Clarence Darrow: Attorney for the Damned (63 page)

W
illiams Jennings Bryan resigned as secretary of state in 1915 to protest President Wilson’s decision to take sides against Germany in
World War I. It was the most prestigious office that Bryan ever held and he had schemed to get it, but he was appalled at the brutality of warfare in the industrial age. He moved to Florida, where he made a fortune in the real estate boom, switched his focus to religion, and reemerged in the 1920s as the country’s foremost critic of
Charles Darwin’s theory of evolution.
¹

Bryan was a devout Christian, and his populist beliefs went strongly against the notion of “survival of the fittest,” which had been cited by the robber barons to justify the injustice of their era. He saw natural selection as “the law of hate—the merciless law by which the strong crowd out and kill off the weak.” And his wartime studies persuaded him that German militarism, inspired by the teachings of Darwin and Nietzsche, was responsible for the carnage. He followed the Leopold and Loeb case closely, took note of their debt to Nietzsche, and added the death of Bobby Franks to the toll.
²

Bryan’s alarm found a ready audience. In many Baptist, Methodist, and Pentecostal congregations in that broad swath of the southern and western United States known as the Bible Belt, the faithful yearned for a return to simple verities. There was a feeling that something was wrong, that the truths of their childhood had been taken from them. These self-anointed “fundamentalists” believed that the Bible was the Rock of Ages—written by God and given to man, an infallible guide to good behavior and the path to paradise. And in Genesis they found a story of creation, and man’s place at the center of the universe, that made no mention of apelike ancestors.

Bryan had joined with the religious conservatives in support of Prohibition. Now he toured the country alerting crowds to “the Menace of Darwinism.” He wrote newspaper articles, visited colleges, and addressed state legislatures, urging them to ban the teaching of evolution in the public schools. Critics found his moral outrage selective. Bryan had always been cool to the issue of civil rights, and defended the Ku Klux Klan from attacks at the 1924 Democratic convention. “How petty, mean and contemptible Bryan … is,”
Eugene Debs wrote Darrow, the following summer. “This shallow-minded mouther of empty phrases, this pious canting mountebank, this prophet of the stone age.”

Darrow was always watchful of Bryan, and composed an open letter that was printed in the
Chicago Tribune
in the summer of 1923. “I have … followed Mr. Bryan’s efforts to shut out the teaching of science from the public schools,” Darrow wrote. “A few questions to Mr. Bryan and the fundamentalists if fairly answered might serve the interests of reaching the truth.” He followed with a questionnaire that listed Old Testament tales—the garden of Eden, Noah’s ark, the whale and Jonah, and others—and asked Bryan if he believed they were literally true. Some of Darrow’s queries were rooted in science (“Are there not evidences in writing and hieroglyphics … which show that man has been on the earth more than 50,000 years?”), but others were sarcastic (“Did God curse the serpent for tempting Eve and decree that thereafter he should go on his belly? How did he travel before that?”). Bryan declined the bait. “I am not worried about an atheist” like Darrow, he told reporters.
³

T
ENNESSEE EMERGED AS
the battleground for the anti-evolution cause in early 1925. A rural state representative named
John Washington Butler, the clerk of the Round Lick Association of Primitive Baptists, introduced a bill making it illegal for public schools “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.”

Folks like Butler bridled when the public schools used textbooks that
challenged their faith in Genesis. One of the nation’s most popular biology texts—
A Civic Biology
by
George W. Hunter—was in use in Tennessee high schools. Later generations would find much to deplore in Hunter’s claim that the Caucasian race was “the highest type of all,” or in his argument that progeny of feeble-minded and “immoral” families are “parasites” who should be kept from breeding. But that was not what bothered the fundamentalists. They objected to the section on evolution.

“Geology teaches that millions of years ago, life upon the earth was very simple, and that gradually more and more complex forms of life appeared,” the text said. “The group of mammals which includes the monkeys, apes and man we call the primates.” The fundamentalists wanted the mighty Lord of Genesis in the classroom, not monkeys. “Man’s spiritual nature is not even referred to, and the child would very readily get the idea that the proof of man’s connection with the monkey was complete and the Bible record false,” Bryan said.

The cocklebur vote had shown its clout in recent years: freethinking professors had been expelled from the faculty of the University of Tennessee. Butler’s legislation passed the Tennessee House with little fanfare. The
Nashville Banner
noted how the representatives that day “covered a wide range of territory, from a local measure to prohibit suck-egg dogs from running at large … to a general measure prohibiting the teaching of evolution.” The House action stirred a few editorial writers to object, but the Senate fell in line. The bill was signed into law by Governor
Austin Peay, who, with atrocious misjudgment, pronounced it a matter of no consequence. “Probably the law will never be applied,” he said.
⁴

A
FTER DEFENDING
Leopold and Loeb, Darrow had spent much of the fall of 1924 and the early months of 1925, as he liked to say, loafing. At the end of September he made a sentimental trip to Kinsman, where the local bar association, apparently not recalling his aversion to poultry, held a chicken dinner in his honor. Judges and childhood friends joined a crowd of eighty people, and Darrow spoke for about an hour, of how fate and chance had taken him from the Western Reserve to national celebrity.
⁵
He remembered his first case in court, which was held in the shadow of a coffin that hung on the wall awaiting the demise of its farsighted owner, the marvelously named
Riverious Bidwell. Darrow told how his
legal practice in Chicago had been transformed by his fascination with criminal law. There was little to keep an attorney awake at night when the stakes were merely credit or property, he said. But in criminal law “you are dealing with flesh, blood, reputations, shame, disgrace, honor” and with “wives, fathers, mothers and children.” It was “vital” work, though “wearing on your nerves and sympathies,” he said. “You must learn to endure criticism and to be callous to spiteful remarks.”
⁶

The Leopold and Loeb case had added immensely to his fame. Darrow was traveling widely, speaking to large audiences. He presided at a liberal campaign rally that brought ten thousand to Madison Square Garden in New York in 1924.
⁷
He decried capital punishment in debates before audiences of three thousand at the Metropolitan Opera House and seven thousand in St. Petersburg. He spoke on Prohibition in New York, on crime in Philadelphia and Miami, and on capital punishment in Montreal and New Orleans.

Mary came to see Darrow in New York and found his room thronged with admirers. “The incense was burning,” she told her diary. “The Great One was enveloped in praise.” He was regularly in New York alone, and often they would meet at his hotel. From Florida, where he and Ruby fled to escape a Chicago winter, Darrow wrote to her: “There is enough of me left to remember you … as long as I can remember anyone and with all the love of the old days.”
⁸

I
N EARLY
M
AY
of 1925, the American Civil Liberties Union issued a press release decrying the signing of the Butler Act and offering to defend any teacher prosecuted for teaching evolution. “We are looking for a Tennessee teacher who is willing to accept our services in testing this law,” the ACLU announced. “Distinguished counsel have volunteered their services. All we need now is a willing client.” On May 4, the
Chattanooga Times
reported how the ACLU was “agitating for a test case.” A few miles up the road, in the valley town of Dayton, the story caught the eye of
George Rappleyea, a spirited thirty-one-year-old engineer with bushy hair and Coke-bottle glasses. He was a transplanted Yankee worried about the lingering economic torpor brought on by the closing of the local ironworks and, truth be told, missing the razz and dazzle of New York. Why not take the ACLU up on its offer? Rappleyea asked a group of fellow idlers
gathered in wire-backed chairs around a wood-topped table at Robinson’s Drug Store (“Stationery—Soda—Cigarettes—Kodaks—Candies”) the following afternoon. Why not stage a showdown in Dayton? It would garner their town some lucrative attention. At the very least it would liven up the summer. Little did they know.

From its inception, the Scopes trial was conceived and promoted and staged as a circus stunt. No one presumed that a Dayton jury would have the final say on the matter. All agreed that
John Scopes, a twenty-four-year-old high school science teacher who was summoned to Robinson’s pharmacy from a nearby tennis court and coaxed to stand trial, would be found guilty—giving the ACLU a martyr whose conviction it could take to a higher court. The local constable, prosecutors, and superintendent of schools were among those sipping Coca-Cola and working on the scheme at the drugstore, for Dayton was that kind of small town.
F. E. Robinson was not just the druggist, but doubled as the textbook vendor who supplied the schools with
A Civic Biology
. His sales were made easier by the fact that he also chaired the Rhea County board of education, and so purchased the texts from himself.

“You have been teaching ’em this book?” Rappleyea asked Scopes as they paged through a volume of
A Civic Biology
.

“Yes,” said Scopes.

“Then you’ve been violating the law,” said Robinson.

Scopes agreed to take the fall. “Justice of the Peace will find him guilty and he will appeal,” Rappleyea promised in a telegram to the ACLU.

Yet lawyers being what they are—constitutionally combative and not much caring to lose in the glare of public attention—the staged skirmish evolved into a genuine struggle and then, to Dayton’s delight, a national spectacle. The schemers had originally presumed that ol’ Judge Godsey, a corpulent retired jurist, would defend Scopes. But then Bryan agreed to lead the prosecution. And that compelled Darrow to shoulder his way onto the Scopes defense team.
⁹

T
HE SIXTY-FIVE-YEAR-OLD
B
RYAN’S
once glorious and vibrant baritone was diminished by age, and the tousled head of hair of his youth had thinned to a monkish fringe. He was slowed by diabetes. But he still had the fight of a snapping turtle, a species that, with the dome of his forehead,
beak nose, and broad mouth, he somewhat resembled—especially when, in deference to the temperature, he took to wearing a collarless shirt.

It would be, Bryan prophesied, “a duel to the death” between Christianity and “this slimy thing, evolution.” He stepped off the train—the Royal Palm Limited from Miami made an unscheduled stop for him—at the Dayton depot like a figure out of Kipling, with a pith helmet and a leather satchel. Hundreds of people waited and, in a caravan of automobiles, paraded him through town. He spoke the next night at a mountaintop retreat to an audience gathered on a lawn, as thunder growled and bolts of lightning split the sky behind him. At a dinner at the Hotel Aqua, hosted by the Dayton Progressive Club, Bryan announced his plans to campaign for an amendment to the U.S. Constitution to prohibit the teaching of Darwinism in any public school. He leaned across the table to where a stagestruck Scopes was sitting and told the teacher: “You have no idea what a black and brutal thing this evolution is.”

He also displayed his prodigious appetite: “John, are you going to eat your side dishes?” he asked and helped himself to the defendant’s corn and potatoes.
¹⁰

With Bryan in the fray, “Darrow was keen to be included,” Scopes remembered. “Deeply religious people he was afraid of because he said the next step was fanaticism,” Mary recalled. “With fanaticism came persecutions and abridgement of liberty.”

Darrow had discussed the case with the liberal lawyers Arthur Garfield Hays and
Dudley Malone, the journalist H. L. Mencken, and others. He feared, at first, that the Civil Liberties Union would prefer a counsel who wasn’t such a lightning rod for strife. Indeed, the ACLU hoped that a respectable lawyer like former New York governor
Charles Evans Hughes would present a “quiet, strictly legalistic” case, Scopes recalled.

Mencken wanted none of that. He was, like Darrow, a pronounced libertarian and religious skeptic. In addition to his newspaper work for the
Baltimore Evening Sun
, Mencken was editor of a hip, style-setting magazine, the
American Mercury
. His slashing copy helped make the
Scopes case a national phenomenon. “Bryan … is a bit mangey and flea-bitten, but by no means ready for his harp,” Mencken wrote. “The fellow is full of such bitter, implacable hatreds that they radiate from him like heat from a stove. He hates the learning that he cannot grasp. He hates
those who sneer at him. He hates in general, all who stand apart from his own pathetic commonness. And the yokels hate with him, some of them almost as bitterly as he does himself.