Summer for the Gods: The Scopes Trial and America's Continuing Debate Over Science and Religion (35 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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From the moment that he objected to courtroom prayer, a noisy segment of those opposed to antievolutionism blamed Darrow for the failure of the Scopes defense to stem the tide of fundamentalism—crit—icism that only increased after Bryan’s death. Their reasoning reflected their own religious viewpoint. Some secular critics of the Tennessee law defended Darrow, but the Chicago agnostic was as much a pariah to religious modernists and mainline Christians as he was to fundamentalists. “Now that the chuckling and giggling over the heckling of Bryan by Darrow has subsided it is dawning upon the friends of evolution that science was rendered a wretched service by that exhibition,” Walter Lippmann wrote for the
New York World.
“The truth is that when Mr. Darrow in his anxiety to humiliate and ridicule Mr. Bryan resorted to sneering and scoffing at the Bible he convinced millions who act on superficial impressions that Bryan is right in his assertion that the contest at Dayton was for and against the Christian religion.” Speaking from the region most directly affected, the New Orleans
Times-Picayune
commented, “Mr. Darrow, with his sneering, ‘I object to prayer!’ and with his ill-natured and arrogant cross-examination of Bryan on the witness stand, has done more to stimulate ‘anti-evolution’ legislation in the United States than Mr. Bryan and his fellow literalists, left alone, could have hoped for.”
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New York World.
“The truth is that when Mr. Darrow in his anxiety to humiliate and ridicule Mr. Bryan resorted to sneering and scoffing at the Bible he convinced millions who act on superficial impressions that Bryan is right in his assertion that the contest at Dayton was for and against the Christian religion.” Speaking from the region most directly affected, the New Orleans
Times-Picayune
commented, “Mr. Darrow, with his sneering, ‘I object to prayer!’ and with his ill-natured and arrogant cross-examination of Bryan on the witness stand, has done more to stimulate ‘anti-evolution’ legislation in the United States than Mr. Bryan and his fellow literalists, left alone, could have hoped for.”
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A varied array of Christians complained of Darrow’s role in the case. “Some of us regret that in the unique Scopes trial, on which so much popular education depends, we should not have, for the trial, lawyers who understand the point of view of the ordinary, thoroughly educated Christian,” a mainline church journal commented. A Congregational Church official offered his observations in a letter sent to the ACLU: “May I express the earnest opinion that not five percent of the ministers in this liberal denomination have any sympathy with Mr. Darrow’s conduct of the case?” From Nashville, the Vanderbilt University humanist Edwin Mims complained, “When Clarence Darrow is put forth as the champion of the forces of enlightenment to fight the battle for scientific knowledge, one feels almost persuaded to become a Fundamentalist.” The gravity of the issue was underscored for ACLU officials in September, when Raymond B. Fosdick—attorney for the Rockefellers and the brother of Harry Emerson Fosdick—curtly rejected an invitation to join their Scopes defense fund committee with the rebuke, “Largely through the choice of counsel a great opportunity was lost to place the case on a plane where the tremendous issue between tolerance and intolerance could be clearly seen.” Roger Baldwin wrote back to Fosdick, “I guess we here all feel as you do about the handling of it. What we are trying to do now is to get the issue clear on the appeal.”
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As Baldwin’s letter to Fosdick suggests, ACLU officials in New York already had turned their attention to the appellate phase of the case. Once again they maneuvered to exclude Darrow from the defense team. The ACLU’s executive committee hatched its plan in early August: ease out Darrow by urging more “priority” for Tennessee counsel. Associate Director Forrest Bailey, who oversaw the Scopes case for the ACLU, wrote to John Neal, “All of us feel that when the case goes to the Supreme Court of the State, there ought to be more of Neal and less of Darrow. This is the stand we are taking in response to the many urgent suggestions that Darrow ought to disappear from this point on.” Hays dissented from this position, Bailey noted, “but I hope you see the other angle of the thing as we do.” Apparently he did. Rappleyea soon reported to the ACLU about a meeting with Neal in which the two agreed that Darrow should not appear before the state supreme court. Otherwise, Rappleyea explained, “It will not be our cause on trial, but it will be a case of the State of Tennessee vs. Clarence Darrow, the man who spiritually and literally crucified Bryan on the cross examination.”
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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 .
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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 .
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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.
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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.
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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.
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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.
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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.”
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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.
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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.”
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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.”
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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.
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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.
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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.”
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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.
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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.
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Peay made an exception for the younger Bryan, largely out of sympathy, but the state later proved reluctant to reimburse his expenses.
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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.
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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.
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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.
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