Editing Scopes trial (section)

== Appeal to the Supreme Court of Tennessee ==

Scopes's lawyers appealed, challenging the conviction on several grounds. First, they argued that the statute was overly vague because it prohibited the teaching of "evolution", a very broad term. The court rejected that argument, holding:
<blockquote>Evolution, like [[Prohibition in the United States|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. This is the popular significance of evolution, just as the popular significance of prohibition is prohibition of the traffic in intoxicating liquors. It was in that sense that evolution was used in this act. It is in this sense that the word will be used in this opinion, unless the context otherwise indicates. It is only to the theory of the evolution of man from a lower type that the act before us was intended to apply, and much of the discussion we have heard is beside this case.</blockquote>

Second, the lawyers argued that the statute violated Scopes' [[constitutional right]] to [[free speech]] because it prohibited him from teaching evolution. The court rejected this argument, holding that the state was permitted to regulate his speech as an employee of the state:
<blockquote>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.</blockquote>

Third, it was argued that the terms of the Butler Act violated the [[Tennessee State Constitution]], which provided that "It shall be the duty of the [[Tennessee General Assembly|General Assembly]] in all future periods of this government, to cherish literature and science." The argument was that the theory of the descent of man from a lower order of animals was now established by the preponderance of scientific thought, and that the prohibition of the teaching of such theory was a violation of the legislative duty to cherish science. The court rejected this argument,<ref>''Scopes v. State'', 154 Tenn. 105, 1927</ref> holding that the determination of what laws cherished science was an issue for the legislature, not the judiciary:
<blockquote>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.</blockquote>

Fourth, the defense lawyers argued that the statute violated the provisions of the Tennessee Constitution that prohibited the establishment of a state religion. The Religious Preference provisions of the Tennessee Constitution (Section{{nbsp}}3 of Article{{nbsp}}I) stated, "no preference shall ever be given, by law, to any religious establishment or mode of worship".<ref>The [[Establishment Clause]] of the [[First Amendment to the United States Constitution]] was not, at the time of the ''Scopes'' decision in the 1920s, deemed applicable to the states. Thus, Scopes' constitutional defense on establishment of religion grounds rested—and had to rest—solely on the state constitution, as there was no federal Establishment Clause protection available to him. ''See'' [http://www.law.umkc.edu/faculty/projects/ftrials/scopes/statcase.htm Court's opinion] {{Webarchive|url=https://web.archive.org/web/20110128231809/http://www.law.umkc.edu/faculty/projects/ftrials/scopes/statcase.htm |date=January 28, 2011 }}. ''See generally'' [[Incorporation doctrine]] and ''[[Everson v. Board of Education]]'' (a seminal U.S. Supreme Court opinion finally applying the Establishment Clause against states in 1947).</ref>

Writing for the court two sittings and one year after receiving the appeal,<ref>{{Cite magazine |date=1927-01-24 |title=Education: Bizarre |language=en-US |magazine=Time |url=https://content.time.com/time/subscriber/article/0,33009,786708,00.html |access-date=2023-01-14 |issn=0040-781X}}</ref> Chief Justice [[Grafton Green]] rejected this argument, holding that the Tennessee Religious Preference clause was designed to prevent the establishment of a state religion as had been the experience in [[Church of England|England]] and [[Church of Scotland|Scotland]] at the writing of the Constitution, and held:
<blockquote>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.</blockquote>

Further, the court held that while the statute ''forbade'' the teaching of evolution (as the court had defined it) it did not ''require'' teaching any other doctrine and thus did not benefit any one religious doctrine or sect over others.

Nevertheless, having found the statute to be constitutional, the court set aside the conviction on appeal because of a [[legal technicality]]: the jury should have decided the fine, not the judge, since under the state constitution, Tennessee judges could not at that time set fines above $50, and the Butler Act specified a minimum fine of $100.<ref name="statcase">See Supreme Court of Tennessee [http://www.law.umkc.edu/faculty/projects/ftrials/scopes/statcase.htm John Thomas Scopes v. The State] {{Webarchive|url=https://web.archive.org/web/20110128231809/http://www.law.umkc.edu/faculty/projects/ftrials/scopes/statcase.htm |date=January 28, 2011 }}, at end of opinion filed January 17, 1927. The court did not address the question of how the assessment of the minimum possible statutory fine, when the defendant had been duly convicted, could possibly work any prejudice against the defendant.</ref>

Justice Green added a totally unexpected recommendation:
<blockquote>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 that 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.</blockquote>

Attorney General L. D. Smith immediately announced that he would not seek a [[retrial]], while Scopes' lawyers offered angry comments on the stunning decision.<ref>''The New York Times'' January 16, 1927: 1, 28.</ref>

In 1968, the [[Supreme Court of the United States]] ruled in ''[[Epperson v. Arkansas]]'' 393 U.S. 97 (1968) that such bans contravene the [[Establishment Clause of the First Amendment]] because their primary purpose is religious.<ref name="Linder Introduction" /> Tennessee had repealed the Butler Act the previous year.<ref>{{cite web|url=http://www.todayinsci.com/S/Scopes_John/ButlerActRepeal.htm|title=Butler Act Repeal – Tennessee House Bill No. 48 (1967)|work=todayinsci.com}}</ref>