First, Dayton’s two young city attorneys, Herbert E. Hicks and Sue K. Hicks, agreed to prosecute the case if a local teacher had taught evolution during the brief period between enactment of the law and the end of the school year. The Hicks brothers (Sue was named for his mother, who died at his birth) were the only persons involved in bringing the case other than Walter White who expressed any sincere concern about teaching evolution, but even they doubted the constitutionality of the antievolution statute. Wallace Haggard, a young Dayton attorney better known for his exploits on the gridiron for Vanderbilt than in the courtroom for clients, volunteered to assist them. The ACLU offered to pay their expenses, but all three declined.6
Second, the drugstore conspirators summoned the high school’s 24-year-old general science instructor and part-time football coach, John T. Scopes. “Robinson offered me a chair and the boy who worked as a soda jerk brought me a fountain drink,” Scopes later wrote. “‘John, we’ve been arguing,’ said Rappleyea, ‘and I said that nobody could teach biology without teaching evolution.’ ‘That’s right,’ I said, not sure what he was leading up to.” A chain-smoker, Scopes probably lit a cigarette at this point, if he had not already done so. He then pulled down a copy of Hunter’s Civic Biology from a sales shelf—the enterprising Robinson also sold public school textbooks—and opened it to the section on human evolution. This was the state-approved text, prescribed for use in all Tennessee high schools. ‘“You have been teaching ’em this book?’ Rappleyea said. ‘Yes,’ I said. I explained that I had got the book out of storage and had used it for review purposes while filling in for the principal during his illness. He was the regular biology teacher,” Scopes recalled. “‘Then you’ve been violating the law,’ Robinson said.” The school board official then told Scopes about the ACLU offer. Scopes remembered the fateful question: “‘John, would you be willing to stand for a test case?’ Robinson said. ‘Would you be willing to let your name be used?’ I realized that the best time to scotch the snake is when it starts to wiggle. The snake already had been wiggling a good long time.”7
Dayton trial leaders reenact their original meeting at Robinson’s drugstore for press photographers. Seated from left are Herbert Hicks, John Scopes, Walter White, and Gordon McKenzie; standing are constable Burt Wilbur, Wallace Haggard, W. E. Morgan, George Rappleyea, Sue Hicks, and F. E. Robinson. (Courtesy of Bryan College Archives)
Scopes presented an ideal defendant for the test case. Single, easygoing, and without any fixed intention of staying in Dayton, he had little to lose from a summertime caper—unlike the regular biology teacher, who had a family and administrative responsibilities. Scopes also looked the part of an earnest young teacher, complete with horn-rimmed glasses and a boyish face that made him appear academic but not threatening. Naturally shy, cooperative, and well-liked, he would not alienate parents or taxpayers with soapbox speeches on evolution or give the appearance of a radical or ungrateful public employee. Yet his friends knew that Scopes disapproved of the new law and accepted an evolutionary view of human origins. Not that he understood much about the issue—after all, he taught physics, math, and football, not biology—but he was a student at the University of Kentucky when that institution’s president led the fight against antievolution legislation in the Bluegrass State, and he admired the president’s courage. Furthermore, Scopes’s father, an immigrant railroad mechanic and labor organizer, was an avowed Socialist and agnostic who, as the Chattanooga Times reported, “could talk long and loud against the political and religious system of America.”8 John Scopes inclined toward his father’s views about government and religion, but in an easygoing way. Indeed, he liked to talk about sports more than politics and occasionally attended Dayton’s northern Methodist church as a way to make friends. This was their defendant, an establishment’s rebel who would test the law without causing trouble. “Had we sought to find a defendant to present the issue,” ACLU counsel Arthur Garfield Hays later confided, “we could not have improved on the individual.”9
Although Rappleyea and Robinson pressed the young teacher to accept the challenge, Scopes could have refused. Sue Hicks stood at his side; the two young men were close friends. “After we had discussed that possibility for a while, Scopes said he would be glad to do it, and I said I wouldn’t mind to prosecute him,” Hicks reported. Rappleyea then called over a nearby justice of the peace, swore out a warrant for Scopes “arrest,” and handed it to a waiting constable to “serve” on the accused.10 After Scopes left for a game of tennis, Rappleyea wired the ACLU in New York while Robinson called the Chattanooga Times and Nashville Banner. Walter White, for his part, hailed the local stringer for the Chattanooga News with the words, “Something has happened that’s going to put Dayton on the map!”11 The show had begun.
The next day, a front-page article in the Banner carried the story. “J. T. Scopes, head of the science department of the Rhea County high school, was ... charged with violating the recently enacted law prohibiting the teaching of evolution in the public schools of Tennessee. Prof. Scopes is being prosecuted by George W. Rappleyea, manager of the Cumberland Coal and Iron Co., who is represented in the prosecution by S. K. Hicks,” the newspaper reported. “The defendant will attack the new law on constitutional grounds. The case is brought as a test of the new law. The prosecution is acting under the auspices of the American Civil Liberties Association [sic] of New York, which, it is said, has offered to defray the expenses of such litigation.”12 The Associated Press picked up this article and transmitted it to every major newspaper in the country.
Anyone capable of reading between the lines of this article could see that Tennessee v. Scopes was not a normal criminal case. Enmity typically characterized the relationship between the ACLU and public officials during the twenties. Prosecutors simply did not act under ACLU “auspices.” The ACLU would never “defray” prosecution expenses. School officials rarely publicized criminal charges filed against one of their own teachers. Everything about this case appeared upside-down, and no one seemed to care about upholding the law. Of course, the statute itself was unusual. From the outset, Bryan counseled against including a penalty provision, and Governor Peay predicted that it would never be enforced. As if taking a cue from these leaders, other Tennessee communities passed over the opportunity for what the Nashville Tennessean denounced as “cheap publicity.”13 In Dayton, however, civic leaders all but manufactured a test case, then bragged about doing so. Even the ACLU failed at first to appreciate the uniqueness of the situation; its initial press release predicted “a conviction in the trial” and stressed its “arrangements” for the appeal.14 Clearly, the ACLU anticipated a typical constitutional test case in which most of the serious lawyering occurred at the appellate level. Daytonians, of course, had other ideas.
These developments did not necessarily reflect on Tennessee as a whole. The offer to stage the trial came from New York, as did Rappleyea. Scopes hailed from Salem, Illinois—Bryan’s hometown. Even Sue Hicks was new to Dayton, and all three men soon moved on. The town itself was new—and fundamentally disconnected from its state and region. East Tennessee was the only major Republican enclave in the entire South. Bryan swept every southern state during his three runs for the presidency, but never carried Rhea County. Peay typically trailed there as well. Local politicians did not owe allegiance to the Commoner or the governor. Religious differences existed too: Tennessee and the South were essentially Baptist, whereas Dayton was mostly Methodist—and, as H. L. Mencken joked during the trial, “a Methodist down here belongs to the extreme wing of liberals.” Furthermore, a relatively high percentage of Dayton residents did not belong to any denomination; indeed, the town’s Masonic lodge claimed more adult male members than any local church. But Dayton was not a hotbed of modernism. An informal survey conducted during the trial found that 85 percent of persons attending Dayton churches professed to believe the Bible literally. More than likely, however, few could have listed the basic tenets of fundamentalism; it
was not that sort of town.15
Journalists covering the trial commented on Dayton’s distinctiveness from the outset. None found rancor. Even the hypercynical Mencken wrote in his first report from Dayton, “The town, I confess, greatly surprised me. I expected to find a squalid Southern village, with darkies snoozing on the houseblocks, pigs rooting under the houses and the inhabitants full of hookworm and malaria. What I found was a country town full of charm and even beauty.” Dayton was too new to be run-down and attracted fewer African Americans than many similarly sized manufacturing towns of the North and Midwest.16 “Nor is there any evidence in the town of that poisonous spirit which usually shows itself where Christian men gather to defend the great doctrines of their faith,” Mencken added. “The basic issues of the case, indeed, seems to be very little discussed at Dayton. What interests everyone is its strategy.”17 Within a few days, Mencken realized that their primary interest was in good publicity and quietly slipped out of town before his increasingly caustic reports got him in too much trouble.
Other Tennesseans did not appreciate Dayton’s publicity “stunt,” as the Chattanooga Times termed the Scopes trial. Vanderbilt University’s renowned humanist Edwin Mims described the antievolution law as “disturbing” and the pending trial as “deplorable.” Governor Peay pointedly refused to attend the proceedings, despite a request from town officials. “It is not a fight for evolution or against evolution, but a fight against obscurity,” Congressman Foster V. Brown of Chattanooga complained. Knoxville congressman J. Will Taylor added, “The Dayton trial will be a travesty.”18
Every major newspaper of the state—even those opposed to the antievolution law—criticized Dayton for staging the trial. “Apparently the ‘booster’ element in Dayton have with questionable wisdom and taste, seized on this as an opportunity to get widespread publicity for their city,” a Nashville Tennessean editorial observed, “evidently proceeding on the doubtful theory that it is good advertising to have people talking about you, regardless of what they are saying.” The Knoxville Journal commented, “The major actors on the Dayton stage [are] there for publicity and don’t care three straws what may be decided in the court.” Still smarting from passage of the antievolution law, the editor of the Chattanooga Times denounced the Scopes trial as “a humiliating proceeding” and claimed that “every lawyer in the state is holding his head in shame.” The most charitable comment came from the Nashville Banner, which simply observed, “Dayton could not have overlooked such an opportunity to secure front page advertising space throughout the civilized world.” Fittingly, the Banner later proposed that the entire state horn in on this opportunity by having business leaders charter a train to give visiting journalists a tour of “progressive” Tennessee. “It should be made as fine a train as the state ever saw,” the editor envisioned. Of course, it never materialized.19
Tennesseans living outside Rhea County tended to foresee nothing but bad publicity coming from what the Chattanooga Times called “the Dayton serio-comedy.”20 This was the main reason why the Banner wanted to show other parts of the state to visiting journalists. Those proud of their state’s antievolution statute feared that the upcoming trial would discredit it and Tennessee; those embarrassed by it feared that the upcoming trial would heap further ridicule on their state.
Still suffering from the ravages of the Civil War and the humiliation of Reconstruction, Southerners were conscious of their national image and sensitive to any perceived slight. Fourteen southern states, including Tennessee, had just opened a promotional exposition in New York City. “The South has suffered from reports of illiteracy among its population, of poverty among its people, of backwardness in business,” the mayor of New York observed at the time. “This exposition is a progressive step ... to tell the rest of the country some of the facts about Southern progress.”21 Tennessee editorialists chronicled the response to the exposition. “The New York newspapers as a rule are commenting most kindly,” a Chattanooga Times editorial noted, but it took extreme exception to a Herald-Tribune comment that, “while the south has advanced industrially, it has not recovered intellectually.”22 After quoting from several laudatory reports in the New York press, a Nashville Banner editorial added, “The world is taking note of the South.” In the same issue, however, the Banner carried the initial report from Dayton about Scopes’s “arrest.”23 The world would take note—but of the later event, and it was not the type of notice that the Banner wanted for the state; it simply reinforced stereotypes about intellectual backwardness and eclipsed any “facts about Southern progress” coming from the exposition.
Daytonians pushed on without regard to their critics. At a preliminary hearing on May 9, the county’s three justices of the peace formally held Scopes for action by the August grand jury, in the meantime releasing him without bond. Knoxville’s eccentric law professor, John Randolph Neal, who ran his own proprietary law school following his dismissal from the University of Tennessee faculty and failure to unseat Peay in the 1924 gubernatorial primary, appeared for the defense at this hearing, along with Godsey. Neal had driven to Dayton a few days earlier without invitation and presented himself to Scopes with the words, “Boy, I’m interested in your case and, whether you want me or not, I’m going to be here.” The ACLU had not yet made arrangements for legal representation and in any event Scopes needed local counsel, so the relationship stuck.24 At the hearing, Neal readily conceded that Scopes taught about human evolution but denied that it conflicted with the biblical account. “Legislative enactment can not make it so,” he asserted. This would remain Scopes’s principal argument throughout: the majority, acting through the legislature, cannot define the tenets of science or religion for individual public school teachers or students. “We regard it as equally un-American, and therefore unconstitutional, whether it is kingly or ecclesiastical authority or legislative power that would attempt to limit the human mind in its enquiry after truth,” Neal explained.25
Trial promoters welcomed Neal as the first noted outsider to join the proceedings but cried foul when he suggested transferring the case to Knoxville or Chattanooga, which could provide more dignified facilities for the event and adequate accommodations for visitors. The Chattanooga News even tried to instigate a new case in its city in the event that the transfer fell through. Daytonians responded by threatening to boycott Chattanooga merchants and preparing their town for the trial.26 The leading civic association, the Progressive Dayton Club, formed a Scopes Trial Entertainment Committee to arrange suitable trial facilities and visitor accommodations. “A strong following has been mustered for erecting a gigantic tent,” the Nashville Tennessean reported. “Others favor placing a roof over the baseball park and there are those who stand solidly behind a plan to fill every inch of the courtroom with seats, place benches on the huge lawn and use loud speakers.” Proponents of the third option stressed that Dayton already had an unusually large courtroom—the second largest in the state—and they ultimately prevailed. Housing the thousands of expected visitors posed a trickier problem because Dayton had only three hotels, with a combined total of two hundred rooms. The committee provided for further accommodations though a card index of rooms in private homes and requisitioning army tents and cots through East Tennessee’s powerful representative in Congress, future Secretary of State Cordell Hull. To clinch the case for Dayton, the district judge, acting with the consent of both prosecution and defense, called a special session of the grand jury for May 25 to indict Scopes before any other town could steal the show.27
Carried away with these developments, trial promoters invited the British evolutionist and writer H. G. Wells to present the case for evolution. “I am sure that in the interest of science Mr. Wells will consent,” Rappleyea told reporters. Of course, Wells, a popular writer and speaker—not a lawyer—summarily dismissed the idea, although he did take up the cause against Bryan and antievolutionism in articles and addresses. The invitation, however, suggested that Daytonians envisioned the upcom
ing trial more as a public debate around Scopes than as a criminal prosecution against him. Indeed, it had all the trappings of a summer Chautauqua lecture series, then a popular form of education and entertainment in communities throughout America. In mid May, their vision began crystallizing into reality when William Jennings Bryan—a top draw on the Chautauqua circuit—volunteered his services for the prosecution.28
Strictly speaking, it made no more sense for Bryan to appear as an attorney for this case than for Wells to do so. The Commoner had not practiced law for more than thirty years. Traditionally, a Washington or a Lincoln served as the model for American political leaders—a planter or an attorney elected by the people to political office, who then returned to private life after public service. Bryan followed a newer model—one that would become common later in the twentieth century. He adopted a series of political causes, from monetary reform in the 1890S to antievolution legislation in the 1920S, and championed them full time win or lose. Through lecture fees and book contracts, Bryan earned far more money speaking and writing about these causes out of office than he ever earned from his government salary as a member of Congress or the cabinet. He so loved the spotlight and passionately believed in his causes that returning to the practice of law held little attraction for him.
Summer for the Gods: The Scopes Trial and America's Continuing Debate Over Science and Religion Page 12