Summer for the Gods: The Scopes Trial and America's Continuing Debate Over Science and Religion (18 page)
Authors: Edward J. Larson
BOOK: Summer for the Gods: The Scopes Trial and America's Continuing Debate Over Science and Religion
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Caught off guard by the public offer from Darrow and Malone to Neal, the ACLU never regained control of events. The impulsive and independent-minded John Neal further complicated matters by publicly accepting the offer on Scopes’s behalf without consulting the ACLU. To counter Bryan, the ACLU had two former presidential nominees in mind as alternative choices to lead the defense, the Democrat John W. Davis and the Republican Charles Evans Hughes, but neither would serve on a team that Darrow would inevitably dominate. “Even after the selection was made by Scopes, we did the best we could to undo it,” ACLU Associate Director Forrest Bailey later explained in a confidential letter to
New York World
editor Walter Lippmann. “We actually had Darrow and Malone right here in our office in an effort to persuade them they did not belong. But here is where another element entered into the scheme of things which we could not control.” Without informing the ACLU, Rappleyea asked former Secretary of State Bainbridge Colby to join the defense team. The sometimes erratic Colby, who had jumped back and forth between political parties and was considering a run for the 1928 Democratic presidential nomination, initially agreed to serve with Darrow and Malone. Now, to get Colby, who ACLU leaders found acceptable, they had to retain the others. “Time was pressing and no other respectable eminent counsel was agreeable,” Bailey concluded in his letter to Lippmann.
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New York World
editor Walter Lippmann. “We actually had Darrow and Malone right here in our office in an effort to persuade them they did not belong. But here is where another element entered into the scheme of things which we could not control.” Without informing the ACLU, Rappleyea asked former Secretary of State Bainbridge Colby to join the defense team. The sometimes erratic Colby, who had jumped back and forth between political parties and was considering a run for the 1928 Democratic presidential nomination, initially agreed to serve with Darrow and Malone. Now, to get Colby, who ACLU leaders found acceptable, they had to retain the others. “Time was pressing and no other respectable eminent counsel was agreeable,” Bailey concluded in his letter to Lippmann.
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The ACLU made one more attempt to displace Darrow. It occurred in early June, when Scopes, Neal, and Rappleyea went to New York to confer with the ACLU and meet the press. Felix Frankfurter came down from Harvard Law School for the strategy meetings and, with Bailey and ACLU executive director Roger Baldwin, tried to talk Scopes into choosing other counsel. Three New York lawyers with close ties to the ACLU, Arthur Garfield Hays, Samuel Rosensohm, and Walter Nells, also participated in these closed-door meetings—with only Hays backing Darrow.
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“The arguments against Darrow were various,” Scopes later wrote, “that he was too radical, that he was a headline hunter, that the trial would become a circus.” But Malone also had a chance to lobby Scopes in New York, and the defendant stuck by Darrow. Facing a criminal prosecution, Scopes wanted an experienced defense lawyer rather than a dignified constitutional attorney. “It was going to be a down-in-the-mud fight,” he recalled, “and I felt that situation demanded an Indian fighter rather than someone who graduated from the proper military academy.”
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“The arguments against Darrow were various,” Scopes later wrote, “that he was too radical, that he was a headline hunter, that the trial would become a circus.” But Malone also had a chance to lobby Scopes in New York, and the defendant stuck by Darrow. Facing a criminal prosecution, Scopes wanted an experienced defense lawyer rather than a dignified constitutional attorney. “It was going to be a down-in-the-mud fight,” he recalled, “and I felt that situation demanded an Indian fighter rather than someone who graduated from the proper military academy.”
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Darrow had the right experience and reputation for the job. “[We] adjusted ourselves as gracefully as we could to the presence of Darrow among counsel,” Bailey later wrote on behalf of ACLU leaders, but they never liked the idea.
43
Baldwin pointedly refused to participate further and thereby missed his organization’s most famous trial. More than a year later, ACLU Counsel Wollcott H. Pitkin confided to Frankfurter, “In my belief, a great mistake had been made at the start in accepting the services of Mr. Darrow, thereby allowing fundamentalists to present the issue as a clash between religion (represented by themselves) and anti-religion” represented by Darrow.
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Everyone smiled for the press at the end of the New York meetings, however, when Neal announced a defense team consisting of Darrow, Colby, Rosensohm, Malone, and himself. Colby later dropped out, and Hays replaced Rosensohm as the sole ACLU representative in Dayton. Darrow had stolen the leading role.
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Baldwin pointedly refused to participate further and thereby missed his organization’s most famous trial. More than a year later, ACLU Counsel Wollcott H. Pitkin confided to Frankfurter, “In my belief, a great mistake had been made at the start in accepting the services of Mr. Darrow, thereby allowing fundamentalists to present the issue as a clash between religion (represented by themselves) and anti-religion” represented by Darrow.
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Everyone smiled for the press at the end of the New York meetings, however, when Neal announced a defense team consisting of Darrow, Colby, Rosensohm, Malone, and himself. Colby later dropped out, and Hays replaced Rosensohm as the sole ACLU representative in Dayton. Darrow had stolen the leading role.
Despite naming Malone to the defense team, ACLU leaders hoped that he would remain in New York during the trial. Neal’s announcement suggested as much by stating, “Mr. Malone has generously offered to take any assignment in the case.” Apparently relying on comments by Bailey and Frankfurter—both publicly took this position—the
New York Times
reported, “It is said that Mr. Rosensohm and Mr. Malone would probably have charge of looking up references.” It was dangerous enough sending a professed agnostic to Dayton, Frankfurter reasoned, but it was too much to add a divorced Irish Catholic. At least Darrow had a folksy manner. Malone was a pompous city slicker. “I will not be the goat,” Malone shot back in a widely publicized statement. “I am accustomed to letting my clerks look up references for me.” Again the ACLU backed down, in what the
Chattanooga Times
described as “another victory for those who want to introduce a dramatic setting into the case, the ‘jazz’ factor, as it were.”
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New York Times
reported, “It is said that Mr. Rosensohm and Mr. Malone would probably have charge of looking up references.” It was dangerous enough sending a professed agnostic to Dayton, Frankfurter reasoned, but it was too much to add a divorced Irish Catholic. At least Darrow had a folksy manner. Malone was a pompous city slicker. “I will not be the goat,” Malone shot back in a widely publicized statement. “I am accustomed to letting my clerks look up references for me.” Again the ACLU backed down, in what the
Chattanooga Times
described as “another victory for those who want to introduce a dramatic setting into the case, the ‘jazz’ factor, as it were.”
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Darrow set the tone for the case almost immediately. One day after Neal accepted his offer of help, the Chicago attorney redoubled his efforts to put Bryan on the defensive. “Nero tried to kill Christianity with persecution and law. Bryan would block enlightenment with law,” he declared to the press. “Had Mr. Bryan’s ideas of what a man may do towards free thinking existed throughout history, we would still be hanging and burning witches and punishing persons who thought the earth was round.”
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If Darrow had his way, Bryan would replace Scopes in the role of the accused. It was a simple theme and one Darrow kept reiterating until he hounded his target into the witness chair at Dayton. The Great Commoner—the self-proclaimed voice of majority rule and religiously motivated progressive reform—would personify the threat to individual liberty in America. Darrow characteristically presented this threat as emanating from religious bigotry, making antievolution laws appear particularly ominous, whereas the ACLU previously had encountered such a threat principally from superpatriotism during the war and cutthroat capitalism thereafter, Bryan having stood for freedom in both instances. Thus, many ACLU supporters questioned the substance of Darrow’s attack on Bryan and religion, as well as its strategic effect.
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If Darrow had his way, Bryan would replace Scopes in the role of the accused. It was a simple theme and one Darrow kept reiterating until he hounded his target into the witness chair at Dayton. The Great Commoner—the self-proclaimed voice of majority rule and religiously motivated progressive reform—would personify the threat to individual liberty in America. Darrow characteristically presented this threat as emanating from religious bigotry, making antievolution laws appear particularly ominous, whereas the ACLU previously had encountered such a threat principally from superpatriotism during the war and cutthroat capitalism thereafter, Bryan having stood for freedom in both instances. Thus, many ACLU supporters questioned the substance of Darrow’s attack on Bryan and religion, as well as its strategic effect.
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After thirty-five years in partisan politics, Bryan could defend himself in a public debate. He brushed aside Darrow’s initial personal attacks with sharp remarks of his own. “Darrow is an atheist, I’m an upholder of Christianity. That’s the difference between us,” Bryan observed during his next press conference. “I never attempt to answer atheists, or those who argue for the sake of arguing, so will make no reply to Mr. Darrow’s attack.” He did, however, seek to refocus the debate squarely onto his terra firma of majority rule. “The real issue is not
what
can be taught in public schools, but
who
shall control the education system,” the Commoner asserted. “If the people are not to control the schools, who shall control them? Only two other kinds of control have been suggested:” by scientists or by individual teachers. He dismissed the former as undemocratic and the latter as unrealistic. “The absurdity of this [latter] suggestion becomes apparent when the liberty is employed to teach anything that the taxpayers really object to,” Bryan explained, such as anti-American or antireligious slander. Teaching evolution apparently fit into the second category. Darrow later claimed that Bryan shifted his focus to the issue of majority rule only after it became apparent that the defense would win any courtroom contest over evolution, but at the outset the Commoner predicted, “The case may be determined without any discussion whatsoever of the merit of evolution.”
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what
can be taught in public schools, but
who
shall control the education system,” the Commoner asserted. “If the people are not to control the schools, who shall control them? Only two other kinds of control have been suggested:” by scientists or by individual teachers. He dismissed the former as undemocratic and the latter as unrealistic. “The absurdity of this [latter] suggestion becomes apparent when the liberty is employed to teach anything that the taxpayers really object to,” Bryan explained, such as anti-American or antireligious slander. Teaching evolution apparently fit into the second category. Darrow later claimed that Bryan shifted his focus to the issue of majority rule only after it became apparent that the defense would win any courtroom contest over evolution, but at the outset the Commoner predicted, “The case may be determined without any discussion whatsoever of the merit of evolution.”
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Although Bryan took advantage of the widespread interest aroused by the upcoming trial to lecture and write about the scientific and moral failings of Darwinism, he never said that he would raise these issues at the trial itself. Having established them through the legislature, he had little to gain by litigating them in court simply to uphold the legislation. “The disgrace is not the Tennessee law,” Bryan declared in a typical pretrial speech, “the disgrace is that teachers ... should betray the trust imposed on them by the taxpayers” by violating the law. Arguing for popular control over public education gave Bryan the legal and logical upper hand in the Scopes case, and he held firmly to that position until he had all but grasped victory. Even the otherwise hostile
New York Times
agreed with him on this narrow point. When Bryan promised “a battle royal between the Christian people of Tennessee and the so-called scientists,” it was over which of them should control Tennessee public education, not the truth of evolution per se. “It would be ridiculous to entrust the education of children to an oligarchy of scientists,” he maintained.
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At the time, Darrow would have great difficulty challenging this position in either a court of law or the court of popular opinion.
New York Times
agreed with him on this narrow point. When Bryan promised “a battle royal between the Christian people of Tennessee and the so-called scientists,” it was over which of them should control Tennessee public education, not the truth of evolution per se. “It would be ridiculous to entrust the education of children to an oligarchy of scientists,” he maintained.
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At the time, Darrow would have great difficulty challenging this position in either a court of law or the court of popular opinion.
With an all-star cast assembling, Daytonians pressed forward with their preparations for the trial. Newspapers estimated that up to 30,000 visitors would descend on Dayton for the confrontation between Bryan and Darrow. Although the press gave no basis for this figure, which overestimated the actual crowd by a factor of ten, townspeople planned accordingly. Town officials asked the Southern Railway to schedule extra passenger trains to and from Chattanooga on the days of trial. They requested that the Pullman Company park sleeping and dining cars on nearby rail sidings to accommodate the added numbers. They even petitioned the governor to call up the state militia to control the expected crowds, but had to settle for hiring six extra policemen from Chattanooga for this task.
Townspeople embraced the unfolding affair. “Previous to the consciousness that Dayton was gaining notoriety through Scopes, Rappleyea et al. there was a lot of bickering and dispute”—including assaults on some trial proponents, one journalist reported from Dayton, three days after Bryan and Darrow volunteered to participate. “But now that the trial has been put into the advertising class, monkey has become the most popular word in Dayton’s vocabulary.” Main Street merchants decorated their shops with pictures of apes and monkeys. One billboard featured a long-tailed primate holding a bottle of patent medicine; another pictured a chimpanzee drinking a soda. The constable’s motorcycle carried a sign reading “Monkeyville Police,” while a delivery van bore the words “Monkeyville Express.” Merchants toned down their displays after the Progressive Dayton Club passed a resolution “condemning the frivolous attitude being taken toward the evolution case by certain elements of the Dayton population,” but the fountain at Robinson’s drugstore still offered “simian” sodas and stray monkeys continued to appear in shops around town. At the same time, however, the club voted to raise a $5,000 advertising fund to promote business development during the trial. “Since Dayton had found her way into the headlines all over the country,” one club member commented, “I can not see why Dayton should not reap the benefits.”
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Darrow’s entry into the case aroused some local protests, however. Countless Americans never forgave Darrow for his role in the Leopold-Loeb trial. “The fact that [this] and others of his cases were personal victories for himself does not by any means connote that they were also victories for the majesty and efficacy of the law,” the Memphis
Commercial Appeal
had commented earlier.
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Others distrusted Darrow due to his militant agnosticism; Malone was less well known, but rumored to be a Socialist. A group of prominent Daytonians asked Neal to decline aid from Darrow and Malone. Scopes’s original attorney, John Godsey, agreed with this position and soon bowed out of the case. Even Rappleyea, who hoped that the trial would promote a modernist Christian view of evolution rather than a materialistic one, did not want Darrow. “Dr. Neal accepted Darrow’s help in the case,” he told the press, “I wish he had not.” After asking numerous Daytonians about the matter, however, a
Chattanooga Times
reporter concluded that “the big majority look at this feature of the case as purely professional, and are ready to congratulate Judge Neal that he has succeeded in adding enormously to the advertising value of the trial by securing these two men of international reputation.” Scopes clearly agreed, telling the press at the height of the controversy, “I would certainly be an imbecile not to accept them.”
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Commercial Appeal
had commented earlier.
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Others distrusted Darrow due to his militant agnosticism; Malone was less well known, but rumored to be a Socialist. A group of prominent Daytonians asked Neal to decline aid from Darrow and Malone. Scopes’s original attorney, John Godsey, agreed with this position and soon bowed out of the case. Even Rappleyea, who hoped that the trial would promote a modernist Christian view of evolution rather than a materialistic one, did not want Darrow. “Dr. Neal accepted Darrow’s help in the case,” he told the press, “I wish he had not.” After asking numerous Daytonians about the matter, however, a
Chattanooga Times
reporter concluded that “the big majority look at this feature of the case as purely professional, and are ready to congratulate Judge Neal that he has succeeded in adding enormously to the advertising value of the trial by securing these two men of international reputation.” Scopes clearly agreed, telling the press at the height of the controversy, “I would certainly be an imbecile not to accept them.”
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Neal stuck by Darrow for the time being, but differences in their approach to the trial surfaced almost immediately, and each later conspired to remove the other from the case. Whereas Darrow approached it as the culmination of his lifelong struggle against religious intolerance, Neal viewed it as a chance to relitigate his dismissal from the University of Tennessee faculty. “The question is not whether evolution is true or untrue,” Neal observed at the outset, “but involves the freedom of teaching, or more important, the freedom of learning.”
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This widely reported comment seemed to unleash a flood of letters and comments to Neal about the theory of evolution and its relationship to religion. “Even the Negro waiters in restaurants and the hotel bell-hops want to give me their views on evolution,” he soon complained to the press in a comment that betrayed a consciousness of status consistent with his references to Scopes as “boy.”
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Nevertheless, Neal maintained his focus on academic freedom. Losing all sense of perspective on this topic, he asserted just before trial, “Scopes’ case involves the most vital issue—human freedom—that has ever risen in America, transcending the fundamentals underlying the Civil War.”
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This widely reported comment seemed to unleash a flood of letters and comments to Neal about the theory of evolution and its relationship to religion. “Even the Negro waiters in restaurants and the hotel bell-hops want to give me their views on evolution,” he soon complained to the press in a comment that betrayed a consciousness of status consistent with his references to Scopes as “boy.”
54
Nevertheless, Neal maintained his focus on academic freedom. Losing all sense of perspective on this topic, he asserted just before trial, “Scopes’ case involves the most vital issue—human freedom—that has ever risen in America, transcending the fundamentals underlying the Civil War.”
55
Neal discussed his legal strategy with the press on the eve of the special grand jury proceeding against Scopes. “The fight will continue along the lines I have outlined,” he stated, “namely, the lack of power upon the part of the legislature to limit the inquiry of the truth in our high schools and universities.” Neal made a bow to those pressing him to defend the theory of evolution by adding, “While, as I have stated most emphatically, this is not a question of the truth or falsity of the Darwin theory, we think it advisable that the judge and jury, in order to secure a proper understanding of the law, should be enlightened in regard to the doctrine of evolution.” Godsey elaborated on this point by noting, “Our idea of evolution is that it is absolutely compatible and consistent with the story of creation in the Bible.”
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If so, the defense reasoned, teaching evolution would not violate the statute. Of course, this did not correspond with Darrow’s materialistic view of evolution—and the coherence of the defense case suffered accordingly. Neal and the ACLU would fight primarily for academic freedom and secondarily for a broader understanding of evolution and religion, themes that overlapped but never fully coincided with Darrow’s agenda. For his part, Scopes declined to give further interviews to the press, thereafter making only brief public appearances in controlled settings.
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If so, the defense reasoned, teaching evolution would not violate the statute. Of course, this did not correspond with Darrow’s materialistic view of evolution—and the coherence of the defense case suffered accordingly. Neal and the ACLU would fight primarily for academic freedom and secondarily for a broader understanding of evolution and religion, themes that overlapped but never fully coincided with Darrow’s agenda. For his part, Scopes declined to give further interviews to the press, thereafter making only brief public appearances in controlled settings.
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