As chief counsel of record, Neal had the authority to remove Darrow from the case. To further encourage this step, Bailey wrote to several liberal religious leaders with close ties to the ACLU, asking them to write Neal concerning the matter. “We are constantly receiving criticism and protests concerning the Darrow personality and the harm it may do us,” Bailey confided in these letters. “If your opinion is in accord with that which I have expressed, would you be willing to write a letter letting it appear that you do so purely on your own initiative, either to Mr. Darrow or to Dr. John R. Neal, expressing your personal convictions?” Within days, a pointed editorial appeared in The New Republic —whose editors enjoyed close ties to the ACLU leadership—criticizing the conduct of the Scopes defense and urging that Tennessee lawyers handle the appeal .40
It proved impossible, however, for the ACLU to secure either less of Darrow or more of Neal. The causes overlapped. Darrow soon learned of the ACLU’s conspiracy against him and let union officials know that he knew about it. Bailey apologized with a letter dismissing the matter as a “misunderstanding” over the role of local counsel and lying, “I never at any time asked that you be invited to withdraw.” Darrow shrewdly accepted Bailey at his word and even agreed with him about the need for “a leading Tennessee lawyer” to assist with the appellate argument, but added that Neal—Darrow’s potential rival for control of the case—could not fill the role. “He is a fine man,” Darrow wrote in strict confidence, “and could have been a good lawyer if he had given his time to it, but he has chosen to be a professor and is not equipped to take the leading part in arguing the case.” Darrow suggested that the role go to either Robert S. Keebler, the Memphis attorney who had led the fight against the antievolution statute within the state bar association, or Frank Spurlock, the Chattanooga lawyer who had come to Darrow’s defense in the contempt proceedings.41 Bailey did not so easily give up on Neal either as a lawyer or as a means to assert control over the defense, and twice arranged for him to come to New York to discuss a diminished role for Darrow in the case. Neal turned back on both occasions before meeting with ACLU officials, apparently unwilling to confront Hays over the matter. Instead, he wasted his time filing two frivolous petitions in federal court seeking to restrain enforcement of the antievolution statute.
In early September, ACLU counsel Walter Nelles proposed to Bailey a different way to displace Darrow: Have the ACLU relinquish control of the case to a committee of prominent attorneys, and have it select the former U.S. Supreme Court justice and 1916 Republican presidential nominee Charles Evans Hughes to argue the appeal. Hughes soon signaled his willingness to join the cause with a thundering attack on fundamentalist lawmaking in his presidential address to the 1925 annual meeting of the American Bar Association. When Bailey shared Nelles’s suggestion with Hays, however, the Scopes co-counsel exploded. “I think the effect of the publicity of the case and the manner of the trial gives us a better chance for reversal than if the matter had been handled otherwise,” Hays wrote in an angry letter to Nelles. “For other lawyers to win it on appeal will take from Darrow and Malone the credit to which they are entitled. More than this, ... I am not willing to have conservative lawyers and conservative organizations reap the benefit of work done by liberals or radicals.” In a pointed reference to Hughes, Hays added, “I never yet have found any conservative lawyer who, at the beginning, wanted to undertake a case which might reflect discredit on him. When it turns out differently and there seems to be some publicity or honor to be had, then offers of assistance come from all over the country.” Nelles backed down for the present, but asked Hays at least to consider alternative counsel should the case reach the U.S. Supreme Court.42
Darrow had other influential allies in addition to Hays, and their support (coupled with Neal’s ineptitude) probably saved his place on the defense team. Several journalists, particularly those such as H. L. Mencken and Joseph Wood Krutch, who shared Darrow’s hostility toward fundamentalists, maintained that the defense needed to expose Bryan and his “fool ideas” on religion, as Darrow called them at trial, even if it meant losing the case and alienating some mainline Christians. Furthermore, Watson Davis’s Science Service arranged for all of the scientific expert witnesses to sign a letter endorsing Darrow’s “ability, high purpose, integrity, moral sensitiveness, and idealism.”43
The ACLU could hardly dismiss Darrow without antagonizing one faction of its supporters, and Neal seemed incapable of doing the job for them. Although Neal proudly boasted of his status as chief counsel, he persistently failed to communicate with co-counsel and missed the deadline for filing the bill of exceptions with the state supreme court. The missed filing precluded the defense from appealing any issues relating to the conduct of the trial—including the ruling on expert testimony; it could only challenge the validity of the antievolution statute. Even Bailey despaired and, in conjunction with Darrow, asked Scopes to bring Keebler or Spurlock on board as local counsel.44 Scopes showed no interest in involving himself in the dispute, however, leaving the appeal adrift for months until Keebler, Spurlock, and other sympathetic Tennessee attorneys simply assumed responsibility for handling local administrative and procedural matters. “It was necessary to take control from Judge Neal,” Darrow informed the ACLU office. “We never would have gotten the case to the Supreme Court unless we had taken steps to work without him.” Amidst bitter infighting, the basic issue of control remained unresolved for the defense throughout the appeal process. As late as December, when one of the assisting local attorneys asked ACLU officials about who would argue the appeal, Bailey confessed uncertainty. “We ourselves have no interest in wishing to have Darrow, Malone and Hays continue,” he answered. “My only point was that we should not be made to appear as having kicked these men out.”45
Fundraising for the defense also languished. The ACLU had run up $5,400 in expenses for the Scopes case by year’s end (mostly for expert witnesses), but it had raised only $3,800 in its special Tennessee Evolution Case Defense Fund, more than one-third of which came through Malone. Although acting ACLU chair John Haynes Holmes assembled an impressive group of academics to serve on the fund’s advisory committee, many of the “money people” (as Bailey called them) hesitated to join owing to Darrow’s connection with the case.46 Ultimately, it took a special appeal to members of the American Association for the Advancement of Science to wipe out the deficit, but that did not occur until 1926.
Internal conflict and confusion also hampered the state’s effort on appeal. Primary responsibility for defending the law before the state supreme court fell on Tennessee’s elected attorney general, Frank M. Thompson, but Governor Peay insisted on playing a part. Both officials, however, suffered from chronic illnesses that inhibited their ability to cope with the stressful case and would soon kill them. Peay spent the entire trial resting at a sanitarium in Battle Creek, Michigan, where he became seriously agitated over national coverage of the event. “While Governor Peay was still in Battle Creek,” Nashville attorney K. T. McConnico later explained, “General Thompson conferred with me about my appearance as special counsel for the state in the Scopes case, which he said was needing study and attention more than he and his assistants could give it in view of the very onerous duties of his department and in view of his own physical condition.”47 Yet only the governor held authority to employ special counsel for the state, and Peay picked the Nashville attorney Ed T. Seay to handle the appeal. These two lawyers ended up working together on the matter, but at a high cost that the state balked at paying after Thompson and Peay died in office.
Further complications arose when William Jennings Bryan, Jr., and Samuel Untermyer asserted their interest in assisting the state. The elder Bryan had invited both of these attorneys into the case, but Peay and Thompson did not want outside counsel involved. “The people of this state thoroughly resented Darrow, Malone and the others from coming here to undo their statute and in deference to their feelings I suggested that it would be better
for us to use local counsel,” Peay wrote to Untermyer, who, ironically, had just joined the ACLU national committee but stood with Tennessee on the Scopes case.48 Peay made an exception for the younger Bryan, largely out of sympathy, but the state later proved reluctant to reimburse his expenses.
With neither side pushing for early consideration of the matter, the appellate process dragged on for eighteen months, during which period the Scopes case continued to rankle Tennessee. At its annual meeting in November, the Tennessee Academy of Sciences went on record against the antievolution statute and soon thereafter filed a brief with the supreme court on Scopes’s behalf. The Unitarian Laymen’s League, a national association that included members from Tennessee, also submitted a brief in support of Scopes—the only other group to do so. Late in 1925, the Tennessee Christian Students Conference, a modernist association of collegians from throughout the state, adopted a resolution condemning the antievolution statute as harmful to both education and religion.49 On the other side, conservative religious and patriotic organizations besieged Governor Peay with letters and petitions urging him to stand firm. The Ku Klux Klan took up the cause with vigor, and the defrocked Klan official Edward Young Clarke formed a short-lived rival group in the Southeast called the Supreme Kingdom, whose primary purpose was carrying on Bryan’s crusade against teaching evolution. Regional opinion had so solidified that when Mississippi passed its antievolution statute early in 1926 the ACLU could not entice a local teacher or taxpayer to challenge it, despite offers similar to those that recruited Scopes.50
Tennesseans caught in the middle felt increasingly frustrated. George Fort Milton, for example, took his family on an extended trip to the West Coast. “We hope to wipe out the last trace of the Dayton trial, for it was a trial not only of Scopes, and of the state, but of the fortitude and self-possession of all of us,” he wrote to Peay, adding a plea “to keep down any attempts of your friends to inject fundamentalism into state politics as a political issue.” Yet 1926 was an election year in Tennessee, with all state offices on the ballot—including every seat on the supreme court. “The greatest problem has been in keeping the case out of politics,” one of its assisting local attorneys reported to the ACLU. “Both the Democratic candidates for governor are loudly proclaiming their respective defenses of the faith and Peay’s only opponent is doing all within his power to out Herod Herod.” Running on his record as both a progressive reformer and defender of religion, and despite declining health, Peay handily won an unprecedented third term as Tennessee governor, only to die a few months later. In an apparent attempt to keep the Scopes controversy out of their campaigns, the state supreme court justices delayed their decision in the case until after the election. Scopes privately interpreted this as a sign that they planned to overturn the statute. His lawyers shared his optimistic outlook.51
Defense counselors based their optimism on the strength of their written and oral arguments to the high court. Hays and Keebler took the lead in drafting the defense’s appellate brief, signed by nine attorneys—including Darrow, Malone, and Neal. After reviewing the book-length document, Bailey expressed his concern to Hays that the names of “six ‘foreigners’ and only three ’natives’ appeared as signatories, but conceded to Keebler, “The brief is an excellent one and ought to do the trick.” In reply, both attorneys smugly predicted victory, though Hays had admitted earlier to Nelles that “perhaps I have become over-convinced by the brief I have written.”52
At least to themselves and their crowd, the defense’s argument seemed compelling, even though it added nothing of consequence to that made at Dayton. Once again, the defense stressed that the antievolution statute unreasonably restrained the individual liberty of teachers and students by establishing a preference in public education for a particular religious belief over the conclusions of modern scientific thought. Since the argument had not changed, defense hopes clearly rested on an assumption that a more sophisticated audience in Nashville would judge it. Speculating about the impact of this brief on opposing lawyers, Neal gloated, “It is quite evident that they have been presented with a much tougher problem than they expected. Victory doesn’t now seem quite so impossible or visionary.”53
If the defense brief intimidated Tennessee’s lawyers, their 400-page reply brief did not show it. Writing for the state, Seay and McConnico countered the defense’s plea for academic freedom with an unabashed appeal to majoritarianism that would have made the Commoner blush. “The public schools are created by the legislature,” the brief began in Bryanesque fashion, “and the courts can in no manner control, limit or proscribe the legislature in the exercise of power” over them. It did not end there. “The fact that a group of self-styled ‘intellectuals’ who call themselves ‘scientists’ believe that a certain theory or thing is true does not to any degree prevent the state legislature ... from forbidding the teaching or practicing of such a thing or theory which the legislature may conclude to be inimical ... to the general public welfare.” Bryan crusaded only against teaching evolution in public education and maintained throughout that evolutionists could start their own schools; the state’s brief recognized no such limits on majority rule. “‘Scientific’ superficialists and intolerants,” it emphasized, “under a perhaps soiled or even red banner of ‘academic freedom’ [cannot] foreclose the police power of the State’s constitutionally chosen and elected representatives as to what is required for the public welfare.” Relying on a recent U.S. Supreme Court decision upholding a compulsory school vaccination program, the brief asserted, “What the public believes is for the common welfare must be accepted as tending to promote the common welfare, whether it does in fact or not.”54 In this brief, the state sounded more like Billy Sunday than Bill Bryan.
Briefs submitted by the Tennessee Academy of Sciences and the Unitarian Laymen’s League attempted to answer the state’s arguments, as did a supplementary memorandum filed by the defense. “Suffice it to say here that ... their theory would absolutely nullify constitutional government and inaugurate the dictatorship of the majority,” the Academy’s brief noted. “The cases relied on by the State involved reasonable regulations made by the legislative body in relation to public work—not unreasonable, arbitrary, and capricious regulations.” All three additional appellate documents attempted to show the unreasonableness of the antievolution regulation, the Academy stressing scientific arguments for teaching evolution and the Unitarians attacking religious ones against it. “Innumerable numbers of our greatest Christian scientists, philosophers, educators and ministers firmly believe in the truth of the origin of man as taught by evolution,” the Academy’s brief concluded. “The State has no right ... to stifle by legislation the influence of such men.”55
The Tennessee Supreme Court set aside two days at the end of May for oral arguments—much more time than it customarily gave to cases. Scopes’s trial team reassembled for the event, augmented by Keebler but absent Malone; Seay and McConnico stood alone for the state. “Newspaper men from many parts of the country are assembling in Nashville, and special leased wires have been arranged by the various news agencies to lead from the courtroom itself,” one local paper reported. Spectators again filled the chamber. “Every door and window was blocked by scores who, unable to gain entrance, contented themselves by standing on chairs and tables,” another paper noted. “Many others are turned away.” Darrow promised to keep on his big-city suit coat and vest this time, but assured reporters that he still wore the small-town suspenders underneath, joking that he “would doubtless be quite lost without them.” The two most responsible for bringing the case, George Rappleyea and John Butler, claimed front-row seats. Scopes himself refused to attend, curtly telling the press that he was “not interested in the outcome and wanted to forget the entire episode.” Promoters and proselytizers had harassed him for nearly two years; he wanted his privacy back.56
Fulfilling his now titular role as chief counsel for Scopes, Neal rose first to introduce the case. It soon bec
ame clear, however, that the defense never resolved who should deliver its oral argument. As it turned out, everyone would. An attorney for the Unitarian Laymen’s League opened the argument with a rambling denial “that the teaching of the evolution theory is likely to cause our youth to lose their faith in God.” Hays followed with a thumping legal plea grounded squarely on the due process clause of the Fourteenth Amendment, which he claimed prohibited any state from enforcing unreasonable laws. Tennessee’s “absurd” antievolution statute violated this standard as much as a law against teaching Copernican astronomy would, Hays asserted. “The theory of our constitution is that in the competition of ideas, truth will prevail,” he concluded. “We plead for freedom of education, for the liberty to teach, and the liberty to learn, for in this small statute lies the seed of a doctrine which in generation may reach out and stifle education.” Counsel for the Tennessee Academy of Sciences finished the initial presentation for the defense by warning of dire consequence for science and medical education if the law remained in effect. 57
Summer for the Gods: The Scopes Trial and America's Continuing Debate Over Science and Religion Page 26
