TBA Law Blog

Posted by: Sam Elliott on Apr 28, 2011

Journal Issue Date: May 2011

Journal Name: May 2011 - Vol. 47, No. 5

My penultimate President’s Perspective relates to the famous Scopes trial of 1925. It was a contrived matter from the start, initially conceived by the ACLU to challenge Tennessee’s Butler Act, which made it illegal to teach “any theory that denies the story of Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals.” Hearing that the ACLU was looking for a nominal defendant to bring its challenge, civic leaders met at Robinson’s Drug Store in Dayton and decided to revive the then-moribund business prospects of their community by having the suit tried there. A local teacher, John Scopes, volunteered that he had taught evolution as a substitute one day, and was accordingly indicted for violation of the Butler Act, thereby immortalizing his name. By moving quickly, Dayton beat out Chattanooga as the site of the trial.

The resulting spectacle certainly brought a great deal of attention to Dayton. 1925-style pundit H. L. Mencken reported the proceedings and before his arrival, expected “a squalid Southern village” but, upon inspection, found a town of charm and beauty. Amused by the tone of the town, he observed: “It would be hard to imagine a more moral town than Dayton. If it has any bootleggers, no visitor has heard of them. … No fancy woman has been seen in the town since the end of the McKinley administration. There is no gambling. There is no place to dance. The relatively wicked, when they would indulge themselves, go to Robinson’s drug store and debate theology.” Eventually, Mencken’s tone got nastier, as he expressed astonishment at a snake-handling church service in the hills outside Dayton and called the inhabitants of the town “hillbillies” and “yokels.”

By my unofficial calculation, the lawyers who gathered to represent the parties in the case were the most impressive array of legal talent ever to try a misdemeanor case. Scopes’s ALCU-provided defense team included noted Knoxville attorney John Randolph Neal and, as outside volunteers, Clarence Darrow, Dudley Field Malone, and Arthur Garfield Hays. On the state’s side were District Attorney General Thomas Stewart (whose descendants still practice law in Franklin County, and whose grandson sits as a chancellor in that same Rhea County courthouse), local attorneys Herbert Hicks and his brother Sue K. Hicks (said to be the inspiration for Johnny Cash’s famous hit “A Boy Named Sue”), Ben B. McKenzie (whose descendant is a judge in Rhea County) and, most famously, William Jennings Bryan, 29 years removed from his famous “Cross of Gold” speech.

While the issue of evolution made humorists style the case the Monkey Trial, the case in fact presented substantial questions of public policy and constitutional law. Did a teacher, an employee of an arm of the state, have a First Amendment right to teach what he thought appropriate? Was the Butler Act simply a legitimate exercise of the General Assembly’s powers over public education? The national interest in the trial (it was the first to be broadcast on the radio), the flamboyant characters involved, and the focus on religious issues made a serious inquiry into the legitimate constitutional issues impossible to achieve. Darrow made perhaps the two biggest splashes when he was cited for contempt after a sarcastic comment to the court, and when he called and cross-examined Bryan as an expert witness on the Bible.[1]

Eventually, Scopes was convicted. On appeal, the Tennessee Supreme Court found a way to sustain the Butler Act against the various constitutional challenges brought by the ACLU, but voided the conviction on the basis that the court had assessed a $100 fine. Under Article IV, Section 14 of the Tennessee Constitution, then, as now, a fine over $50 could only be set by a jury. The Butler Act survived until it was quietly repealed in 1967.

To put the finishing touch on this year’s focus on Tennessee legal history, one of the events at next month’s Annual Convention in Chattanooga will be a trip to the famous Rhea County courthouse for a presentation in the historic courtroom by Edward J. Larson of Pepperdine University. Larson won the Pulitzer Prize for his book on the Scopes trial, Summer for the Gods: The Scopes Trial and America’s Continuing Debate Over Science and Religion. This is a unique opportunity to join judges and lawyers from across Tennessee to educate yourself on Tennessee’s most famous trial, in Tennessee’s most famous courtroom, by the most acclaimed expert on the case and the social, cultural, religious and intellectual issues it raised. I look forward to seeing each of you there.


1. Unfortunately, the Scopes trial (and Inherit the Wind) has made Bryan a caricature of a narrow minded fundamentalist. Known as the “Great Commoner,” he was actually much more complex, and advanced several liberal causes over a political career that exceeded 30 years. In 1915, he resigned his position as Woodrow Wilson’s Secretary of State because he felt Wilson was being too aggressive toward Germany after the sinking of the Lusitania. Bryan died five days after the trial ended.