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Forty-Five Years after Epperson, Part 1

Susan Epperson

Today, November 12, 2013, is the forty-fifth anniversary of the Supreme Court’s decision in Epperson v. Arkansas, which struck down a state law prohibiting the teaching of evolution in Arkansas’s public schools. The Arkansas law provided:

It shall be unlawful for any teacher or other instructor in any University, College, Normal, Public School or other institution of the State, which is supported in whole or in part from public funds derived by State and local taxation to teach the theory or doctrine that mankind ascended or descended from a lower order of animals and also it shall be unlawful for any teacher, textbook commission, or other authority exercising the power to select textbooks for above mentioned educational institutions to adopt or use in any such institution a textbook that teaches the doctrine or theory that mankind descended or ascended from a lower order of animals.

Anyone found guilty of violating the law would be fined up to $500—a sizable sum in 1928, when the law was enacted, equivalent to almost $7000 today—and be terminated from the school or commission position he or she held.

Uniquely among the Scopes-era antievolution laws, the Arkansas law was the product of a popular initiative. It wasn’t the preferred strategy. In Arkansas, antievolution activity was led by professional Baptists—J. S. Compere, the editor of the Baptist Advance, later joined by Ben M. Bogard, the editor of the Baptist and Commoner—and in 1926, the Arkansas Baptist State Convention resolved to ask the state legislature to ban the teaching of evolution. At Bogard and Compere’s behest, Representative Astor L. Rotenberry (representing Pulaski County, where the capital Little Rock is situated) introduced a bill in 1927 providing, “it shall be unlawful for any teacher ... 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 descended from a lower order of animals, or any other source than divine creation.” The emphasized phrase also occurred in the Butler Act in Tennessee.

Rotenberry’s bill was reported unfavorably from the Education Committee, but then passed the House of Representatives on a close vote, with two legislators changing their votes at the last minute. But the Senate refused to take a roll call vote on the bill, instead tabling it. The American Association of University Professors chapter at the University of Arkansas took a firm stand against the bill, describing it as “of very doubtful constitutionality” and arguing that “it is legislation in favor of the fundamentalists and against liberals.” Perhaps more influentially, the cowboy humorist Will Rogers remarked, “I don’t know why some of these states want to have their ancestry established by law. There must be a suspicion of a doubt somewhere.” (Rogers was consistently, if genially, opposed to the antievolution crusade: creationists “want it on record that they come from mud only!” he once quipped.) Undaunted, Rotenberry decided to try a new avenue.

One of the hallmarks of the Progressive Era was the political innovation of initiatives and referendums, by which the electorate could vote on legislation directly. (Arkansas amended its state constitution to allow initiative measures in 1910; during the campaign to adopt the practice, the proponents brought in a national political figure to endorse it: none other than William Jennings Bryan, who traveled the state in a specially chartered train to give whistle-stop speeches urging the voters to approve the amendment.) Thus Rotenberry announced that he would take his case to the people. Rotenberry revised the language of the bill, and a petition to place the revised antievolution measure in the November 1928 election was circulated. In the meantime, Bogard announced, “Every legislator who voted against the bill will be black-listed, and the evolution issue will enter every race from governor to constable in subsequent elections.”

Bogard’s electoral hopes were unfulfilled, spectacularly so in Rotenberry’s case. Rotenberry wanted to become the state’s attorney general, and ran on a platform in which his promise to enforce the expected ban on teaching evolution was conspicuous. But he lost the primary. Bogard’s hopes for the petition, however, were fulfilled, in part because of his organizational savvy. He formed the American Antievolution Association, which solicited membership from all concerned citizens—except “Negroes and persons of African descent, Atheists, Infidels, Agnostics, such persons as hold to the theory of Evolution, habitual drunkards, gamblers, profane swearers, despoilers of the domestic life of others, desecrators of the Lord’s Day and those who would depreciate feminine virtue by vulgarly discussing sex relationship.” The response was swift; by June 1928, enough signatures were garnered for the measure to appear on the November ballot.

There was opposition to the measure, to be sure, and not, or not entirely, from agnostic Negro gamblers. Charles Lee Smith, the president of the American Association for the Advancement of Atheism, chose to oppose the antievolution initiative by displaying a placard reading “Evolution is true. The Bible is a lie. God’s a ghost” in a storefront, from which he distributed free atheist literature, in Little Rock; he was charged with blasphemy (and indeed is supposed to be the last person charged with that crime in the United States). Less dramatically, the Committee Against Act No. 1 (as the measure would be known on the ballot) was organized to oppose the bill. The committee ran advertisements emphasizing the scientific consensus on evolution, the compatibility of evolution and religion, and, especially, the likelihood that Arkansas would be subjected to the same kind of ridicule that Tennessee was if it were to enact a similar law.

“Evidently aware of their own strength, supporters of the initiative advertised very little,” wrote George E. Webb in The Evolution Controversy in America (1994). Insofar as they did, they were unmoved by the Committee Against Act No. 1’s arguments. One advertisement quoted by Webb addressed both the compatibility of evolution and religion—“all atheists favor evolution. If you agree with atheism, vote against Act No. 1. If you agree with the Bible, vote for Act No. 1”—and the likelihood of ridicule—“The Gazette said Russian Bolshevists laughed at Tennessee. ... True, and that sort will laugh at Arkansas. Who cares?” (I didn’t track down the Gazette editorial to which the advertisement refers, but Russian Bolshevists indeed used the Scopes trial for propaganda purposes: Stalin, for example, bragged that a Scopes trial in the Soviet Union would have been impossible because “the Party pursues a policy of defending science in every way.”)

When the November election was held, Act No. 1 passed overwhelmingly, by a vote of 108,991 to 63,406. The state superintendent of public instruction said that the act would probably not have much effect, since the state-approved texts already complied with its provisions, although there was concern expressed about whether dictionaries, encyclopedias, and the like that defined evolution would be in violation of the law. Bogard, for his part, opined that merely discussing evolution in class would be permissible so long as it was not presented as true. And that, more or less, was that. There was a brief revival of interest in 1937, and again in 1959, and yet again in 1965, when there were unsuccessful attempts in the legislature to repeal the act. The last of these, however, inspired the Arkansas Education Association to consider challenging the act in court. And that will be the topic of part 2.