Washington Lawyer - January/February 2025 - 38

WORTH READING
Keeping the Faith: God,
Democracy, and the Trial
That Riveted a Nation
Brenda Wineapple
Random House, 2024
Review by Diane Kiesel
R
ight versus Left. The injection
of religious fundamentalism
into the American body
politic. A deeply divided
populace battling it out over the
great social and moral issues of the
day with no room for compromise.
A reader could
mistake Brenda
Wineapple's Keeping
the Faith for a
study of the 2024
presidential campaign.
Instead, it
is a new look at a
century-old iconic
event in history:
the Scopes Monkey
Trial in Dayton,
Tennessee.
By subtly revealing
the parallels,
Wineapple has brilliantly breathed life into this
old story, making it relevant to people today.
What many of us know about this trial we
learned from Hollywood, where cinematic titans
Spencer Tracy, Fredric March, and Gene
Kelly played characters closely resembling defense
attorney Clarence Darrow, prosecutor
William Jennings Bryan, and journalist H. L.
Mencken in Stanley Kramer's 1960 movie, Inherit
the Wind.
The film version is sort of true. A young high
school teacher was prosecuted in a one-horse
town for teaching evolution in violation of a
new Tennessee law, the Butler Act. Darrow
swooped in from the Big City to defend him
and put a buffoon-like Bryan on the witness
stand as an expert in the Bible, humiliating him
in the process. Mencken, writing for the Baltimore
Sun, recorded the spectacle with a cynical
eye and a poison pen.
38 WASHINGTON LAWYER
* JANUARY/FEBRUARY 2025
But the trial was more than great entertainment;
it was a microcosm for the sour mood of
the country. World War I, which left nearly 10
million soldiers dead around the globe and
scores of widows and orphans, was supposed
to make the world " safe for Democracy. " It
didn't. Prohibition was becoming a failed experiment,
and the Jazz Age prosperity enjoyed
by some was leaving many behind, particularly
in rural Tennessee. No wonder many turned to
the Bible for comfort.
Darrow, who was 68 when the trial began,
looked a decade older and was no knight in
shining armor. His reputation had been tarnished
by a pair of trials in 1912 and 1913 in
which he was the defendant, indicted for attempting
to bribe jurors in a case where he'd
represented the McNamara brothers charged
with dynamiting the Los Angeles Times and killing
21 people. Darrow was acquitted in the first
trial, and the jury was hung in the second, leaving
him deeply in debt and his Chicago law
practice in shambles.
Bryan published a newspaper, The Commoner,
which was his nickname. He was considered a
progressive early in his career, supporting an income
tax, votes for women, and a reduction of
tariffs. (History would look less kindly on Bryan's
anti-Semitism, Bible thumping, and enthusiasm
for Prohibition.) He was a three-time Democratic
nominee for president - in 1896, 1900, and
1908. At 65, he was suffering from poorly managed
diabetes and would die in his sleep less
than a week after the trial ended. " God aimed
at Darrow, missed him, and hit Bryan instead, "
Mencken sneered.
Overweight, cigar-chomping, cynical Mencken
was no handsome, genial Gene Kelly. " My prejudices
are innumerable and often idiotic, " he
boasted. Nor was John Scopes some hapless
high school teacher who inadvertently stumbled
into the public eye by quietly teaching
evolution. The American Civil Liberties Union
had advertised in local Tennessee newspapers
for a teacher willing to bring a test case of the
new law, and Scopes, recently out of college
with just one year of teaching under his belt,
rose to the challenge.
The member of the defense team overshadowed
by Darrow and Bryan was the urbane,
stylish New York lawyer Dudley Field Malone.
His flawless - but losing - argument to the
court to allow expert testimony about the science
of evolution was so moving that even the
Fundamentalists cheered.
" We are ready, " Malone began. " We feel we
stand with progress. We feel we stand with science.
We feel we stand with intelligence. We
feel we stand with fundamental freedom in
America. We are not afraid, " he argued. " Where
is the fear? We meet it. Where is the fear? We
defy it. We ask Your Honor to admit the evidence
of the scientists as a matter of correct
law, and a matter of sound procedure, and a
matter of justice to the defense in this case. "
After a moment of stunned silence, " applause
rocked the courtroom, " writes Wineapple. Even
Bryan was impressed, telling Malone, " Dudley,
that was the greatest speech I have ever heard. "
Wineapple is in no hurry to get to the actual trial
that began on July 10, 1925; the courtroom
doors don't open until page 225. The verdict
was a foregone conclusion. There was no
doubt Scopes violated the law; the jury convicted
in nine minutes, and the judge imposed
the minimum $100 fine. But it was the showdown
between Darrow and Bryan that guaranteed
this trial's place in legal history.
When the trial was moved outdoors one day to
escape the courthouse's oppressive heat, Darrow
put Bryan on the stand under a tree as a
Bible expert, and Bryan happily accommodated
him, oblivious to the trap he was stepping into.
Bryan claimed to have studied the Bible for 50
years and insisted to his Fundamentalist followers
that each word in it was true. He withstood
cross-examination about the flood and Jonah
and the whale, but when Darrow asked him if
God created the earth in six days, Bryan stumbled.
" I
do not think they were twenty-four-hour
days, " Bryan replied. " My impression is they
were periods. " And with that, the Great Commoner
was unmasked as a fraud; he did not interpret
the Bible literally and demonstrated
that it was absurd to do so. Therefore, no religious
obstacle barred the study of evolution.
Scopes became a geologist and spent his life
out of the public eye. But in 1967, he published
a memoir. In it, he wrote: " Liberty is always under
threat and it literally takes eternal vigilance
to maintain it. "
Diane Kiesel is a retired judge of the New York
Supreme Court, adjunct professor of law, and
author.
Washington Lawyer - January/February 2025

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