Gut in a Monkey Suit Walks into the Tennessee Supreme Court

“Lord, what fools these mortals be!”

-          A Midsummer Night’s Dream  III,2; Puck

“All the world’s a stage, and all the men and women merely players.”

-          As You Like It II, 7; Jaques

“Be not afraid of greatness. Some are born great, some achieve greatness, and others have greatness thrust upon them.”

-          Twelfth Night II,5; Maria, in a letter forged as Olivia, to Malvolio

This post required three of my favorite quotes from Shakespeare. As you may know, we are currently in the midst of the centennial of the Trial of the Century, otherwise known as the Scopes Monkey Trial, or The State of Tennessee v. John Thomas Scopes. While most people think of this test case as an epic trial court battle between Clarence Darrow and William Jennings Bryan, it also ended up in the Tennessee Supreme Court (289 S.W. 363 (Tenn. 1927)) after a Rhea County jury found John Thomas Scopes, a high school science teacher, guilty of violating the Butler Act, which forbade the teaching of Darwin’s theory of evolution in public schools.

The Supreme Court’s opinion yielded some interesting appellate results, which are still worth considering. While the Court rejected the defense’s four major arguments challenging  the constitutionality of the Butler Act, it nonetheless reversed the trial court’s judgment on a technicality. The jury had found Scopes guilty, but it did not assess a fine. Instead, the trial court judge assessed the minimum fine of $100 authorized by statute. The Constitution of Tennessee, article 6, section 14 required (and still requires) that:

 [n]o fine shall be laid on any citizen of this state that shall exceed fifty dollars, unless it shall be assessed by a jury of his peers, who shall assess the fine at the time they find the fact, if they think the fine should be more than fifty dollars.

Hence, the Supreme Court reversed Mr. Scopes’ conviction, as the $100 judge-assessed fine was outside the authority of the trial court to levy.

More intriguing, however, is the fact that the Supreme Court wrapped up its opinion by advising the Attorney General to enter a nolle prosequi for the “peace and dignity of the state.” The Court saw “nothing to be gained by prolonging the life” of what it called this “bizarre” case.  The jurists were no doubt aware of how the case had attracted a veritable circus of Bible salesmen, anti-evolutionists, journalists, and science enthusiasts to the small town of Dayton in eastern Tennessee.  

Thus, the Supreme Court agreed with the prosecution on principle, but yearned to return Dayton to normalcy.  That caused the Court to effectively issue an advisory opinion on what it hoped would happen.  Advisory opinions are not normally something appellate courts are supposed to issue.  State v. Brown & Williamson Tobacco Corp., 18 S.W. 3d 186, 192 (Tenn. 2000) (citing  Super Flea Mkt. v. Olsen, 677 S.W.2d 449, 451 (Tenn.1984).)

One hundred years ago, a man ran the streets of Dayton, Tennessee dressed as an ape, while someone else paraded a chimpanzee in children’s clothing. A person in a monkey suit and a monkey in a person suit. We can learn many lessons from legal history.   

[Read the TN Supreme Court’s full opinion here: Scopes v. State (Tenn. Sup. Ct.) - UMKC School of Law]