Summer for the Gods: The Scopes Trial and America's Continuing Debate Over Science and Religion (36 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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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.
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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.”
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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.”
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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.”
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In this brief, the state sounded more like Billy Sunday than Bill Bryan.
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.”
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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.
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Fulfilling his now titular role as chief counsel for Scopes, Neal rose first to introduce the case. It soon became 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.
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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.”
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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.
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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.”
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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.”
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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.”
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The scene was set for the dramatic close.
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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.”
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