Eighty-five years ago this month, during another long, hot summer, Clarence Darrow and Dudley Field Malone, two of America’s foremost civil-libertarian lawyers, defended John Scopes, the high school football coach tried in Dayton, Tennessee, for teaching evolution, in violation of the Butler Act. The Tennessee statute, which had been enacted four months earlier, prohibited teaching any theory that denied the Biblical account of creation.

Darrow (left) and Bryan during Scopes’ trial in the Rhea County courthouse

Other members of the defense team included American Civil Liberties Union attorney Arthur Garfield Hays and former University of Tennessee law professor John R. Neal.

Scopes’ prosecutors included future U.S. senator Tom Stewart; Sue Hicks, a close friend of Scopes and the inspiration for the Johnny Cash hit “A Boy Named Sue”; and three-time presidential candidate William Jennings Bryan, who had not tried a case in 36 years.

The case against Scopes was manufactured by Hicks and friends, with the support of the ACLU. The conspirators hoped to take the case to the U.S. Supreme Court where they expected the Butler Act to be declared unconstitutional.

While Scopes had taught biology as a substitute teacher, he admitted later to a reporter that he had actually never taught evolution. Nonetheless, he was a willing participant for the prosecutors’ ploy. He talked his students into testifying against him at trial, and he was not called as a witness in his own defense.

Darrow (standing) questioning Bryan on the 7th day of trial on the courthouse lawn

The trial lasted for eight blistering days in July, 1925, one of the hottest months on record. On the seventh day, the courtroom was so unbearable the judge moved the trial to the courthouse lawn, allowing the huge gallery to be more comfortable while Darrow cross-examined Bryan on the historicity of the Bible. After listening for a couple of hours to the two lions clash, the judge adjourned the trial for the day, declaring that the entire exchange had been irrelevant and would be expunged from the record.

The following day, after the judge denied further defense testimony, Darrow announced to the court that since he had not been allowed to present the necessary evidence to prove his case, the jury had no choice but to find his client guilty. The jury concurred.

Darrow had also waived his right to present a closing argument to the jury, largely to prevent Bryan from making his own closing. Bryan later said that his 15,000 word closing, which he dictated to his secretary after the trial was over, was “the mountain peak of my life’s effort.”

Although Bryan had won the case, much of the popular sentiment was that Darrow had “made a monkey out of him” during the trial. The following Sunday, after attending church in Dayton and having dinner with his wife, Bryan died in his sleep. His physician concluded that Bryan had died of heart failure, complicated by diabetes mellitus, “the immediate cause being the fatigue incident to the heat and his extraordinary exertions due to the Scopes trial.” He was 65.

Scopes’ defense team appealed, and the Tennessee Supreme Court, as expected, upheld the constitutionality of the Butler Act but unexpectedly overturned Scopes’ conviction on a technicality. More significantly, however, the court recognized that the case truly was a “Monkey Trial”—as H.L. Menchen, reporting for the Baltimore Sun, had described it—and admonished the prosecution not to pursue it: “We see nothing to be gained by prolonging the life of this bizarre case.”

The attorney general agreed and refused to retry Scopes. Without a case to pursue, the defense had nothing to appeal to the U.S. Supreme Court, and the Butler Act remained on the books until the Tennessee legislature finally repealed it in 1967.

Scopes Festival, July 16-17

One Hot Summer, a new play about the evolution of the Scopes trial, will highlight the 23rd annual Scopes Festival on July 16 and 17, in Dayton, Tennessee, this year. The trial was originally expected to be a promotional event that would “put Dayton on the map,” and the festival continues that tradition. The play will be presented in the old courtroom of the Rhea County Courthouse on Friday at 8 p.m. and on Saturday at 3 and 8 p.m. Call 423-775-0361 for details.

Dennis McCarthy

Dennis McCarthy

Dennis McCarthy retired from the University of Tennessee, Knoxville, and moved to Santa Fe, NM, with his wife, Judy.

One Comment
  1. People are upset because the Obama DoJ is probably going to appeal the Defense of Marriage Act ruling by a circuit judge. Lots of people, including some of the members of the Senate Judiciary Committee, who were upset by Justice Sotomayor’ s effort to explain the role of courts of appeal in “setting” policy, aren’t fully aware of how our judicial system depends on cases and people willing to go to trial.
    Of course, lots of people don’t think much about concrete setting either. :)

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