The Scopes Trial and Appeal
John Scopes and the council for the defense at ACLU headquarters in New York.
John T. Scopes was tried before a jury in the Rhea County Circuit Court in Dayton, Tennessee between July 10 and July 21, 1925. The jury convicted Scopes of violating Tennessee’s Butler Act, prohibiting the teaching of evolution in public schools. The judge fined him $100 and court costs. The defense, always expecting a conviction, appealed to the Tennessee Supreme Court. As a result of the appeal, Scopes’s conviction was overturned on a technicality. The Butler Act did not permit the imposition of a fine smaller than $100, though the Tennessee Constitution required that fines over $50 must be assessed by a jury. The defense asked for the case to be reheard to challenge the statute’s constitutionality again, but their motion was denied and the case ended. The Butler Act remained good law for decades and was not subject to a suit again. Tennessee's famed anti-evolution statute was only repealed on May 18, 1967. In 1968, the Supreme Court in Epperson v. Arkansas, 393 U.S. 97, unanimously invalidated a similar Arkansas statute prohibiting students from being taught the theory of human evolution in public schools. The Court found that the law violated the Establishment Clause of the First Amendment. Two concurring opinions objected to it either on due process grounds, finding the law too unconstitutionally vague, or that it violated the protection of free speech.
[Manuscript on paper] Arthur Garfield Hays. Partial Draft of Appeal Brief in John Thomas Scopes v. State of Tennessee. 1925. 44 pages.
Page from draft of Scopes v. Tennessee Appeal Brief, written by Arthur Garfield Hays (1925).
This early, fragmentary draft of the defense’s appeal brief, in the hand of Arthur Garfield Hays, sheds interesting light on the development of defense theories. The draft begins with a position centered on substantive due process, arguing that Scopes’s liberty was infringed by criminalizing something that was itself innocent. This page contends that there is nothing immoral about evolution so that it could not be a crime against public order. The fragmentary draft and a related version in the Library’s collections are unique treasures for studying the development of the defense’s arguments.
[Printed Draft] Scopes, Plaintiff in Error, vs. State of Tennessee, Defendant in Error … Statement of Facts, Assignment of Errors, Brief and Argument in Behalf of John Thomas Scopes, Plaintiff in Error. New York: Richard Weiner, 1925.
In the appeal brief submitted to the Tennessee Supreme Court, Scopes’s team opposed the power of the state to control the teaching of science, claiming that a state could not require biology to be taught incorrectly. To defend evolution as good science, the defense cited the views of prominent biologists, dictionaries and encyclopedias, even Woodrow Wilson. The appeal brief also articulated the most familiar argument, that the anti-evolution law violated the First Amendment by purporting to “establish” a religion.
This copy of the draft is annotated on its cover by Arthur Garfield Hays.
View full-text of appeal brief .
John Thomas Scopes, Plaintiff in Error, vs. State of Tennessee, Defendant in Error … Reply Brief and Argument for the State of Tennessee. Nashville: Baird-Ward, 1926.
In the State’s reply brief, the authors, including William Jennings Bryan’s own son, asserted that prohibiting evolution—dubbed a pseudo-science—in public schools protected all religions without favoring any. The First Amendment’s Establishment Clause was not infringed, they argued, in part because the Act did not require the teaching of a particular religious doctrine about the origins of humankind. The State similarly denied that there were liberty rights at stake under the Due Process clause, for teachers could not be allowed to teach anything they chose, including immoral doctrines.
View full text of reply brief .
In the Supreme Court of Tennessee: John T. Scopes, in Error, v. The State. From the Circuit Court of Rhea County Transferred to Nashville: Brief for Defendant in Error (Kansas City, Mo: Frank T. Riley, 1926).
This amicus brief, filed by Robert Burrow in Scopes’s appeal to the Tennessee Supreme Court, reflects some of the passion involved in arguments against evolution, both in the court and beyond it. The fiery brief denounces evolution and advocates for religious education: “If it be true that the State is powerless to protect its children in the public school from the teachings of atheists and infidels … then we ought to be of all men most miserable,” referencing a Biblical verse in its last phrase. Elsewhere, Burrow claimed that Christianity was part of English common law and thus passed naturally into American law. The author was a prominent Bristol, Tennessee, lawyer and the superintendent of the Tennessee penitentiary. Only three copies of this brief are recorded in libraries.