the country--so as Texas goes, so as text books go.

Thus, over the years, the standard has evolved. Sandra Day O'Connor has articulated the standard we use today: a religion should not be condemned unless a reasonable observer views it as endorsing a religious view or practice. Thus, if the government does something that is a cross between church and state, what would a reasonable observer think? And who is the reasonable observer? At the ACLU office, we thought we were reasonable observers, said Eyers. But what would an LDS ward observe? This is a tough one, she added.

The point here is to pick your battles, and not fight over every little thing, Eyer said. In another local example where most Utahns disagree with them, ACLU believed that the restrictions on the Main Street plaza, while there was a public easement was clearly a religious endorsement. The tenth circuit agreed with ACLU; but of course, the city gave the easement back to the LDS church. Eyer said that she used this litmus test to screen calls at the ACLU.

Two more examples: Some people wanted to eliminate the Y from the mountain, saying that was an endorsement of religion. But Eyers thought the Y was more about football than religion, like the U here. The other example was the State Health Department saying that if we need emergency aid, like vaccines, the state would use LDS ward houses. Again, Eyer did not think this was endorsing a religion.

--Sarah Smith