Seay opened the state’s rebuttal with a broadside. “Our adversaries tell you it is a controversy between modernists and fundamentalists. But I tell your honors there is something more,” he warned. “If you permit the teaching that law of life is the law of the jungle, you have laid the foundation by which man can be brought to accept the doctrine of communism and to the point where he believes it right to advocate murder.” Seay identified Darrow as a case in point: a defender of Communists and murderers as well as evolutionists. “The Tennessee legislature passed this law to stamp out worse things” than merely teaching evolution, he baldly asserted. Yet the statute itself did not cross the line into promoting religion, he assured the court, because “there is no authority for any teacher to teach the theory of divine creation in the public schools.” Seay thus gave the statute a clear secular purpose rather than a solely religious one. Seay reinforced his remarks by reading from a written statement submitted to the court by William Jennings Bryan, Jr., in which he described the law as the ”deliberate, thoughtful enactment of a sovereign people, which was designed to protect their children in their own public schools in their beliefs in the divine origin of man, which in turn measures their responsibilities to God and their fellow man.” Borrowing from the rhetorical arsenal of the defense, the younger Bryan described the issue as one of “freedom” but defined that concept in a way his father would have recognized: the “freedom” of the majority to “protect the children of the state in the public schools in their common belief.”58
Arthur Garfield Hays at the time of the Scopes litigation. (Courtesy of Bryan College Archives)
The court adapted its customary procedure to accommodate the unusual case by permitting Keebler and co-counsel from the Academy of Sciences to respond to Seay before hearing the scheduled closing arguments. Resurrecting accusations leveled against the ACLU during the Red Scare, Seay attributed the ACLU’s interest in the Scopes case to a pro-Communist agenda. Keebler countered that such interest arose solely because the statute denied academic freedom. The law did not serve the broad secular purpose of protecting American values, he added, but merely promoted “that peculiar dogmatism of the Christian church” known as fundamentalism.59 After court recessed for the day, the Academy co-counsel resumed this line of defense in the morning. He denounced Seay’s personal attacks on Darrow and evolutionists. “We all know that thousands of people in this very state, who are devoutly Christian, believe at the same time in the divine origin of man and in his development from a lower form of life,” the Nashville attorney added. “There is obviously no conflict between the doctrine of evolution, as applied to man, and the doctrine of man’s divine origin.” 11 After hearing these lawyers, one reporter observed, “Whereas in Dayton the Scopes defense found little sympathy for their arguments among the town’s citizens and less still from the members of the bar, here the people are indifferent while the local attorneys express convictions that the law is invalid.”60
Any public indifference regarding the law’s validity did not diminish popular interest in the case, however. In anticipation of hearing Darrow’s closing argument, a record audience assembled for the second day, including “many women of prominence in the social life of the city,” as one reporter observed. McConnico, a noted local orator, arrived early for his clash with Darrow and brought with him a large selection of his opponent’s published writings. When Darrow arrived and saw his “Argument in the Defense of Communists” laying on top of the pile, he joked with McConnico, “You won’t have much time for anything else.”61 The scene was set for the dramatic close.
Hoping to establish guilt by association, McConnico resumed the state’s broad assault against the defense. He stressed Darrow’s agnosticism and the ACLU’s radicalism. When seeking aid in challenging the statute, McConnico charged, “Dr. Neal knew where to get comfort.” The ACLU’s promotion of the trial and Darrow’s treatment of Bryan received severe criticism. When the state’s counsel began criticizing local attorneys for assisting the defense, the court finally directed him to “confine himself to the case before the court.” By then, however, his allotted time was running out. He closed with two points. In passing the law, McConnico asserted, the legislature simply sought to “preserve the Bible for all sects” rather than to favor fundamentalism. Ninety-five percent of Tennesseans believed in life after death, he estimated, and teaching evolution undermined this vital faith. Furthermore, McConnico added, the statute did not establish religion but merely provided that “since the Bible can’t be taught [in public schools], we wouldn’t let this thing called anti-Bible be taught.” The state’s attorney asked the court, “Would not Tennessee be committing a tragedy in civil government if it did not intervene to prevent the teaching in her public schools of a dogma conceded to destroy the minds of the people, whether it is right or wrong?” To cheers from the gallery, he urged the justices “to resist the ‘sinister and unclean’ efforts being made to teach ‘this animal dogma’ in the public schools of the state.”62
Ignoring the personal attacks against him, Darrow delivered his prepared closing. It was less a legal argument than a plea for freedom that reflected a thoroughly modern view of science and religion. Seay and McConnico had referred to the Bible as truth and science as opinion; Darrow now reversed the designation. He portrayed religion as a personal matter “that ought to be the affair of the individual” and science as a public activity that “is the cause of progress ... and everything that makes civilization today.” In accord with his viewpoint, he asserted, “The schools of this state were not established to teach religion. They were established to teach science.” Darrow assumed that the Tennessee and U.S. constitutions, through their protection for public speech and from religious establishment, shielded science from religion in the common schools. “The future of America’s public school system and the complete education of her children can be safeguarded only by wiping this law off the statute books,” he declared. When asked by one justice if the state could bar all teaching about origins (whether religious or scientific), as Seay and McConnico proposed, Darrow replied, “You would have to first amend your school act which prescribes that biology must be taught because that is all biology is.” Comparing Scopes’s conviction to the execution of Socrates, Darrow concluded his hour-long argument to great applause as he declared, “We are once more fighting the old question, which after all is nothing but a question of the intellectual freedom of man.”63
Despite rhetorical flourishes on the final day, the appellate hearing failed to stir passions. “Argument before the Supreme Court was in a far different atmosphere from that of the trial,” Hays observed. The Chattanooga Times called it “a flop as a news story as compared with the trial.” At the end, an Associated Press correspondent observed, “Those who had been drawn to the courtroom in hopes of hearing a verbal clash between the distinguished counsel were disappointed.” The formal nature of the proceedings certainly stifled emotions. “Everything was calm, dignified and quiet,” Hays recalled. “There was no rising to the feet to interpose objections, no bickering between members of the counsel and no religious or anti-religious atmosphere,” the Chattanooga Times added.64 Bryan’s absence reduced the drama and Darrow’s style best fit a trial. Finally, the hearing did not end with a climactic verdict. The high court simply took the arguments under advisement and, in this case, waited seven months before issuing its opinion. In the meantime, both sides forecast victory.
Belying its public predictions, the ACLU privately planned for the case to continue. Those plans did not include Darrow. “Now that the Scopes case has gone up to the Tennessee Supreme Court, it is time to consider policies in connection with further appeals,” Bailey wrote to Darrow two days after oral arguments. “We feel that whoever argues the case before the United States Supreme Court should be utterly beyond the reach of prejudice of certain members of that august body, and we seriously doubt whether you, Mr. Malone or Mr. Hays, for example, would meet this requirement.” Flatly r
efusing to step aside, Darrow shot back, “Any possible prejudice that might exist to Mr. Hays or me, would be very much stronger against your organization.” ACLU leaders stood firm. This appeal meant too much to them: a chance for the ACLU’s first major victory and a crack at respectability with Charles Evans Hughes on board. They appealed to Scopes. “I want to say confidentially now that if Mr. Darrow and Mr. Hays insist upon staying in the case and arguing it before the U.S. Supreme Court, the Civil Liberties Union will probably have to withdraw,” Roger Baldwin informed Scopes. “You are the defendant. You have the right to employ whom you choose to take up your case.... You may be put into the position of making the choice.” ACLU counsel Wilcott H. Pitkin privately explained that Darrow’s continued participation “would probably influence badly one or more judges of the Supreme Court [and] would make it impossible ... to procure the names of reputable church-going lawyers on the brief.”65
Although he later said that he would have stuck by Darrow, Scopes never had to make the choice.66 In a clever maneuver, the Tennessee Supreme Court managed to end the embarrassing case without overturning the locally popular law. The antievolution statute only applied to public employees acting in their official capacity, and therefore did not infringe on individual liberty, the court ruled. Scopes “had no right or privilege to serve the state except upon such terms as the state prescribed.” Furthermore, the court added, the law “requires the teaching of nothing,” and therefore “we are not able to see how the prohibition ... gives preference to any religious establishment.” Accordingly, three justices—a bare majority—held the statute constitutional; only two of them, however, interpreted it to bar all public school instruction in human evolution. One justice concocted an exemption for theistic evolution out of the statute’s confusing language. Another called the entire law “invalid for uncertainty of meaning.” The court’s fifth member died before the ruling, and his successor took no part in the decision.67
After upholding the statute, however, the court overturned Scopes’s conviction on the grounds that the trial judge, rather than the jury, fixed the amount of the fine. Yet Raulston had simply imposed the minimum fine after offering the jury an opportunity to set a higher one. Both parties had accepted this procedure at trial and neither raised it on appeal. That should have settled the issue, but the court used it to reverse the conviction, then urged the attorney general to dismiss the prosecution. “We see nothing to be gained by prolonging the life of this bizarre case,” the court wrote. “On the contrary, we think the peace and dignity of the state ... would be better conserved by the entry of a nolle prosequi herein.”68 Without comment, Tennessee’s new attorney general complied a day later—which left no conviction for the defense to appeal.
The most widely publicized misdemeanor case in American history had finally come to an end, with neither side claiming victory. The defense immediately cried foul. Malone denounced the ruling as “a subterfuge on the part of the State of Tennessee to prevent the legality of the law under which Scopes was convicted being tested” by the U.S. Supreme Court. “The whole matter is left in an unsettled condition,” Darrow complained. “It will probably require another case to clear up the matter.” Scopes simply dismissed the decision as “a disappointment,” and no other Tennessee teacher ever again stepped forward to challenge the statute.69 Supporters of the statute, however, could scarcely hail a ruling that all but directed prosecutors not to enforce the law. “Some public officers,” the Nashville Banner reported, “were of the opinion that the state was ‘fed up’ over the Scopes case, and that no circuit attorney-generals would care to reopen the question by bringing indictments.”70 None ever did. The antievolution statute became precisely what Governor Peay predicted when he signed it into law—a largely symbolic act.
Partly as a result of the Scopes trial, the law came to symbolize different things to different people; it became a symbol of pride and regional identity for some Southerners. An Alabaman, for example, wrote to Peay, “The Great Commoner fell at this post maintaining that Tenn. had sense enough to run her own affairs without Yankees from the North to meddle in them.”71 Shortly after the Tennessee Supreme Court ruling, Maynard Shipley wrote of “the threatened South,” where antievolutionism still constituted “a serious menace.”72 By popular referendum, the people of Arkansas enacted the region’s third antievolution statute in 1928. Louisiana soon thereafter joined Texas in barring any mention of evolution from state-approved textbooks. School boards throughout the South imposed local limits on teaching evolution. Subsequent studies suggested that such restrictions enjoyed widespread support among the various groups that comprised southern society.73
At the same time, the tendency of northern evolutionists to blame Southerners for the Scopes trial may have weakened antievolutionism in the North. For example, patrons at New York’s famed Ziegfeld Follies cheered Malone’s returning declaration, “Although we went South, we insisted upon retaining our Northern ideas.” In a typical posttrial comment, one northern journalist linked “the inquisition in Tennessee” to “the South [as] a cultural wilderness.” H. L. Mencken continued to tar and feather the South over the Scopes trial for years, leading Edwin Mims to compare the Baltimore journalist with the Civil War general William Tecumseh Sherman for his treatment of the region. Northerners tended to laugh along with Mencken’s satire and after the Scopes trial displayed little interest in adopting antievolution laws. When one Rhode Island legislator introduced such a proposal in 1927, his bemused colleagues referred it to the Committee on Fish and Game. Even though the antievolution crusade began as a legitimate national movement, with such urban Northerners as Riley and Straton in the lead, it became for the most part a regional phenomena after the Scopes trial. Reporting on the failure of all efforts to repeal the myriad restrictions against teaching evolution in the South, the ACLU attributed it to “stubborn Southern hostility against Northern conceptions of science and faith.”74
During the years immediately following the Scopes trial, partisans on both sides battled over its legacy. Darrow, Hays, and Malone lampooned the prosecution in books, articles, and lectures. They made much of Bryan’s alleged concession on the witness stand that the biblical days of creation symbolized long periods of time, Hays claiming that “even for Mr. Bryan our case might have been proved” and Darrow crowing that “Bryan had contradicted his own faith.”75 Popular science writers such as Henry Fairfield Osborn assailed the prosecution’s ideas of biology and science education. Several of the defense expert witnesses wrote semipopular books or articles expanding on their trial affidavits. Such accounts leave the distinct impression that Scopes won the case in all but the verdict, which “hillbilly” jurors withheld.
Fundamentalists countered in publications and presentations of their own. Riley wrote a long article in the WFCA’s journal refuting defense arguments from the trial and defending Bryan’s testimony. For example, he explained to his followers, “Imagine a self-respecting attorney ... by every conceivable twist and turn trying to get Mr. Bryan to say that ‘God created the world six thousand years ago,’ when the plain statement of Genesis ... leaves latitude for millions and even billions of years.”76 Darrow’s villainy at trial became the subject of countless fundamentalist sermons. In 1927, the popular antievolution science lecturer Arthur I. Brown answered Osborn’s most famous trial-related article, “The Earth Speaks to Bryan,” with his booklet, “Science Speaks to Osborn.” Other opponents of teaching evolution dissected the defense’s scientific affidavits, apparently on the assumption that these documents represented the case for evolution in the popular mind. These fundamentalists made it sound as if the evolutionists suffered a total rout at Dayton.
So long as the antievolution crusade raged on and partisans battled over the trial’s interpretation, historians hesitated to assess the significance of events at Dayton. The trial slipped into the tail-end of Charles A. Beard’s monumental co-authored survey, The Rise of American Civilization, the final volume of
which appeared in 1928. Beard at that time stood atop America’s left-leaning history establishment and rarely passed up a chance to stamp a dialectical interpretation on events. This work identified the trial as a “spectacular battle” in an ongoing “war” between mostly rural fundamentalists and urban modernists but did not present the battle as decisive or the war as resolved. “Among the freethinkers of two continents,” it observed, “the Tennessee case aroused amusement at the expense of the American hinterland, but undisturbed by scorn from such quarters, the Fundamentalists announced that they intended to carry on their campaign.”77 The historian Preston William Slosson included two paragraphs on the trial in his pioneering history of the twenties, The Great Crusade and After, yet failed to comment on its significance. “The trial resolved itself into a verbal duel between Darrow the agnostic and Bryan the Fundamentalist,” he wrote, but Bryan died “a martyr in defense of the faith” and “no one, not even Clarence Darrow, was quite big enough to inherit the mantle of Tom Paine or Bob Ingersoll as a popular American champion of anticlericalism.” The account ended with an unanswered question, “What was the actual state of religious faith among the American public?” Although the Scopes trial secured a bit part in American history, it still lacked a decisive role.78
Summer for the Gods: The Scopes Trial and America's Continuing Debate Over Science and Religion Page 27
