The United States Constitution does not say much about state restrictions on individual liberty beyond the Fourteenth Amendment bar against states depriving “any person of life, liberty, or property, without due process of law.” With respect to this clause, liberals of the 1920s worried mainly about conservative federal judges using it to strike down state economic regulations designed to protect workers, such as by minimum-wage and maximum-hour laws. This placed the ACLU in an awkward position when it sought to use the same clause to prevent Tennessee from imposing conditions on Scopes’s employment. Taking a broad view of the matter, the liberal New Republic asked in 1925, “Why should the Civil Liberties Union have consented to charge the State of Tennessee with disobeying the Constitution in order legally to exonerate Mr. Scopes? They should have participated in the case, if at all, for the purpose of fastening the responsibility for vindicating Mr. Scopes, not on the Supreme Court of the United States, but on the legislature and people of Tennessee.”1 Longtime ACLU supporter Walter Lippmann took a similar position in scoring the Scopes defense. Sensitivity to this issue influenced the way in which Hays invoked the due process clause in Dayton—always stressing that it barred patently unreasonable state laws rather than those that violated any specific individual right, even freedom of speech or the establishment of religion, lest it provide authority for courts to use property rights to strike statutes.
By the 1960s, however, federal courts had long since stopped using the Fourteenth Amendment to strike down progressive state economic regulations and instead used it to void repressive state social legislation. The process began the same year as the Scopes trial, when the Supreme Court first ruled that the “liberty” protected from state infringement by the due process clause incorporated the First Amendment right of free speech. It took more than twenty years before the High Court added the establishment clause to the rights incorporated into the Fourteenth Amendment. Once it did, the Court quickly began purging well-entrenched religious practices and influences from state-supported schools. Justice Hugo Black had championed the complete incorporation of the federal Bill of Rights into the Fourteenth Amendment since his appointment to the Supreme Court during the height of New Deal disputes over the constitutionality of federal economic legislation, and later he took the lead in applying the establishment clause to public education. In 1948, Black wrote the initial decision barring religious instruction in public schools. Fourteen years later, he added the landmark opinion outlawing school prayer. In 1963, he joined in barring compulsory Bible reading from the classroom.2 These rulings finally provided solid authority for effectively challenging antievolution statutes under the federal Constitution. The Scopes legend did the rest.
The role of science in American education also changed during this period. Cold war fears that the United States had fallen behind the Soviet Union in technology led the Congress to pass the 1958 National Defense Education Act, which pumped money into science literacy programs and encouraged the National Science Foundation to fund development of state-of-the-art science textbooks. Freed from market considerations, a team of scientists and educators working under the auspices of the Biological Sciences Curriculum Study (BSCS) produced a series of new high school biology texts that stressed evolutionary concepts. Commercial publishers rushed to keep pace. Despite scattered protests by fundamentalists, school districts throughout the country adopted the BSCS textbooks—even in the three southern states with antievolution laws.3 No prosecutions resulted, but the new books caused some teachers to question the old laws—a few of whom took their questions to court by filing civil actions challenging the constitutionality of state laws against teaching evolution.
Two of these lawsuits played decisive roles in overturning the antievolution statutes. One began in Arkansas shortly after the Little Rock public schools adopted new textbooks in 1965. It challenged the constitutionality of that state’s antievolution law, which Arkansas voters adopted by popular referendum in the wake of the Scopes trial but which local prosecutors never enforced. The state teachers’ organization instituted this action, and a young biology instructor named Susan Epperson served as the nominal plaintiff. The Arkansas attorney general personally argued the state’s case at trial, vainly attempting to present the statute as reasonable. He questioned the theory of human evolution by noting, among other things, that anthropologists during the preceding decade had exposed the Piltdown fossils as an elaborate hoax. Limiting the issue to Epperson’s freedom to teach about various theories of origins, and cutting off specific testimony regarding any one of them, the trial judge promptly overturned the statute on federal constitutional grounds. In Tennessee a year later, Gary L. Scott threatened to challenge his state’s antievolution law after losing his temporary teaching post for reportedly telling students that the Bible was “a bunch of fairy tales.” His case generated headlines because it arose just as the Tennessee legislature again wrestled with repealing that law. Proponents of repeal compared Scott to Scopes as fellow victims of the statute. Indeed, the media referred to both cases as “Scopes II,” and John Scopes, who recently had reemerged from obscurity after publishing his memoirs, spoke out in support of both Epperson and Scott.4
“I am going to review John Thomas Scopes’s book,” the associate editor of the Memphis Press-Scimitar told his boss early in 1967, “and I’d like to do it in a way that will stir up interest in getting the 42-year-old ‘monkey law’ repealed.” The editor-in-chief agreed, and suddenly the media spotlight shifted onto the Tennessee legislature. A series of editorials and articles critical of the law ensued. Editorialists throughout the state rallied behind legislation offered by Memphis lawmakers that, as one sponsor promised, “would remove the tag ’Monkey State’ from Tennessee and allow evolution to be taught.”5 The Nashville Tennessean tracked the bill’s progress in a series of editorial cartoons showing “Col. Tennessee” in a monkey’s tree, contemplating whether to climb down. The national media picked up the story, which fit neatly into the popular image of a New South trying to shed its benighted past. Fitting this image, some papers noted, the Tennessee legislature now included a few African Americans (due to federal civil rights legislation) and more urban members (as a result of reapportionment ordered by the U.S. Supreme Court). “It’s been a long fight for the people of Tennessee,” Scopes told reporters. “I think the people there realized that it was a bad law and would have to be repealed sooner or later. I suppose the time has come.”6
“The upshot of the Press-Scimitar’s campaign,” the newspaper’s owners later boasted, “was that exactly two months to the day after it started, the Tennessee legislature repealed the ‘monkey law.’ ”7 The lower house acted first, passing the bill by a two-to-one majority. A caged monkey bearing the sixties-era sign, “Hello Daddy-o,” participated in the proceedings on the house floor. A few representatives spoke out against repeal, one of them telling his colleagues, “I’ve learned long ago if you try to conform to others, you will not be yourself. I care not what others say.” Yet most simply wanted to free their state from any legacy of the Scopes trial. “I may be leaving,” Col. Tennessee told the monkey in the next Tennessean cartoon. “Guess I’ve been a monkey long enough.”8
The three national television networks sent camera crews to broadcast the “historic” senate vote to repeal the antievolution law. Instead, as one reporter described the scene, “The debate bogged down in public professions of faith and little discussion of the merits of the bill,” ending in a sixteen-to-sixteen deadlock that temporarily preserved the status quo. “Oh, America, America,” one opponent of repeal declared during the debate, “I’m a sinner and proud to testify that I believe the very word of God.” A proponent countered, “I reread the Book of Genesis this morning and I do not find any conflict between Darwin’s theory and the Bible.” Excerpts from the debate appeared on the television news along with clips from Inherit the Wind. “Seems I’m still here,” Col. Tennessee greeted the monkey in the next morning’s paper, “Have a
nut?”9
Opponents of the law now used Scott’s threatened lawsuit, Scopes II, to pressure the senate. The national ACLU offered its assistance, as did famed defense attorney William M. Kunstler—a latter-day Clarence Darrow. Sixty Tennessee teachers and the National Science Teachers’ Association joined as co-plaintiffs when Scott filed his challenge to the antievolution statute in federal court on May 15, 1967.
Local editorial cartoon commenting on legislative efforts to repeal the Tennesseeantievolution law in 1967. (Copyrighted by the Tennessean, April 15, 1967. Reprinted with permission)
“Nobody is asking any legislator to sacrifice any personal religious convictions by taking this law off the books,” the Tennessean commented in its lead editorial that day. “Repeal simply means ... that Tennessee would be saved the ordeal of another trial in which a proud state is required to make a monkey of itself in a court of law.” Senators capitulated the next day. With network news cameras again in the chamber, they voted without debate to repeal the law. Scopes hailed the action, but one national correspondent reported “mixed feeling in Dayton about the matter.” Several townspeople expressed support for the old law. “Evolution should be taught as a theory,” former Scopes trial witness Harry Shelton now conceded. “Teaching it as a fact, however, is a different matter.”10
Two weeks later, the legal issue sprang to life anew when the Arkansas Supreme Court reversed the trial judge’s ruling in the Epperson case. The court did not hear oral arguments in the case or issue a formal written opinion. It simply upheld the Scopes-era law as “a valid exercise of the state’s power to specify the curriculum in its public schools,” and added that it “expresses no opinion on the question of whether the Act prohibits any explanation of the theory of evolution or merely prohibits teaching that theory as true.”11 The forces that had rallied around Scott now threw their support behind Epperson’s further appeal. Four decades after the Scopes ruling, the ACLU finally had a decision that it could appeal to the United States Supreme Court. “The fact that the appeal now will have to be carried forward from Arkansas—rather than from Tennessee where the nonsense all started—will be readily productive of the kind of headlines that almost everybody in Arkansas seems to deplore,” one Little Rock newspaper complained.12 Before the High Court could hear the merits of the case, however, the justices had to decide to accept the appeal. Again, the Scopes legacy proved decisive.
Justice Abe Fortas took up Epperson’s cause behind the scenes at the Supreme Court. After receiving the plaintiffs’ petition, his young law clerk, Peter L. Zimroth, advised Fortas to “dismiss and deny” the appeal because, as the clerk wrote in a memo, “This case is simply too unreal.” Zimroth explained that the statute may not bar teaching about evolution and, if it did, then prosecutors never threatened to enforce it. “Unfortunately, this case is not the proper vehicle for the Court to elevate the monkey to his proper position,” he concluded. Fortas had other ideas. “Peter, maybe you’re right—but I’d rather see us knock this out,” he scrawled across the memo, “I’d grant or get a response.” The Court went along with Fortas insofar as asking the state to respond. Arkansas’s new progressive attorney general, Joseph Purcell, who had taken office since Epperson’s original trial, had no special interest in the old law. He filed a perfunctory answer that did little more than assert that the statute constituted a valid exercise of state authority. “The response is as outrageous as the law which it seeks to defend,” Zimroth now advised Fortas. “With you, I would like very much to strike the law down. However, I think the problems raised in my original memo are substantial.... ” After crossing out the last phrase, he simply concluded, “I would still recommend that the court dismiss and deny.” Fortas held firm, however, and the Court agreed to hear the case.13
The resolve of Fortas to hear the appeal probably sprang from his special interest in the Scopes case, which he experienced almost firsthand as a Tennessee public high school student during the mid-1920s. The fundamentalist—modernist controversy had swirled about him as a working-class Jewish boy growing up in the Baptist citadel of Memphis. This background certainly entered his thoughts as he considered the Epperson appeal, because his files for the case include a reply from an old friend to whom he had written about the case: “Now that the decision has been made, I should like to have a chance some day to review some of the arguments made in Breckenridge High School in 1925,” the friend reminisced. “They dealt mostly with [biblical] Higher Criticism.” Fortas left Tennessee for a career resembling that of Arthur Garfield Hays—including an Ivy League legal education, government service, a lucrative East Coast corporate law practice, and close ties to the ACLU in defending civil rights and liberties. Fortas dearly wanted to decide the Epperson case, and did so as one of his last majority opinions before a financial scandal forced him from the bench.14
Echoes of the Scopes trial resounded throughout Epperson’s appeal before the Supreme Court. At the outset, Justice John M. Harlan’s law clerk warned in an internal memorandum, “One objective of the Court should be to avoid a circus à la Scopes over this.” Yet participants could hardly refrain from drawing analogies to that legendary case. The plaintiffs’ principal brief to the Court closed with a dramatic reference to “the famous Scopes case” in Tennessee, and the “darkness in that jurisdiction” that followed it. The state opened its plodding written reply by appealing to the authority of the Scopes decision and closed it with extended excerpts from the Tennessee Supreme Court opinion in that case. The ACLU brief began, “The Union, having been intimately associated with Scopes v. Tennessee 40 years ago, when this issue first arose in the courts, looks forward to its final resolution in this case.” Allusions to the Scopes case ran through the oral arguments and media coverage as well.15
When the justices met to discuss the case two days after oral arguments, all except Hugo Black voted to strike the law. Based on personal experience, Fortas viewed the law as an unconstitutional establishment of religion and asked the court to overturn it on that basis. According to Fortas’s notes of that conference, however, most of his colleagues viewed the law as void for vagueness. “Act is too vague to stand,” Chief Justice Earl Warren reportedly observed. “State has shown no need for the Act. When they prohibit teaching a doctrine, they ought to show need in terms of public order or welfare, etc.” Bryan had offered such arguments long ago, as implausible as they might seem in the 1960s, but the Arkansas attorney general raised none of them. Justice William O. Douglas agreed with the chief, adding that “establishment of religion is not really in the case,” presumably because all prior establishment clause rulings involved governmental actions that had the primary effect of advancing religion. Here the statute had little impact, if any. Only Harlan gave it a current effect by saying that “the law is a threat,” while Black countered, “There’s no case or controversy here.” No one—not even Epperson’s counsel under close questioning by Black during oral argument—suggested that it actually advanced religion in Arkansas. Almost alone, Fortas argued to “reverse on establishment grounds,” and asked to write the Court’s opinion.16
In the resulting opinion, Fortas set the Court’s holding squarely in the context of the Scopes case, beginning and ending with references to it. He conceded that the Arkansas statute “is presently more a curiosity than a vital fact of life,” yet held that it violated the establishment clause due to its original purpose. “Its antecedent, Tennessee’s ‘monkey law,’ candidly stated its purpose,” he wrote, “to make it unlawful ‘to teach any theory that denies the story of Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals.’ Never mind that this language did not appear in the Arkansas statute, he adjudged, the Tennessee law was equally on trial now. To support his analysis of the statute’s historical purpose, Fortas cited the memoirs of Darrow and Scopes, a book by Richard Hofstadter, and a thirty-year-old pamphlet by the ACLU—all of which dealt with the Scopes trial rather than the
Arkansas statute. Religious purpose alone became the Court’s basis for striking the law.17
Largely as a result of the Epperson decision, having “a secular legislative purpose” became a separate test for establishment clause violations, reflecting Fortas’s conviction that the clause simply must cover the Scopes situation. “In my view,” the constitutional law expert Gerald Gunther later observed, “the controversy about the [Scopes] trial planted seeds of critical analysis of statutes like the Monkey Law—seeds which, decades later, bore fruit in the Supreme Court on different grounds.” In a more general observation, senior legal scholar Charles Alan Wright added, “Darrow made Bryan look so foolish, as we have seen in various dramatizations of the trial, that it made the whole creationist position look foolish and made it much harder for people to insist that only creationism be taught.”18
Summer for the Gods: The Scopes Trial and America's Continuing Debate Over Science and Religion Page 31
