Rocks of Ages (13 page)

Contrary to the play, Scopes was not persecuted by Bible-thumpers, and never spent a second in jail. The trial did have its epic moments—particularly when Bryan, in his major speech, virtually denied that humans were mammals; and, in the most famous episode, when Judge Raulston convened his court on the lawn (for temperatures had risen into triple digits and cracks had developed in the ceiling on the floor below the crowded courtroom), and allowed Darrow to put Bryan on the stand as a witness for the defense. But the usual reading of the trial as an epic struggle between benighted Yahooism and resplendent virtue simply cannot suffice—however strongly this impression has been fostered both by
Inherit the Wind
and by the famous reporting of H. L. Mencken, who attended the trial and, to say the least, professed little respect for Bryan, whom he called “a tinpot pope in the Coca-Cola belt.”

Scopes was recruited for a particular job—both by the ACLU and by Dayton fundamentalists, who saw the trial as an otherwise unobtainable opportunity to put their little town “on the map”—and not proactively persecuted in any way. The ACLU wanted a quick process and a sure conviction, not a media circus. (The
Scopes trial initiated live broadcast by radio, and might therefore be designated as the inception of a trajectory leading to O.J. Simpson and other extravaganzas of arguable merit.) The local judge held no power to determine the constitutionality of the statute, and the ACLU therefore sought an unproblematical conviction, designated for appeal to a higher court. They may have loved Clarence Darrow as a personality, but they sure as hell didn’t want him in Dayton. However, when Bryan announced that he would appear for the state of Tennessee to rout Satan from Dayton, the die was cast, and Darrow’s counteroffer could hardly be refused.

The basic facts have been well reported, but the outcome has almost always been misunderstood. Darrow did bring several eminent scientists to testify, and the judge did refuse to let them take the stand. In so deciding, he was not playing the country bumpkin, but making a proper ruling that his court could judge Sccpes’s guilt or innocence only under the given statute—and Scopes was guilty as charged—not the legitimacy or constitutionality of the law itself. Testimony by experts about the validity or importance of evolution therefore became irrelevant. In this context, historians have never understood why Judge Raulston then allowed Bryan to testify as an expert for the other side. But this most famous episode has also been misread. First of all, the judge later struck the entire testimony
from the record. Second, Darrow may have come out slightly ahead, but Bryan parried fairly well, and certainly didn’t embarrass himself. The most celebrated moment—when Darrow supposedly forced Bryan to admit that the days of creation might have spanned more than twenty-four hours—represented Bryan’s free-will statement about his own and well-known personal beliefs (he had never been a strict biblical literalist), not a fatal inconsistency, exposed by Darrow’s relentless questioning.

To correct the other most famous incident of the trial, Bryan did indeed drop dead of heart failure in Dayton—not dramatically on the courtroom floor (as fiction requires for maximal effect), but rather a week later, after stuffing himself at a church dinner. However, the most serious misunderstanding lies with the verdict itself, and the subsequent history of creationism.
Inherit the Wind
presents a tale of free inquiry triumphant over dogmatism. As an exercise in public relations, the Scopes trial may be read as a victory for our side. But the legal consequences could hardly have been more disastrous. Scopes was, of course, convicted—no surprises there. But the case was subsequently declared moot—and therefore unappealable—by the judge’s error of fining Scopes one hundred dollars (as the creationism statute specified), whereas Tennessee law required that all fines over fifty dollars be set by the jury. (Perhaps
sleepy little towns like Dayton never fined anyone more than fifty bucks for anything, and the judge had simply forgotten this detail of unapplied law.) In any case, this error provides a good argument against using “outside agitators” like Darrow as sole representatives in local trials. The fancy plaintiff’s team, lead by Darrow and New York lawyer Dudley Field Malone, included no one with enough local knowledge to challenge the judge and assure proper procedure.

Thus, Scopes’s conviction was overturned on a technicality—an outcome that has usually been depicted as a victory, but was actually a bitter procedural defeat that stalled the real purpose of the entire enterprise: to test the law’s constitutionality. In order to reach the appropriate higher court, the entire process would have to start again, with a retrial of Scopes. But history could not be rolled back, for Bryan was dead, and Scopes, now enrolled as a graduate student in geology at the University of Chicago, had no desire to revisit this part of his life. (Scopes, a splendidly modest and honorable man, became a successful oil geologist in Shreveport, Louisiana. He never sought any profit from what he recognized as his accidental and transitory fame, and he never wavered in defending freedom of inquiry and the rights of teachers.)

So the Tennessee law (and similar statutes in other states) remained on the books—not actively enforced,
to be sure, but ever-present as a weapon against the proper teaching of biology. Textbook publishers, the most cowardly arm of the printing industry, generally succumbed and either left evolution out or relegated the subject to a small chapter at the back of the book. I own a copy of the text that I used in 1956 at a public high school in New York City, a liberal constituency with no compunction about teaching evolution. This text,
Modem Biology
, by Moon, Mann, and Otto, dominated the market and taught more than half of America’s high school students. Evolution occupies only 18 of the book’s 662 pages—as chapter 58 out of 60. (Many readers, remembering the realities of high school, will immediately know that most classes never got to this chapter at all.) Moreover, the text never mentions the dreaded “E” word, and refers to Darwin’s theory as “the hypothesis of racial development.” But the first edition of this textbook, published in 1921, before the Scopes trial, featured Darwin on the frontispiece (my 1956 version substitutes a crowd of industrious beavers for the most celebrated of all naturalists), and includes several chapters treating evolution as both a proven fact and the primary organizing theme for all biological sciences.

This sorry situation persisted until 1968, when Susan Epperson, a courageous teacher from Arkansas, challenged a similar statute in the Supreme Court—and
won the long-sought verdict of unconstitutionality on obvious First Amendment grounds. (A lovely woman approached me after a talk in Denver last year. She thanked me for my work in fighting creationism and then introduced herself as Susan Epperson. She had attended my lecture with her daughter, who, as a graduate student in evolutionary biology, had reaped the fruits of her mother’s courage. I could only reply that the major thrust of thanks must flow in the other direction.)

But nothing can stop a true believer. The creationists regrouped, and came back fighting with a new strategy designed to circumvent constitutional problems. They had always honorably identified their alternative system as explicitly theological, and doctrinally based in a literal reading of the Bible. But now they expurgated their texts, inventing the oxymoronic concept of “creation science.” Religion, it seems, and contrary to all previous pronouncements, has no bearing upon the subject at all. The latest discoveries of pure science now reveal a factual world that just happens to correlate perfectly with the literal pronouncements of the Book of Genesis. If virtually all professionally trained scientists regard such a view as nonsensical, and based on either pure ignorance or outright prevarication, then we can only conclude that credentialed members of this discipline cannot recognize the cutting edge of their own
subject. In such a circumstance, legislative intervention becomes necessary. And besides, the creationists continued, we’re not asking schools to ban evolution anymore (that argument went down the tubes with the Epperson decision). Now we are only demanding “equal time” for “creation science” in any classroom that also teaches evolution. (Of course, if they decide not to teach evolution at all … well, then …)

However ludicrous such an argument might be, and however obviously self-serving as a strategy to cloak a real aim (the imposition of fundamentalist theological doctrine) in new language that might pass constitutional muster, two states actually did pass nearly identical “equal time” laws in the late 1970s—Arkansas and Louisiana. A consortium of the ACLU and many professional organizations, both scientific and religious, challenged the Arkansas statute in a trial labeled by the press (not inappropriately) as “Scopes II,” before Federal Judge William R. Overton in Little Rock during December 1981. Judge Overton, in a beautifully crafted decision (explaining the essence of science, and the proper role of religion, so well that
Science
, our leading professional journal, published the text verbatim), found the Arkansas equal-time law unconstitutional in January 1982.

The state of Arkansas, now back under the liberal leadership of Bill Clinton, decided not to appeal.
Another federal judge then voided the nearly identical Louisiana law by summary judgment, stating that the case had been conclusively made in Arkansas. Louisiana, however, did appeal to the U.S. Supreme Court in
Edwards v. Aguillard
, where, in 1987, we won a strong and final victory by a seven-to-two majority, with (predictably) Rehnquist and Scalia in opposition (Thomas, a probable third vote today, had not yet joined the court).

I testified at the Arkansas trial as one of six “expert witnesses” in biology, philosophy of science, and theology—with my direct examination centered upon creationist distortion of scientific work on the length of geological time and the proof of evolutionary transformation in the fossil record, and my cross-examination fairly perfunctory. (The attorney general of Arkansas, compelled by the ethics of his profession to defend a law that he evidently deemed both silly and embarrassing to his state, did a competent job, but just didn’t have his heart in the enterprise.)

As a group, by the way, we did not try to prove evolution in our testimony. Courtrooms are scarcely the appropriate venue for adjudicating such issues under the magisterium of science. We confined our efforts to the only legal issue before us: to proving, by an analysis of their texts and other activities, that “creation science” is nothing but a smoke screen, a meaningless and oxymoronic phrase invented as sheep’s clothing for the
old wolf of Genesis literalism, already identified in the Epperson case as a partisan theological doctrine, not a scientific concept at all—and clearly in violation of First Amendment guarantees for separation of church and state if imposed by legislative order upon the science curricula of public schools.

I can’t claim that the trial represented any acme of tension in my life. The outcome seemed scarcely in doubt, and we held our victory party on the second day of a two-week trial. But cynicism does not run strongly in my temperament—and I expect that when I am ready to intone my
Nunc Dimittis
, or rather my
Sh’ma Yisroel
, I will list among my sources of pride the fact that I joined a group of scholars to present the only testimony ever provided by expert witnesses before a court of law during this interesting episode of American cultural history—the legal battle over creationism that raged from Scopes in 1925 to
Edwards v. Aguillard
in 1987. (Judge Raulston did not allow Darrow’s experts to testify at the Scopes trial, and the Louisiana law was dismissed by summary judgment and never tried; live arguments before the Supreme Court last only for an hour, and include no witnesses.) It was, for me, a great joy and privilege to play a tiny role in a historical tale that featured such giant figures as Bryan and Darrow.

The Arkansas trial may have been a no-brainer, but many anecdotes, both comic and serious, still strike me
as illuminating or instructive. In the former category, I may cite my two favorite moments of the trial. First, I remember the testimony of a second-grade teacher who described an exercise he uses to convey the immense age of the earth to his students: he stretches a string across his classroom, and then places the children at appropriate points to mark the origin of life, the death of dinosaurs, and human beginnings right next to the wall at the string’s end. In cross-examination, the assistant attorney general asked a question that he later regretted: What would you do under the equal-time law if you had to present the alternative view that the earth is only ten thousand years old? “I guess I’d have to get a short string,” the teacher replied. The courtroom burst into laughter, evidently all motivated by the same image that had immediately popped into my mind: the thought of twenty earnest second-graders all scrunched up along one millimeter of string.

In a second key moment, the creationist side understood so little about the subject of evolution that they brought, all the way from Sri Lanka, a fine scientist named Chandra Wickramasinghe, who happens to disagree with Darwinian theory (but who is not an anti-evolutionist, and certainly not a young-earth creationist—a set of distinctions that seemed lost on intellectual leaders of this side). Their lawyer asked him, “What do you think of Darwin’s theory?” and
Wickramasinghe replied, in the crisp English of his native land, “Nonsense.” In cross-examination, our lawyer asked him: “And what do you think of the idea that the earth is only ten thousand years old?” “Worse nonsense,” he tersely replied.

On the plane back home, I got up to stretch my legs (all right, I was going to take a pee), and a familiar-looking man, sitting in an aisle seat of the coach section, stopped me and said in the local accent, “Mr. Gould, I wanna thank you for comin’ on down here and heppin’ us out with this little problem.” “Glad to do it,” I replied, “but what’s your particular interest in the case? Are you a scientist?” He chuckled and denied the suggestion. “Are you a businessman?” I continued. “Oh no,” he finally replied, “I used to be the governor. I’d have vetoed that bill.” I had been talking with Bill Clinton. In an odd contingency of history that allowed this drama to proceed to its end at the Supreme Court, Clinton had become a bit too complacent as boy-wonder governor, and had not campaigned hard enough to win reelection in 1980—a mistake that he never made again, right up to the presidency. The creationism bill, which he would surely have vetoed, passed during his interregnum, and was signed by a more conservative governor.