Scopes II: The Evolution of Construction in the Construction of Evolution

“Here will be an old abusing of God’s patience and the King’s English.”

-          The Merry Wives of Windsor I,4; Mistress Quickly, concerning the Frenchman, Dr. Caius

“God has given you one face, and you make yourselves another.”

-        Hamlet III,1; Hamlet to Ophelia

My thoughts on the Scopes trial are evolving.

Now that I have that out of my system:  I find the concurring opinion of Justice J. Chambliss in Scopes v. State, 289 S.W. 363 (Tenn. 1927), intriguing. Here, Justice Chambliss opined that the Butler Act, or the Tennessee Anti-Evolution Act of 1925, did not violate the Tennessee State Constitution’s directive to cherish education and science. He reasoned that the Act merely prohibited the materialist teaching that denied the divine origin of man’s creation as taught in the Bible, but did not specifically dictate the teaching of that same divine origin:

The teaching of all sciences may have full legitimate sway, with the restriction only that the teaching shall not convey a denial of man’s divine origin – God as his Creator.

Id. at 369

In other words, Justice Chambliss supported the majority opinion that the Butler Act should not be construed as promoting Biblical belief in schools, but rather as prohibiting any teaching that man’s origin lay in lower orders of animals as opposed to Biblical divinity.  With this interpretation applied, the Butler Act violated neither the Establishment Clause of the U.S. Constitution, nor the aforementioned directives in the Tennessee State Constitution.

Was this construction accurate though?

 Section I of the Butler Act read in part:

. . . [I]t shall be unlawful for any teacher in any of the universities, normal and all other public schools of the state . . . 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.

Scopes v. State, 289 S.W. 363, 363, fn 1 (Tenn. 1927).

The maxims of statutory construction guide courts to interpret statutes consistent with their plain meaning and the intent of the legislature. Both the majority opinion and the concurring opinion in Scopes emphasized this point. Interpreted plainly, the legislative intent of the Butler Act appeared to favor a specific religious viewpoint, which would have put the matter in unconstitutional peril.

But Justice C.J. Green, in his opinion for the majority, added a bracketed phrase to his construction of the statute!

. . . [I]t shall be unlawful for any teacher in any of the universities, normal and all other public schools of the state . . . to teach any theory that denies the story of the divine creation of man as taught in the Bible, and to teach instead [of the story on the divine creation of man as taught in the Bible] that man has descended from a lower order of animals.

Scopes v. State, 289 S.W. 363, 364 (Tenn. 1927) (emphasis added).

So according to the Scopes Court, the Act allowed the teaching of any theory a teacher desired, so long as it did not contradict or deny the idea of divine creation as put forth in the Bible. By adding this emphasis to their construction, the Court dodged the constitutional issue by interpreting the Act as not promotional of Biblical creationism, but rather as prohibitive of the direct contradiction thereof.

This fascinating piece of legal history shows the nuanced ways that appellate courts get to results, using the maxims of interpretation of statutes to support their opinion.  As advocates, we should help them do this in a way that gets us the result we want for our clients, within the bounds of the law and ethical advocacy. 

I must admit, the issues raised by this Supreme Court opinion seem as relevant today as they were nearly a hundred years ago.

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