By: Grafton Green
Date: January 17, 1927
Source: Scopes v. Tennessee, 154 Tenn. 105 (1927). Reprinted in The South Western Reporter vol. 289. St. Paul, Minn.: West Publishing, 1927.
About the Author: Grafton Green (1872–1947) graduated from Cumberland University and was admitted to the Tennessee Bar Association in 1893. He practiced general law in Nashville until becoming a justice of the Tennessee Supreme Court in 1910. Green served as chief justice from 1923 to 1947, the longest tenure of any judge on the Tennessee Supreme Court.
In 1925, the Tennessee legislature passed the Butler Act, making it illegal, in any school supported by public funds, "to teach any theory that denies the story of the Divine creation of man as taught in the Bible and to teach instead that man has descended from a lower order of animals." The American Civil Liberties Union (ACLU) advertised for teachers willing to challenge the law and offered to provide for the cost of legal defense.
In Dayton, Tennessee, a town experiencing difficult economic times, several town leaders looking for a way to attract attention and dollars to Dayton developed a plan to put a teacher on trial for violation of the recently passed law. They asked John Scopes, a high school physics and math teacher and football coach, to volunteer. He had been substituting temporarily for the regular biology teacher and indicated that he had probably taught evolution, since it was included in the text for the class. He agreed to be the defendant and the group had him arrested.
At the trial, the defense was headed by Clarence Darrow, a lawyer famous for defending labor leaders. The prosecution was led by William Jennings Bryan, a strongly religious politician who opposed evolutionary theory. Darrow argued that banning the teaching of evolution in public schools was unconstitutional because it advanced a particular religious viewpoint. Bryan's main argument was that taxpayers fund the public schools and, therefore, have a right to determine the nature of the curriculum.
The jury found Scopes guilty and the judge fined him $100. The ACLU paid the fine, and in 1926 appealed the case to the Tennessee Supreme Court. The court overturned the conviction on a technical point: By Tennessee state law, any fine greater than $50 must be imposed by the jury rather than the judge. In their decision, the justices of the state supreme court made it clear that they did not believe that the law banning the teaching of evolution was unconstitutional.
The trial attracted a great deal of media attention, drawing large numbers of people to Dayton. People all over the country and in Europe followed in the newspapers the progress of what came to be known as "The Monkey Trial," in reference to the evolutionary theory that humans descended from apes. A play, Inherit the Wind, two movie versions of the same name, and a handful of songs were inspired by the events in Dayton.
One of the most influential trials in American history, the Scopes trial and the mythology surrounding it continue to play a part in the way many Americans view the relationship between religion and science in the schools and the larger society.
The Tennessee legislature repealed the Butler Act in 1967. In 1968, the Supreme Court, in Epperson v. Arkansas, found unconstitutional a similar law in Arkansas. While no state currently has a law banning the teaching of evolution in public schools, the controversy continues in the early twenty-first century as religious fundamentalists fight to include biblical creationism in the classroom alongside evolutionary theory.
Primary Source: Scopes v. Tennessee [excerpt]
SYNOPSIS: In these excerpts from the decision of the Tennessee Supreme Court in Scopes v. Tennessee, the court concludes that the Butler Act is not unconstitutional on several grounds: The law did not violate Scopes' Fourteenth Amendment liberties because the state has a right to set limits on how state employees perform their duties. Scopes was free to teach the theory of evolution outside of school. The law does not constitute a preference to a particular religion since a belief in creation is not linked to any one religion. In addition, the court noted, the law does not require the teaching of creation, but only forbids the teaching of any contradictory theory, specifically evolution. However, the court reversed Scopes' conviction on a technicality. The case was decided January 17, 1927.
[Chief Justice Grafton Green delivered the opinion of the Court]Scopes was convicted of a violation of chapter 27 of the Acts of 1925, for that he did teach in the public schools of Rhea county a certain theory that denied the story of the divine creation of man, as taught in the Bible, and did teach instead thereof that man had descended from a lower order of animals. After a verdict of guilty by the jury, the trial judge imposed a fine of $100, and Scopes brought the case to this court by an appeal in the nature of a writ of error.…
Chapter 27 of the Acts of 1925, known as the Tennessee Anti-Evolution Act is set out in the margin.
While the act was not drafted with as much care as could have been desired, nevertheless there seems to be no great difficulty in determining its meaning. It is entitled:
An act prohibiting the teaching of the evolution theory in all the Universities, normals and all other public schools in Tennessee, which are supported in whole or in part by the public school funds of the state, and to provide penalties for the violations thereof.
Evolution, like prohibition, is a broad term. In recent bickering, however, evolution has been understood to mean the theory which holds that man has developed from some pre-existing lower type.…
Thus defining evolution, this act's title clearly indicates the purpose of the Statute to be the prohibition of teaching in the schools of the state that man has developed or descended from some lower type or order of animals.
When the draftsman came to express this purpose in the body of the act, he first forbade the teaching of "any theory that denies the story of the divine creation of man, as taught in the Bible"—;his conception evidently being that to forbid the denial of the Bible story would ban the teaching of evolution. To make the purpose more explicit, he added that it should be unlawful to teach "that man had descended from a lower order of animals." …
 It is contended that the statute violates section 8 of article 1 of the Tennessee Constitution, and section 1 of the Fourteenth Amendment of the Constitution of the United States—;the law of the land clause of the state Constitution, and the due process of law clause of the federal Constitution, which are practically equivalent in meaning.
We think there is little merit in this contention. The plaintiff in error was a teacher in the public schools of Rhea county. He was an employee of the state of Tennessee or of a municipal agency of the state. He was under contract with the state to work in an institution of the state. He had no right or privilege to serve the state except upon such terms as the state prescribed. His liberty, his privilege, his immunity to teach and proclaim the theory of evolution, elsewhere than in the service of the state, was in no wise touched by this law.
The statute before us is not an exercise of the police power of the state undertaking to regulate the conduct and contracts of individuals in their dealings with each other. On the other hand, it is an act of the state as a corporation, a proprietor, an employer. It is a declaration of a master as to the character of work the master's servant shall, or rather shall not, perform. In dealing with its own employees engaged upon its own work, the state is not hampered by the limitations of section 8 of article 1 of the Tennessee Constitution, nor of the Fourteenth Amendment to the Constitution of the United States.…
Since the state may prescribe the character and the hours of labor of the employees on its works, just as freely may it say what kind of work shall be performed in its service, what shall be taught in its schools, so far at least as section 8 of article 1 of the Tennessee Constitution, and the Fourteenth Amendment to the Constitution of the United States, are concerned.
But it is urged that chapter 27 of the Acts of 1925 conflicts with section 12 of article 11, the educational clause, and section 3 of article 1, the religious clause, of the Tennessee Constitution. It is to be doubted if the plaintiff in error, before us only as the state's employee, is sufficiently protected by these constitutional provisions to justify him in raising such questions. Nevertheless, as the state appears to concede that these objections are properly here made, the court will consider them.
 The relevant portion of section 12 of article 11 of the Constitution is in these words:
***It shall be the duty of the General Assembly in all future periods of this government, to cherish literature and science.
The argument is that the theory of the descent of man from a lower order of animals is now established by the preponderance of scientific thought and that the prohibition of the teaching of such theory is a violation of the legislative duty to cherish science.
While this clause of the Constitution has been mentioned in several of our cases, these references have been casual, and no act of the Legislature has ever been held inoperative by reason of such provision. In one of the opinions in Green v. Allen, 5 Humph. (24 Tenn.) 170, the provision was said to be directory. Although this court is loath to say that any language of the Constitution is merely directory (State v. Burrow, 119 Tenn. 376, 104 S. W. 526, 14 Ann Cas. 809; Webb v. Carter,129 Tenn. 182, 165 S. W. 426), we are driven to the conclusion that this particular admonition must be so treated. It is too vague to be enforced by any court. To cherish science means to nourish, to encourage, to foster science.
In no case can the court directly compel the Legislature to perform its duty. In a plain case the court can prevent the Legislature from transgressing its duty under the Constitution by declaring ineffective such a legislative act. The case, however, must be plain, and the legislative act is always given the benefit of any doubt.
If a bequest were made to a private trustee with the avails of which he should cherish science, and there was nothing more, such a bequest would be void for uncertainty. Green v. Allen, 5 Humph. (24 Tenn.) 170, Ewell v. Sneed, 136 Tenn. 602, 191 S. W. 131, 5 A. L. R. 303, and the cases cited. It could not be enforced as a charitable use in the absence of prerogative power in this respect which the courts of Tennessee do not possess. A bequest in such terms would be so indefinite that our courts could not direct a proper application of the trust fund nor prevent its misapplication. The object of such a trust could not be ascertained.
If the courts of Tennessee are without power to direct the administration of such a trust by an individual, how can they supervise the administration of such a trust by the Legislature? It is a matter of far more delicacy to undertake the restriction of a coordinate branch of government to the terms of a trust imposed by the Constitution than to confine an individual trustee to the terms of the instrument under which he functions. If language be so indefinite as to preclude judicial restraint of an individual, such language could not possibly excuse judicial restraint of the General Assembly.
If the Legislature thinks that, by reason of popular prejudice, the cause of education and the study of science generally will be promoted by forbidding the teaching of evolution in the schools of the state, we can conceive of no ground to justify the court's interference. The courts cannot sit in judgment on such acts of the Legislature or its agents and determine whether or not the omission or addition of a particular course of study tends "to cherish science."
 The last serious criticism made of the act is that it contravenes the provision of section 3 of article 1 of the Constitution, "that no preference shall ever be given, by law, to any religious establishment or mode of worship."
The language quoted is a part of our Bill of Rights, was contained in our first Constitution of the state adopted in 1796, and has been brought down into the present Constitution.
At the time of the adoption of our first Constitution, this government had recently been established and the recollection of previous conditions was fresh. England and Scotland maintained state churches as did some of the Colonies, and it was intended by this clause of the Constitution to prevent any such undertaking in Tennessee.
We are not able to see how the prohibition of teaching the theory that man has descended from a lower order of animals gives preference to any religious establishment or mode of worship. So far as we know, there is no religious establishment or organized body that has in its creed or confession of faith any article denying or affirming such a theory. So far as we know, the denial or affirmation of such a theory does not enter into any recognized mode of worship. Since this cause has been pending in this court, we have been favored, in addition to briefs of counsel and various amici curiae, with a multitude of resolutions, addresses, and communications from scientific bodies, religious factions, and individuals giving us the benefit of their views upon the theory of evolution. Examination of these contributions indicates that Protestants, Catholics, and Jews are divided among themselves in their beliefs, and that there is no unanimity among the members of any religious establishment as to this subject. Belief or unbelief in the theory of evolution is no more a characteristic of any religious establishment or mode of worship than is belief or unbelief in the wisdom of the prohibition laws. It would appear that members of the same churches quite generally disagree as to these things.
Furthermore, chapter 277 of the Acts of 1925 requires the teaching of nothing. It only forbids the teaching of evolution of man from a lower order of animals. Chapter 102 of the Acts of 1915 requires that ten verses from the Bible be read each day at the opening of every public school, without comment, and provided the teacher does not read the same verses more than twice during any session. It is also provided in this Act that pupils may be excused from the Bible readings upon the written request of their parents.
As the law thus stands, while the theory of evolution of man may not be taught in the schools of the state, nothing contrary to that theory is required to be taught. It could scarcely be said that the statutory scriptural reading just mentioned would amount to teaching of a contrary theory.
Our school authorities are therefore quite free to determine how they shall act in this state of the law. Those in charge of the educational affairs of the state are men and women of discernment and culture. If they believe that the teaching of the science of biology had been so hampered by chapter 27 of the Acts of 1925 as to render such an effort no longer desirable, this course of study may be entirely omitted from the curriculum of our schools. If this be regarded as a misfortune, it must be charged to the Legislature. It should be repeated that the act of 1925 deals with nothing but the evolution of man from a lower order of animals.
It is not necessary now to determine the exact scope of the religious preference clause of the Constitution and other language of that section. The situation does not call for such an attempt. Section 3 of article 1 is binding alike on the Legislature and the school authorities. So far we are clear that the Legislature has not crossed these constitutional limitations. If hereafter the school authorities should go beyond such limits, a case can then be brought to the courts.
Much has been said in argument about the motives of the Legislature in passing this Act. But the validity of a statute must be determined by its natural and legal effect, rather than proclaimed motives. Lochner v. New York, 198 U. S. 45, 25 S. Ct. 539, 49 L. Ed. 937, 3 Ann Cas. 1133; Grainger v. Douglas Park Jockey Club (C. C. A.) 148 F. 513, 8 Ann. Cas. 997; R. C. L. III, 81.
Some other questions are made, but in our opinion they do not merit discussion, and the assignments of error raising such questions are overruled.
 This record disclosed that the jury found the defendant below guilty, but did not assess the fine. The trial judge himself undertook to impose the minimum fine of $100 authorized by the statute. This was error. Under section 14 of article 6 of the Constitution of Tennessee, a fine in excess of $50 must be assessed by a jury. The statute before us does not permit the imposition of a smaller fine than $100.
Since a jury alone can impose the penalty this act requires, and as a matter of course no different penalty can be inflicted, the trial judge exceeded his jurisdiction in levying this fine, and we are without power to correct his error. The judgment must accordingly be reversed. Upchurch v. State,153 Tenn. 198, 281 S. W. 462.
The Court is informed that the plaintiff in error is no longer in the service of the state. We see nothing to be gained by prolonging the life of this bizarre case. On the contrary, we think the peace and dignity of the state, which all criminal prosecutions are brought to redress, will be the better conserved by the entry of a nolle prosequi herein. Such a course is suggested to the Attorney General.
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Conkin, Paul Keith. When All the Gods Trembled: Darwinism, Scopes, and American Intellectuals. Lanham, Md.: Rowman and Littlefield, 1998.
Larson, Edward J. Summer for the Gods: The Scopes Trial and America's Continuing Debate over Science and Religion. New York: Basic Books, 1997.
Lawrence, Jerome, and Robert E. Lee. Inherit the Wind. New York: Random House, 1955.
Taylor, Bonnie B. Education and the Law: A Dictionary. Santa Barbara, Calif.: ABC-CLIO, 1996.
Tompkins, Jerry R., ed. D-Days at Dayton: Reflections on the Scopes Trial. Baton Rouge: Louisiana State University Press, 1965.
"American Experience: Monkey Trial." PBS. Available online at http://www.pbs.org/wgbh/amex/monkeytrial/; website home page: http://www.pbs.org/ (accessed March 11, 2003).
"The Scopes Trial." The Ohio State University Department of History. Available online at ; website home page: http://www.history.ohio-state.edu/ (accessed March 11, 2003).
"Scopes Trial Home Page." University of Missouri–Kansas City School of Law. Available online at http://www.law.umkc.edu/faculty/projects/ftrials/scopes/sco... ; website home page: http://www.law.umkc.edu/ (accessed March 11, 2003).
AUDIO AND VISUAL MEDIA
Inherit the Wind. Directed by Stanley Kramer. 1960. MGM/UA Home Video.
Monkey Trial. American Experience Series. Directed by Christine Lesiak. PBS Home Video. Videocassette, 2002.