How Clarence Darrow Lost a Case, Won the Cause—And How the Triumph of Evolution is in Danger

Clarence Darrow makes a point in his opening remarks in a sweltering courtroom.

On May 25, 1925 John T. Scopes, a high school biology teacher in Dayton, Tennessee was indicted on charges of violating the state’s Butler Act which made it a crime to teach that humans descend from apes or other “lower forms,” a key element in the theory of evolution.  Scopes had been recruited by the American Civil Liberties Union to allow himself to be used as a test case for the recently enacted law.  He was arrested and charged on May 5 for teaching from a state approved text book with a chart illustrating “the descent of Man” on April 7.    Scopes was released on bail of $100 paid for by the publisher of the Baltimore Sun. 

At his request some of his own students testified against him in front of the Grand Jury which returned the indictment.

Things got out of hand when local attorneys Herbert E. and Sue K. Hicks, brothers friendly to Scopes, were replaced as lead prosecutors by the politically ambitious Tom Stewart who would ride his role in the case all the way to the U. S. Senate.  Still not satisfied, William Bell Riley, the founder and president of the World Christian Fundamentals Association, the leading voice of the still fledgling Fundamentalist movement, recruited three time Presidential nominee William Jennings Bryan to join the team.  That insured, as Scopes himself later acknowledged, that the controversy could never be contained “within the bounds of constitutionality.”

Brian was a leading Democratic Party liberal who had most recently served as Woodrow Wilson’s Secretary of State before resigning in protest to Wilson’s increasing moves to enter the First World War.  But the Great Commoner was also intensely religious and a known believer in the “inerrancy of the Bible.”  He was also a very rusty lawyer, having not tried a case in 36 years.

John R. Neal, a law school professor from Knoxville was nominally the lead for the defense, but was upstaged when Clarence Darrow, the nation’s most famous trial lawyer and most notorious Freethinker volunteered his services.  ACLU attorney Arthur Garfield Hays and New York society divorce lawyer Dudley Field Malone rounded out the defense team.

When Darrow arrived he pushed aside the original ACLU plan to attack the case as a violation of teacher’s individual free speech rights and academic freedom and was therefore unconstitutional.  Darrow preferred to try to show that there was no conflict between the Bible and the theory of evolution.  He planned a defense that relied on expert testimony by both scientists and non-fundamentalist religious scholars.

By the time the trial was underway in July, Dayton had become a three ring circus of Evangelical tent crusades, book peddlers, advocates on both sides, and a press frenzy led by H. L. Menken, the acid penned columnist for the Baltimore Sun, which was underwriting the defense.  Menken dubbed the case the Monkey Trial. There were also newsreel cameras and the microphone of WGN Radio inside the courtroom, making it the most documented court case in history.

From the outset Judge John T. Raulston, who began his instruction to the jurors with Biblical quotations from Genesis, was hostile to the defense and clashed repeatedly with Darrow.  He disallowed repeated efforts to introduce expert testimony.  Bryan was called upon by the prosecution to argue against the introduction of expert testimony, but strayed far to a mocking taunt to Darrow and evolutionists which played well with gallery, but opened up a can of worms for the prosecution.   Bryan’s arguments were countered by Malone in what most legal historians regard as the high point of the trial.

Frustrated, Darrow hit upon calling Bryan to the stand as an expert on the Bible based on his earlier argument.  The move stunned the prosecution, but Bryan foolishly accepted thinking that he could best Darrow one-on-one.  Darrow’s relentless demolition of Bryan and his theories is the best remembered part of the trial and is the center piece of the play Inherit the Wind, based on the trial, which quoted directly from the court records in some cases and paraphrased much else.

After two hours of questioning in an open air session on the court house lawn—moved there because of crowding and oppressive heat in the courtroom—Judge Raulston refused to allow it to continue the next day and then ruled the whole thing inadmissible and expunged from the record.  Darrow asked that the jury be called in because the judge’s conduct of the trial made it a waste of time to conduct a defense.

He expected a guilty verdict, but rested his case after telling the jury, “We came down here to offer evidence in this case and the court has held under the law that the evidence we had is not admissible, so all we can do is to take an exception and carry it to a higher court to see whether the evidence is admissible or not. . . . we cannot even explain to you that we think you should return a verdict of not guilty. We do not see how you could. We do not ask it.” 

On July 21, 1925 it took the jury 9 minutes to reach a guilty verdict.  Judge Raulston imposed a $100 fine before even allowing Scopes to speak.  Upon objection he let Scopes have his only say of the trial, “…I have been convicted of violating an unjust statute. I will continue in the future, as I have in the past, to oppose this law in any way I can…”

It was generally believed that despite the outcome, Darrow and the Theory of Evolution won the case in the court of public opinion.  Dayton and the Bible Belt were widely mocked.  Exhausted and demoralized the Bryan died of a heart attack in Dayton at the age of 65 just five days after the trial ended.

The Tennessee Supreme Court overturned Scope’s conviction on a technicality and did not rule on the Butler Law’s Constitutionality.  The ACLU was unable to find another teacher willing to be a test case and the law remained on the books until the 1970s.

Frightened publishers stripped evolution from almost all text books issued for the next ten years.  Evolution was only slowly re-introduced.  By the 1950’s, however, the tide had turned and evolution was back almost unchallenged, even where local laws forbad it, across the country.

Most folks know about the Monkey Trial from the movie Inherit the Wind with Spencer Tracy as a lawyer based on Clarence Darrow, Harry Morgan as the Judge, and Fredrick March as the the William Jennings Bryan character.

After seeing productions of the still popular play Inherit the Wind or catching the wonderful movie version starring Spencer Tracy and Fredrick March one might conclude that the victory of the Theory of Evolution was complete.  And indeed, for decades it seemed so.  Educated people accepted it in general terms even if they were fuzzy on the details.  It was not only taught in schools, it was the foundation of much science and all biology instruction.  By in large it was uncontroversial.

Of course a religious minority refused to accept it, but for the most part did not attempt again to remove instruction about it from schools or at most conducted a futile, low grade guerilla campaign against it.

But with the rise of the religious right to real political power through the Republican Party in some states, anti-evolution has come roaring back with a vengeance, sometimes under the guise of something called intelligent design and sometime by advancing the reasonable sounding argument that public schools should offer students the opportunity to examine “all theories” of the origin of life and humanity side-by-side.  They do this by twisting the meaning of the word theory beyond all scientific understanding. 

Texas, which because of the large number of texts sold in that state which much conform to a curriculum approved by the state Board of Education influences text books sold throughout the nation, has eliminated most references to evolution.  Kansas and other states have passed draconian laws about what can and cannot be taught about it.  Out of fear of controversy, school districts across the country quietly remove it or down play it.

Meanwhile tourists flock to a Tennessee theme park that depicts dinosaurs and cavemen living side by side.  Surveys show that close to half of all adults now reject Darwinian evolutionary theory.  Scientists fret that a dark age of ignorance and superstition may be descending on the nation and even some thinking conservatives worry—very quietly—about how modern business dependent of science and technology can thrive when science itself is denied and even vilified.

On a final personal note, back in 1967 I played Mathew Harrison Brady, the character based on Bryan, in a production of Inherit the Wind at Niles West High School in the Chicago suburbs.  It is doubtful that any public school in America would dare present that play today.