Eighty-five years ago today, opening arguments began in the case of State of Tennessee v. John Thomas Scopes; or, as it was commonly called, the "Scopes Trial", or more colloquially and vividly, the "Monkey Trial".
The "monkey" in the Scopes case was the Theory of Evolution, pioneered by Charles Darwin some 75 years earlier, which proposed a descent of humankind from animal ancestors; since monkeys were among humanity's closer living relatives, the opponents of the Theory -- claiming a literal belief in the six-day creation of the world they saw described in the Biblical book of Genesis -- caricatured it by saying that it made humans out to be the descendants of monkeys, often playing on the secondary meaning of "monkey" as "fool", "dupe", or "buffoon".
The day was Monday, July 13th, 1925. The trial had opened the preceding Friday, July 10th, but had proceeded no further than the selection of a jury. For more background on the trial and its participants, see the preceding diary in this series here.
The argument of the first day: with regard to the Butler Act, a recently-adopted Tennessee law under the full title of
AN ACT prohibiting the teaching of the Evolution Theory in all the Universities, Normals and all other public schools of Tennessee, which are supported in whole or in part by the public school funds of the State, and to provide penalties for the violations thereof
holding that:
it shall be unlawful for any teacher in any of the Universities, Normals and all other public schools of the State which are supported in whole or in part by the public school funds of the State, to teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals
-- was such a law constitutional or not? If it were not constitutional, then obviously defendant John T. Scopes could not be convicted under it.
The speakers were John Randolph Neal, a former University of Tennessee law professor, and Arthur Garfield Hays, both speaking in the defense of Scopes; Benjamin G. McKenzie and Tom Stewart, attorneys general, and Mr. Sue K. Hicks, speaking for the prosecution; and finally Clarence Darrow, famous Chicago lawyer, speaking again for the defense.
The scene was the Rhea County Courthouse in Dayton, Tennessee, Judge John T. Raulston presiding. The weather, as through all the trial, was hot; this promoted an air of informality, as participants doffed coats and rolled up shirt-sleeves, or fanned themselves with palm-leaf fans. Large electric fans were set going in the courthouse, but it did little good.
Following an initial prayer (itself rather prejudicial to the defense), and a brief inquiry into the impartiality of a juror, the indictment, presented by Attorney-General Stewart, was read:
That John Thomas Scopes... unlawfully did wilfully teach in the public schools of Rhea county, Tennessee... a certain theory and theories that deny the story of the divine creation of man as taught in the Bible, and did teach instead thereof that man has descended from a lower order of animals... against the peace and dignity of the state.
Mr. Neal, for the defense, moved to quash the indictment on the basis that the Butler Act violated the constitution of Tennessee, on a great many grounds, some technical, relating to the manner in which the Act was passed, but others related to fundamental issues of freedom of speech and of religion. As this was not considered a matter for the jury by the court (the jury had not even been sworn and the defendant had not pled), the jury was temporarily dismissed; the arguments would for some time be held only in front of the judge.
Mr. Hays, continuing for the defense, took up the argument that the law was unconstitutionally vague and exceeded the power of the legislature. As an example of an unreasonable exercise of that power, he offered a potential law that would condemn to death any teacher who taught that the Earth revolved around the Sun, and suggested that such a law would be an unconstitutional restriction of individual liberty.
Attorney-General McKenzie, speaking for the prosecution, said that the statute was clear and comprehensible; and that as for the power of the legislature, it was not defined or restricted as Mr. Hays had suggested. Mr. Sue K. Hicks, another prosecution attorney, declared that under the law the State legislature had free rein to enact whatever administration of the schools it pleased. Mr. Hicks further denied that there was any abridgement of freedom of speech or religion, and that it was simply a matter of violating the state's educational regulations.
The court then adjourned for lunch (or "dinner", as Judge Raulston referred to it).
At 1:00 p.m., the court resumed, with Attorney-General Stewart speaking for the prosecution. Stewart first rebutted the defense's argument that the law was overbroad, referring to two different subjects: holding that there was no clash between the law's directives to (a) not deny Biblical creation and (b) not promote evolution. He then considered the obligation of the legislature to "cherish literature and science" set forth in the Tennessee constitution, and declared it non-binding on the legislature. These were issues that the defense probably did not think much of a case could be made on, and the prosecution dealt with them rather summarily.
Stewart then turned to the defense's claim that the act violated freedom of religion, as established by the Tennessee Constitution, in words somewhat different from the U.S. First Amendment:
That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their conscience, that no man can of right be compelled to attend, erect, or support any place of worship, that no human authority in no case whatever can control or interfere with the rights of conscience, that no preference shall ever be given by law to any religious establishment or mode of worship.
Stewart said that the Butler Act did not abridge these rights, since it did not stop people from worshipping as they chose, but merely regulated the educational system.
Clarence Darrow, speaking for the defense, interrupted at this point, drawing attention to the words that no preference shall ever be given by law to any religious establishment or mode of worship. According to Darrow, the Butler Act violated this part of the constitution by favoring the Bible -- as opposed to, say, the Koran.
Stewart professed an inability to follow this line of reasoning, claiming that:
the St. [sic!] James Version of the Bible is the recognized one in this section of the country. The laws of the land recognize the Bible; the laws of the land recognize the law of God and Christianity as a part of the common law.
And that, moreover, the act "could not turn [one's] religious point of view or his religious purpose." According to Stewart, "It is not a religious question." And responding to a pointed question from Dudley Field Malone, speaking for the defense: "Does not it prefer the Bible to the Koran?" Stewart responded "We are not living in a heathen country."
When Stewart managed to return to his argument, he expressed the view that the act was solely an exercise of the police powers of the State; that it did not infringe religious liberty, because it did not tell any Tennesseean what church he should attend or prevent him from reading his Bible or govern what could be preached in church (this is what Stewart's ideas of religious liberty extended to); and that therefore the Act had nothing to do with religion. And with regard to the defense's claim about freedom of speech, in like manner Stewart argued that freedom of speech only existed outside of schools, but that the State had complete liberty to govern speech within the schools.
Stewart then dealt at length with more technical objections from the defense, regarding the sufficiency of the indictment, and turned to the defense's contention that the act violated the Fourteenth Amendment. Stewart argued that because the act only referred to the public schools of Tennessee, funded by the State, it could not be held to infringe Fourteenth Amendment-guaranteed liberties; citing Leeper v. State of Tennessee to make the case that a legislature has well-nigh unlimited authority to regulate the public schools in any way it likes.
After a short recess, Mr. Darrow once again spoke for the defense. Darrow's long speech was a tour de force; he was, in effect, making his closing statement first. Of course he was not speaking for the jury, who were not there; he was less than fully concerned with convincing the judge; but the newspaper reporters, and the wiremen of the telegraph services were there, and in effect, he was speaking to the country and the world.
Darrow began by condemning Bryan (who had not as yet spoken), as responsible "for this foolish, mischievous, and wicked act." He was going to argue "as if it was a death struggle between two civilizations."
States, Darrow said, had a right to prescribe educational curricula, but only within reason; it could not, for instance, ban the teaching of arithmetic. Nor could it dismiss learning out of hand and teach only the Bible; that (said Darrow) would violate the Tennessee Constitution's guarantees of religious liberty. But constitutional guarantees, Darrow continued, requires the spirit of freedom; and
unless there is left enough of the spirit of freedom in the state of Tennessee, and in the United States, there is not a single line of any constitution that can withstand bigotry and ignorance when it seeks to destroy the rights of the individual; and bigotry and ignorance are ever active. Here we find today as brazen and as bold an attempt to destroy learning as was ever made in the Middle Ages; and the only difference is, we have not provided that they shall be burned at the stake. But there is time for that, Your Honor; we have to approach these things gradually.
Darrow then returned to the technical point of the disagreement between the caption and the content of the law. He pointed out that the caption purported to ban teaching "Evolution", but the law forbade "any theory that denies the story of the Divine Creation of man as taught in the Bible".
But, Darrow rejoined:
the State of Tennessee under an honest and fair interpretation of the constitution has no more right to teach the Bible as the divine book than that the Koran is one, or the book of Mormons [sic], or the book of Confucius, or the Buddha, or the Essays of Emerson, or any one of the 10,000 books to which human souls have gone for consolation in their troubles.
This was probably not a point of view which would appeal, or even occur, to Attorney-General Stewart.
As for the statute itself, "It is full of weird, strange, impossible and imaginary provisions." It might as well, Darrow opined, have been written in Chinese.
Does this statute state what you shall teach and what you shall not? Oh, no! Oh, no! Not at all. Does it say you cannot teach the earth is round, because Genesis says it is flat? No. Does it say you cannot teach that the earth is millions of ages old, because the account in Genesis makes it less that six thousand years old? Oh, no. It doesn't state that. If it did you could understand it.
Darrow now discussed the Bible, and the problems in referring to its doctrines as 'divine'. "It is not a work on evolution," he said. "It is not a work on astronomy." The writers of the Bible had essentially primitive notions of science, and believed that the Earth was the center of the universe. "I doubt if there is a person in Tennessee who does knot know better." He wasn't challenging the Bible as a source of hope and faith; but how could it be used to teach science?
Darrow now pointed out the existence of conflicting accounts of creation in the Bible, and how invoking the Bible in law made the law itself "uncertain and impossible". Even Christian sects did not agree on their interpretations. "Now my client must be familiar with the whole book, and must know all about all of these warring sects of Christians and know which of them is right and which wrong, in order that he will not commit crime."
Darrow went on to criticize the indictment for not actually stating, except in a vague and general way, what Scopes actually did to violate the law.
What did he teach? What was the horrible thing he taught that was in conflict with Moses and what is it that is not in conflict with Moses? What shouldn't he have taught? What is the account contained in the Bible which he ignored, when he taught the doctrine of evolution which is taught by every -- believed by every scientific man on earth.
Joshua made the sun stand still. The fundamentalists will make the ages roll back.
Darrow now discussed the Leeper case, comparing the specificity of its indictment with the vagueness of the indictment in Scopes. He also discussed the "cherish science" directive in the Tennessee constitution, and admitted that it was too slender a thread on which to throw the statute out.
He returned, then, to the topic of freedom of religion.
Has the Mohammedan any right to stay here and cherish his creed? Has the Buddhist a right to live here and cherish his creed? Can the Chinaman who comes here to wash our clothes, can he bring his joss and worship it? Is there any man that holds a religious creed, no matter where he came from, or how old it is or how false it is, is there any man that can be prohibited by any act of the legislature of Tennessee?
According to Darrow, Tennessee's religious freedom provision, taken from Virginia's as written by Thomas Jefferson, guarantees all men those freedoms.
Can a legislative body say, "You cannot read a book or take a lesson, or make a talk on science until you first find out whether you are saying against Genesis"? It can unless that constitutional provision protects me. It can.
Can it say to the astronomer, you cannot turn your telescope upon the infinite planets and suns and stars that fill space, lest you find that the earth is not the center of the universe and there is not any firmament between us and the heaven. Can it? It could -- except for the work of Thomas Jefferson, which has been woven into every state constitution of the Union, and has stayed there like the flaming sword to protect the rights of man against ignorance and bigotry, and when it is permitted to overwhelm them, then we are taken in a sea of blood and ruin that all the miseries and tortures and carrion of the middle ages would be as nothing.
The requirements of religious freedom, Darrow said, prohibit a preference to a religious establishment, but the Butler Act does just that -- it gives a preference to a sectarian version of religion.
And along comes somebody who says we have got to believe it as I believe it. It is a crime to know more than I know. And they publish a law to inhibit learning. [...] Every bit of knowledge that the mind has, must be submitted to a religious test. [...] Here is a country made up of Englishmen, Irishmen, Scotch, German, Europeans, Asiatics, Africans, men of every sort and men of every creed and men of every scientific belief; who is going to begin this sorting out and say, "I shall measure you; I know you are a fool, or worse; I know and I have read a creed telling what I know and I will make people go to Heaven even if they don't want to go with me, I will make them do it." Where is the man that is wise enough to do it?
Darrow went on to consider the position of the law under the police power of the state. It was not, he said, an amendment to the school regulations, but a criminal statute; and such a crimial statute, which could only be applied to schoolteachers and no one else, was an unconstitutional under a requirement for uniform effect of the laws, so that they do not apply to one group of people and not others. The State, Darrow said, could prescribe a course of study, but it could not arbitrarily select one group (like public schoolteachers) to make them vulnerable to criminal prosecution.
Judge Raulston now indicated that it was time for the court to adjourn; Darrow begged a few more minutes, and continued:
If today you can take a thing like evolution and make it a crime to teach it in the public school, tomorrow you can make it a crime to teach it in the private schools, and the next year you can make it a crime to teach it to the hustings or in the church. At the next session you may ban books and the newspapers. Soon you may set Catholic against Protestant, and Protestant against Protestant, and try to foist your own religion upon the minds of men. If you can do the one you can do the other. Ignorance and fanaticism is ever busy and needs feeding. Always it is feeding and gloating for more. Today it is the public school teachers, tomorrow the private. The next day the preachers and the lecturers, the magazines, the books, the newspapers. After a while, Your Honor, it is the setting of man against man and creed against creed, until with flying banners and beating drums we are marching backward to the glorious ages of the sixteenth century when bigots lighted fagots to burn the men who dared to bring any intelligence and enlightenment and culture to the human mind.
And with that the court adjourned for the day, to reconvene at 9:00 a.m. on Tuesday.