Summer for the Gods: The Scopes Trial and America's Continuing Debate Over Science and Religion (43 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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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.
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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
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.
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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.
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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.
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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.”
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Justice Black could scarcely contain his frustration over the outcome of the Epperson case. In a sharply worded separate opinion, he restated his long-standing opposition to striking statutes on account of their supposed purpose. “It is simply too difficult to determine what those motives were,” Black wrote. Drawing on personal experience as an Alabama politician during the antievolution crusade, the 82-year-old justice suggested an alternative purpose for the Arkansas law. Rather than favoring religious creationism, he wrote in Bryanesque fashion, “It may be instead that the people’s motive was merely that it would be best to remove this controversial subject [of origins] from its schools.”
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In an apparent reply to Black, Fortas added to a later draft of his opinion the Darrowlike comment, “Arkansas’ law cannot be defended as an act of religious neutrality.... The law’s effort was confined to an attempt to blot out a particular theory because of its supposed conflict with the Biblical account, literally read.”
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Forty-three years after the Scopes trial, Black and Fortas here replayed one aspect of the debate between Bryan and Darrow—yet this time, the Darrow position clearly prevailed.
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In an apparent reply to Black, Fortas added to a later draft of his opinion the Darrowlike comment, “Arkansas’ law cannot be defended as an act of religious neutrality.... The law’s effort was confined to an attempt to blot out a particular theory because of its supposed conflict with the Biblical account, literally read.”
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Forty-three years after the Scopes trial, Black and Fortas here replayed one aspect of the debate between Bryan and Darrow—yet this time, the Darrow position clearly prevailed.
Certainly, the media played it as a long-overdue victory for Scopes. “Court Rules in a ‘Scopes Case’,” read the headline in one major national news magazine.
Time
led off with a reference to
Inherit the Wind. Life
mixed fact and fiction by reminding readers that the issue first “erupted in a glorious explosion in the tiny burg of Dayton, Tenn., where in 1925, as every student of American humor knows, Spencer Tracy gave Fredric March the verbal thrashing of his life.” A front-page article in the
New York Times
described the Epperson case as “the nation’s second ‘monkey trial’,” but declared that it “reached a strikingly different result” from the first one.
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Time
led off with a reference to
Inherit the Wind. Life
mixed fact and fiction by reminding readers that the issue first “erupted in a glorious explosion in the tiny burg of Dayton, Tenn., where in 1925, as every student of American humor knows, Spencer Tracy gave Fredric March the verbal thrashing of his life.” A front-page article in the
New York Times
described the Epperson case as “the nation’s second ‘monkey trial’,” but declared that it “reached a strikingly different result” from the first one.
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Even the seemingly decisive Epperson decision, however, failed to resolve the fundamental issues raised by the Scopes trial. This occurred in part because Fortas simplified those issues along lines suggested in the Scopes legend. In its effort to portray McCarthy-era intolerance,
Inherit the Wind
implied that antievolution laws left only biblical creationism in the classroom. Fortas carried this interpretation into the Epperson decision when he stressed that “Arkansas did not seek to excise from the curriculum of its schools and universities all discussion of the origin of man” but solely teaching about evolution. Some antievolution leaders of the 1920s might have liked to have only creationism taught, but Bryan publicly argued for the state to bar teaching evolution on the express assumption that public school teachers already could not present the biblical view.
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By thus casting his argument as one for neutrality in education on the controversial topic of human origins, Bryan was able to gain support for antievolution laws from non-fundamentalists.
Inherit the Wind
implied that antievolution laws left only biblical creationism in the classroom. Fortas carried this interpretation into the Epperson decision when he stressed that “Arkansas did not seek to excise from the curriculum of its schools and universities all discussion of the origin of man” but solely teaching about evolution. Some antievolution leaders of the 1920s might have liked to have only creationism taught, but Bryan publicly argued for the state to bar teaching evolution on the express assumption that public school teachers already could not present the biblical view.
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By thus casting his argument as one for neutrality in education on the controversial topic of human origins, Bryan was able to gain support for antievolution laws from non-fundamentalists.
Defense counsel at Dayton did not endorse the idea of teaching both evolution and creationism in science courses. Darrow consistently debunked fundamentalist beliefs and never supported their inclusion in the curriculum. Hays and the ACLU argued for academic freedom to teach Darwinism but most likely did not consider the possibility that some teachers might want to cover creationism. Malone came the closest of anyone at Dayton to endorsing a two-view approach to teaching origins when in his great plea for tolerance he declared, “For God’s sake let the children have their minds kept open—close no doors to their knowledge.” Yet this came shortly after he had shouted at prosecutors, “Keep your Bible in the world of theology where it belongs and do not try to ... put [it] into a course of science.”
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Addressing the relatively easy case of teaching only creationism as opposed to effectively ending classroom study of human origins, Fortas struck down the Arkansas antievolution law as “an attempt to blot out a particular theory from public education.”
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Addressing the relatively easy case of teaching only creationism as opposed to effectively ending classroom study of human origins, Fortas struck down the Arkansas antievolution law as “an attempt to blot out a particular theory from public education.”
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Fortas clearly intended to free public schools from restrictions against teaching evolution, but his written opinion backfired when certain fundamentalists misinterpreted it as an invitation to include creationist views in public education. “In
Epperson v. Arkansas
the Supreme Court overturned a law prohibiting instruction in evolution because its primary effect was unneutral,” a creationist legal strategist argued. “This unneutral primary effort [arose] ... from an unneutral prohibition on only evolution without a similar proscription on
Genesis.”
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Following such reasoning, some fundamentalists called for balancing instruction in evolution with creationist teaching as a supposedly constitutional alternative to excluding any one theory. Fortas may have thought that the earlier Supreme Court ruling barring religious instruction in public schools adequately covered this situation, but he did not anticipate the tenacity of fundamentalists who believed that scientific support existed for their creationist beliefs. Bills and resolutions mandating equal time or balanced treatment for creationism soon began appearing before state legislatures and local school boards throughout the nation. Proponents turned the Scopes legend to their benefit by widely quoting a fictitious statement attributed to Darrow at Dayton, “It is ‘bigotry for public schools to teach only one theory of origins.’ ”
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Epperson v. Arkansas
the Supreme Court overturned a law prohibiting instruction in evolution because its primary effect was unneutral,” a creationist legal strategist argued. “This unneutral primary effort [arose] ... from an unneutral prohibition on only evolution without a similar proscription on
Genesis.”
25
Following such reasoning, some fundamentalists called for balancing instruction in evolution with creationist teaching as a supposedly constitutional alternative to excluding any one theory. Fortas may have thought that the earlier Supreme Court ruling barring religious instruction in public schools adequately covered this situation, but he did not anticipate the tenacity of fundamentalists who believed that scientific support existed for their creationist beliefs. Bills and resolutions mandating equal time or balanced treatment for creationism soon began appearing before state legislatures and local school boards throughout the nation. Proponents turned the Scopes legend to their benefit by widely quoting a fictitious statement attributed to Darrow at Dayton, “It is ‘bigotry for public schools to teach only one theory of origins.’ ”
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Of course, the force of this movement sprang from the vast number of Americans who hold creationist views, and not from any encouragement given it by either the Epperson opinion or the Scopes legend. “Debate over the origin of man is as alive today as it was at the time of the famous Scopes trial in 1925,” pollster George Gallup reported, on the basis of a 1982 public opinion survey, “with the public now about evenly divided between those who believe in the biblical account of creation and those who believe in either a strict interpretation of evolution or an evolutionary process involving God.” This and other polls consistently found over 80 percent support for including creationist theories in the curriculum.
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On the strength of such sentiments, three states adopted laws mandating creationist instruction in public schools before the Supreme Court stepped in to stem the tide. In 1974, Tennessee mandated “an equal amount of emphasis” in biology textbooks for alternative theories of origins, expressly including the Genesis account. Seven years later, Arkansas and Louisiana enacted laws requiring “balanced treatment” in biology instruction for “creation-science”: the Arkansas act linked this so-called science to the study of a biblically inspired list of creation events, such as a worldwide flood, while the Louisiana statute defined it as “scientific evidence for creation and inferences from those scientific evidences.”
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These three laws fell in separate lawsuits, and the media compared each of them to the Scopes case.
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These three laws fell in separate lawsuits, and the media compared each of them to the Scopes case.
The Scopes legacy did more than merely influence media coverage of these cases; it shaped their very tone and timber. Drawn by the Scopes connection, the ACLU led the fight against all three statutes, with prominent New York counsel serving as their agents in the latter two cases. “It is a strange feeling,” the ACLU’s 97-year-old founding director Roger Baldwin commented upon passage of the Louisiana statute, “here’s where I came in [with Scopes], and here’s where the ACLU goes out to another battle to defend the same principles of freedom.”
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Challengers stressed the Scopes connection in all three lawsuits because it highlighted the religious purposes underlying the statutes and thereby provided a ready basis for striking them down. The first two statutes obviously violated establishment clause principles by expressly mandating public school instruction in biblical doctrines, and federal courts quickly disposed of them. The Louisiana statute simply called for teaching about scientific evidence for creation, however, and its defenders maintained that such teaching would not constitute religious instruction. Here, the Scopes legacy helped the challengers to prevail.
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Challengers stressed the Scopes connection in all three lawsuits because it highlighted the religious purposes underlying the statutes and thereby provided a ready basis for striking them down. The first two statutes obviously violated establishment clause principles by expressly mandating public school instruction in biblical doctrines, and federal courts quickly disposed of them. The Louisiana statute simply called for teaching about scientific evidence for creation, however, and its defenders maintained that such teaching would not constitute religious instruction. Here, the Scopes legacy helped the challengers to prevail.
“The case comes to us against a historical background that cannot be denied or ignored,” a federal appeals-court panel noted in its analysis of the Louisiana statute. “The Act continues the battle William Jennings Bryan carried to his grave. The Act’s intended effect is to discredit evolution by counterbalancing its teaching at every turn with the teaching of creationism, a religious belief. The statute therefore is a law respecting a particular religious belief ... and thus is unconstitutional.” A bare majority of the circuit’s fifteen judges affirmed this ruling on review, but seven dissented—and tried to turn the Scopes legacy inside out. “The
Scopes
court upheld William Jennings Bryan’s view that states could constitutionally forbid teaching the scientific evidence for the theory of evolution,” Judge Thomas Gibb Gee wrote for the dissenters. “By requiring that the whole truth be taught, Louisiana aligned itself with Darrow; striking down this requirement, the panel holding aligns us with Bryan.” Both sides thus claimed the moral high ground that was by then almost universally associated with the Scopes defense.
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Scopes
court upheld William Jennings Bryan’s view that states could constitutionally forbid teaching the scientific evidence for the theory of evolution,” Judge Thomas Gibb Gee wrote for the dissenters. “By requiring that the whole truth be taught, Louisiana aligned itself with Darrow; striking down this requirement, the panel holding aligns us with Bryan.” Both sides thus claimed the moral high ground that was by then almost universally associated with the Scopes defense.
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