This week I will review some aspects of the famous 1925 Scopes trial that lasted from July 10 through Tuesday, July 21. It has cast such a long shadow, and has reverberated so much in public consciousness, that it is worthwhile to have a quick summary of the actual events of that trial, in order to separate the facts from the folklore that has arisen around it as a result of the hugely popular play and film Inherit the Wind, the former produced in 1955 and the latter in 1960.

The trial itself was brief, lasting just eight days, much of it involving wrangling over legal technicalities that took place with the jury out of the courtroom. It involved the question of whether John T, Scopes had violated the Butler Act passed by Tennessee in March of 1925 that said 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.” There were only two occasions when the two famous attorneys William Jennings Bryan and Clarence Darrow were able to make speeches and these occurred in the middle of the trial during legal skirmishes.

What follows is an extract from my book God vs. Darwin: The War Between Evolution and Creationism in the Classroom that reviewed the 80-year legal fight by religious groups to combat the teaching of the theory of evolution in public schools, that began with the Scopes trial and ended with the Intelligent Design trial in Dover, PA in 2005.

Day 1, Friday, July 10: The morning saw the grand jury and witnesses appear to issue a new indictment, since the older one was discovered to have had a technical flaw. Scopes had to tell a reluctant student that he would be doing him a favor by testifying against him, and then was duly indicted again. After lunch, jury selection took place.

Day 2, Monday, July 13: The defense moved to quash the indictment on the grounds that it violated, among other things, the Tennessee state constitution on individual freedom of speech and religion. The defense expected this to be overruled (and it was) but needed to file the motion in order to use these grounds to appeal to the higher courts later. The defense also argued that the theory of evolution was as well established as the Copernican theory and thus forbidding teaching it was an unreasonable action by the state. The prosecution countered with the majoritarian view that the state had the right to prohibit the teaching of any subject at all.

Then Clarence Darrow rose to give what some say was the best speech of his long career. He pointed out that Tennessee had been teaching about evolution for years with no problem until people like Bryan came along and tried to use the Bible to determine what should or should not be taught. He said the new law made “the Bible the yard stick to measure every man’s intellect, to measure every man’s intelligence, and to measure every man’s learning…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 Mormon, or the book of Confucius, or the Buddha, or the Essays of Emerson…There is nothing else, your Honor, that has caused the difference of opinion, of bitterness, or hatred, of war, of cruelty, that religion has caused.” His statement provided a rousing finish to the day.

Day 3, Tuesday, July 14: This day saw some legal wrangling over the propriety of having opening prayers at such a trial and an investigation by the judge over the source of some leaks of his anticipated ruling on whether to quash the indictment and dismiss the charges. It turned out that it was the judge himself who was inadvertently responsible for the leak.

Day 4, Wednesday, July 15: The judge, as expected, rejected the motion to quash the indictment and the trial proper got under way. The prosecution’s opening statement consisted of just two sentences, merely saying that they would show that Scopes had violated the law by teaching that “mankind is descended from lower animals” and that therefore “he has taught a theory which denies the divine creation of man as taught in the Bible.”

The defense said in its opening statement that “We will show by the testimony of men learned in science and theology that there are millions of people who believe in evolution and in the story of creation as set forth in the Bible and who find no conflict between the two. The defense maintains that this is a matter of faith and interpretation, which each individual must make for himself.”

Only four witnesses were called for the prosecution. The school superintendent testified that the official school textbook did refer to evolution and that Scopes had admitted to teaching it. Two students testified that Scopes had taught them evolution, and the chair of the local school board (in whose drugstore the whole plan for this trial had been hatched) testified that Scopes had admitted to him to teaching evolution. The prosecution completed its case in less than an hour.

The defense began by calling a religious zoologist Maynard Metcalf to provide expert testimony on evolution. Metcalf distinguished between the fact of evolution having occurred, which he said was accepted by scientists, and the theory behind it, about which he said there were still some unanswered questions.

Day 5, Thursday, July 16: The day began with a debate about whether further expert testimony on evolution should be allowed. Bryan gave a rousing two-hour speech, the only one he made at the trial, although he gave many speeches outside the courtroom during that period. In his speech, he recapitulated many of the points described earlier in his 1922 New York Times essay.

This was responded to by an equally rousing speech from Dudley Fields Malone, a member of the defense team, who said that the defense wanted a chance to prove the truth of evolution and the benefits of science. “We feel we stand with science. We feel we stand with intelligence. We feel we stand with fundamental freedom in America. We are not afraid.”

Although chief prosecutor Tom Stewart had wanted to stick to just the facts of the case, he felt compelled by Malone’s speech to make it clear exactly where he stood on the big question of science versus religion. He ended the day with a dramatic speech in which he said that evolution “strikes at the very vitals of civilization and Christianity and is not entitled to a chance.” He also said “They say it is a battle between religion and science. If it is, I want to serve notice now, in the name of the great God, that I am on the side of religion…because I want to know beyond this world that there might be an eternal happiness for me and for others.”

Day 6, Friday, July 17: The judge ruled on the issue of allowing further expert testimony by saying that the “defense could present written affidavits or read prepared statements into the record…but the prosecution could cross-examine any witness put on the stand.” This requirement posed a problem for the defense. Although they wanted to present expert testimony on the stand, they did not want their scientists to be cross-examined because they feared that it would reveal that although the scientists were religious people, they did not believe in the literal truth of the virgin birth and other miracles.

As another defense attorney Arthur Garfield Hays said, “It was felt by us that if the cause of free education was ever to be won, it would need the support of millions of intelligent churchgoing people who didn’t question theological miracles” and that kind of testimony risked losing that support. So they agreed to provide written affidavits to be entered into the record for the purposes of appellate review, and the trial adjourned for the weekend.

Over the weekend, eight scientists prepared written testimony that essentially said that “evolution is a fact, and that a well rounded education cannot well do without it.” Some sought to reconcile evolution with creation, as did four religion experts. But while that preparation was going on, Darrow was planning the surprise that would forever after grab the imagination of the public and define the trial.

Day 7, Monday, July 20: In the Genesis account of creation, after six days spent in creating the universe, God rested. But in the Scopes trial, day seven was when the most dramatic activity occurred.

It began quietly enough with the written testimony prepared by experts over the weekend being accepted into the record, along with a two-hour reading of excerpts by defense counsel Arthur Garfield Hays. All of this was kept from the jury. It was then that Darrow dropped his bombshell. He said that he would call the prosecutor William Jennings Bryan as a (hostile) witness for the defense in the afternoon.

Although the rest of the prosecution team saw no good coming from this highly unusual request and objected, Bryan relished the opportunity to have a verbal duel with Darrow, to fight for God and Christianity against the militant agnostic, and said he would testify, provided he could put the defense team on the stand as well.

Finally, the clash of titans the entire nation following the trial had been waiting for was about to occur. When word got around of what was going to happen that day after lunch, huge crowds gathered to see the spectacle and the judge had to order that the trial be moved outdoors to accommodate the crowd, partly because of the sweltering heat indoors and partly because he feared the floor would collapse under their weight. Bryan took the stand for the defense on Monday afternoon and the rest, as they say, is history.

Bryan’s testimony did not go well. The film Inherit the Wind, in an extended and gripping climactic scene, captures what happened quite accurately. While Bryan could hold his own in grand debates over the big ideas of evolution and religion, the constraints of being a witness in a court case worked against him because the scope of his responses was limited by the questions that Darrow chose to ask. In his questioning, Darrow did not allow Bryan to make sweeping statements on the nature of science, humans, God, the soul, and evolution.

Instead Darrow pressed him on very narrowly focused questions based on specific assertions made in the Bible:40 Did Jonah actually live in the whale for three days? How could Joshua lengthen the day by ‘stopping the Sun’ when it is the Earth rotating about its own axis that causes day and night? When did the great flood occur? How old is the Earth? Do you believe the first woman was Eve? Do you believe she was made from Adam’s rib? If the serpent in the Garden of Eden was compelled to crawl on its belly as punishment for tempting Adam and Eve, how did it move about before that? Did it walk on its tail? Where did Cain get his wife? And so on.

None of these questions had anything to do with human evolution but challenged Bryan to defend a literal interpretation of the Bible and put him in a quandary. If Bryan stuck to the literal truth of the Bible in every detail, Darrow could make him look ridiculous by showing him to be completely out of touch with modern ideas and a prisoner of medieval thinking, thus discrediting the entire fundamentalist movement.

If Bryan denied the literal truth and allowed for interpretation of at least some parts of the Bible as metaphors, then he weakened the prosecution’s case since the defense was arguing that the law only forbade the teaching of “any theory that denies the story of the Divine Creation of man as taught in the Bible”. Since modernist theologians had said that the Bible could be interpreted so that it was compatible with evolution, the defense could argue that Scopes had not violated the law since there was no way of saying for certain what the Bible said about creation. (For a fascinating transcript of the questions and answers, see
www.law.umkc.edu/faculty/projects/ftrials/scopes/day7.)

Even some modernist theologians and religious scientists who opposed Bryan’s crusade against evolution have criticized Darrow’s line of questioning because it was based on old-fashioned views of Christianity and seemed designed mostly to make Bryan look foolish. They felt that if Darrow wanted to explore the important philosophical issues in the evolution-religion debate, he should have based his questions on a more sophisticated understanding of the Bible.

But it is likely that Darrow, canny and experienced trial lawyer that he was, knew exactly what he was doing. He had zeroed in on the weakest point of his opponent. He must have known that religion is at its strongest when it is making grand sweeping statements on the nature of life and the universe, because those are vague and hard to pin down or contradict. It is at its weakest when trying to explain concrete details.

Under Darrow’s questioning, Bryan faced the same problem that religious people have to this day. It is easy to proclaim faith in grand beliefs but when applied to things like Noah’s Flood or the story of Jonah or a woman being created from Adam’s rib, it becomes harder to explain how such things could possibly be literally true and if not, why you believe some things in the Bible and not others. As Darrow said later, his strategy was meant to force Bryan to “choose between crude beliefs and the common intelligence of modern times…or to admit ignorance.”

If the trial took place with today’s scientific knowledge, Darrow might have asked additional questions: If Jesus was conceived by a virgin, from where did he get his Y- chromosome? Whose genetic information was contained in it? How did Mary’s egg get fertilized? If life begins at conception as some claim, does the human soul enter that very first fertilized cell? When that first cell divides into two, what happens to the soul in it? Does it stay within the first cell, does it split in two, does it double, or does it somehow straddle the two cells? Since the majority of human embryos spontaneously abort, why does God cause that to happen? What happens to their souls and why did God bother to give them souls in the first place if he was going to abort them later? And so on.

Confronted with Darrow’s relentless questioning that focused on such very narrow questions, Bryan chose the option of pleading ignorance, saying that he was not interested in finding answers to the questions posed by Darrow and thus could not answer them, although he believed that for God all things were possible, and that answers would be forthcoming some day. In other words, he resorted to that faithful old religious standby, the ‘mysterious ways clause’ that assigns all unanswerable questions to the actions of an inscrutable God.

But since Bryan had said at the beginning of his testimony that he had studied the Bible extensively for fifty years, having to now repeatedly claim a lack of curiosity about such obvious questions, and pleading ignorance of how to reconcile commonly known scientific facts that contradicted a literal reading of the Bible, resulted in him coming across as an incurious know nothing. This enabled Darrow to suggest that adopting Bryan’s position on banning the teaching of evolution would be to condemn students to ignorance, in contrast to teaching them science that advocated active curiosity and the search for answers.

When Darrow said during his questioning of Bryan that “You insult every man of science and learning in the world because he does [not] believe in your fool religion…I am [examining] you on your fool ideas that no intelligent Christian on earth believes”, he was not making his case to the jury but to the larger world.

The other members of the prosecuting team saw the damage being done by this line of questioning and repeatedly objected but Bryan bravely, and perhaps foolishly, insisted on continuing until the trial adjourned for the day, saying that he did not want to be accused of being afraid to answer questions. He also probably felt that he could repair any damage during his closing statement in the case, where he would have full rein to make the kind of grand arguments in favor of God and the Bible and against evolution that had proven so successful when he gave public speeches.

Day 8, Tuesday, July 21: The Scopes trial came to an abrupt end on the eighth day. The judge began the day by stopping the questioning of Bryan from continuing and ordered his previous day’s testimony stricken from the record. But the damage had already been done since the point of the case, after all, was not to persuade the jury in the room but to score points to a wider nationwide audience. Darrow had exploited his line of questioning of Bryan to gain a major propaganda victory for science, in the full glare of the national media, by showing that religious beliefs like Bryan’s led to an intellectual cul-de-sac.

Following the judge’s ruling ending Bryan’s testimony, the defense promptly rested its case and Darrow made a brief statement asking the jury to bring in a verdict of guilty. The defense’s strategy all along had been to argue against the Butler Act on constitutional grounds in the appellate courts. In order to have grounds for such an appeal they needed to have Scopes found guilty in the lower court. Since pleading guilty at the outset would not have allowed Scopes to appeal, he had to plead innocent and yet be convicted, which explains the seemingly strange request of a defense counsel asking a jury for a guilty verdict against his own client.

Darrow told the jury:

As far as this case stands before the jury, the court has told you very plainly that if you think my client taught that man descended from a lower order of animals, you will find him guilty, and you heard the testimony of the boys on that questions and heard read [sic] the books, and there is no dispute about the facts. Scopes did not go on the stand, because he could not deny the statements made by the boys. I do not know how you may feel, I am not especially interested in it, but this case and this law will never be decided until it gets to a higher court, and it cannot get to a higher court probably, very well, unless you bring in a verdict.

But there was an additional benefit to be gained by the defense simply asking for a directed verdict of guilty and resting the case without presenting a closing statement. According to trial rules, this meant that the prosecution could not make a closing statement either. The defense was executing a deliberate strategy to prevent the prosecution, especially Bryan, from having the last word. So rather than the case ending with Bryan making the kind of grand, eloquent, and sweeping speech that The Boy Orator was famous for, the last impression that he left was his dismal performance on the witness stand. Darrow had outmaneuvered Bryan.

The jury duly complied with Darrow’s request and after just a few minutes deliberation returned with the verdict, finding Scopes guilty. The jury said they had not decided on the size of the penalty and the judge said he would impose the minimum sentence required by law, which was $100. The chief prosecutor said that he thought that Tennessee law required the jury, not the judge, to set the fine, but the judge said it was his understanding that as long as it was just the minimum fine, he could set it and all sides agreed to go along with this.

The case ended with both sides claiming victory, the prosecution getting a guilty verdict, and the defense claiming that they had shown the world the superiority of science over religion.

Tomorrow I will discuss what happened with the appeal of Scopes’s conviction.