As I said in my previous post, the Scopes defense team wanted their client to be found guilty of violating the 1925 Butler Act guilty so that they could appeal to the higher courts on the constitutional grounds that it violated free speech guarantees. This was why Scopes’s main attorney Clarence Darrow actually asked the jury to bring in a guilty verdict, which they were happy to do after just a few minutes deliberation.

The following 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, describes the aftermath of the trial

The Scopes verdict was appealed to the Tennessee Supreme Court. Many people on the defense side, including the ACLU, tried to have Darrow removed from the defense team for the appeal since they wanted to bring the focus back to the issue of free speech and feared that Darrow’s strong antipathy to religion would result in that issue dominating once again. But Darrow and his allies outmaneuvered them and he stayed on.

The Tennessee Supreme Court heard oral arguments in May 1926. There were many briefs filed on both sides, the state again arguing the majoritarian view that what the elected representatives decided was binding whatever its merits, basing its argument on a recent US Supreme Court judgment that had upheld compulsory school vaccinations because of the public good. The lawyers for the state said, “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.”

The state also argued that the Butler Act was not meant to promote any sectarian religious belief but instead was designed to level the playing field in education, that since the Bible could not be taught in public schools, anti-Biblical theories should also not be taught. They asserted that those challenging the statute were doing so to advance atheistic views and referred to Darrow’s well-known opposition to religion to support their case.

The defense countered that “this theory would absolutely nullify constitutional government and inaugurate the dictatorship of the majority.” In oral arguments, defense counsel Arthur Garfield Hays said that the Fourteenth Amendment to the US Constitution prevented the state from enforcing unreasonable laws and that “Tennessee’s “absurd” antievolution statute violated this standard as much as a law against teaching Copernican astronomy would.”

Darrow argued a point that has continued to be invoked to this day, that the anti-evolution statute in question was not designed to foster neutrality in education but that opposition to the theory of evolution essentially sprang from a religious foundation that was hostile to science. Thus any attempt to suppress the teaching of evolution was also effectively an attempt to advance religious views at the expense of science, and this went counter to the purposes of public schools.

Even as the defense was making its appeal, they fully expected that the Tennessee Supreme Court to rule against them and uphold the lower court conviction, and they set about planning the appeal to the US Supreme Court, which is where they hoped to win the case on free speech grounds and thus advance individual liberties.

But in a surprise maneuver, the Tennessee Supreme Court did something that prevented the defense team from achieving its ambition of having the Scopes trial serve as the first major victory for the ACLU in defense of free speech. In its ruling, the court first upheld the constitutionality of the state law, saying that the Butler Act did not give any preference to any religion since it did not require teachers to teach anything specific. But it then overturned Scopes’s conviction on a technicality that neither side had raised in the appeal or objected to in the original trial, and that was that according to Tennessee law, the fine of $100 levied on Scopes should have been set by the jury and not the judge.

Since Scopes was now unexpectedly a man with no conviction against him, no further appeal was possible and this particular legal battle ended with a whimper and not a bang, with no constitutional principle established. In fact, the issue of whether it was constitutional to ban the teaching of evolution in public schools was not resolved for another four decades, until the US Supreme Court ruled in the 1968 case of Epperson v. Arkansas.

The Butler Act stayed officially on the Tennessee books, but not enforced, until 1967, when the threat of legal action was raised by another biology teacher. The state legislature then decided that having Tennessee associated with one Scopes-like spectacle was enough and the Act was finally repealed.

Next I will look at the origins of the Scopes trial.