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100 years after the famous Scopes "Monkey" Trial, the battle over the separation of church and state in American public life is as heated as ever. Brad is joined by Dan Mach, director of the ACLU’s Program on Freedom of Religion and Belief, to discuss the enduring legacy of the Scopes trial and its modern-day echoes in courtrooms and classrooms across the country.
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100 years ago, America endured what became its most famous court trial.
The Scopes trial in Tennessee has become a symbol of modernism versus religion, of science versus superstition.
Many of you learned about it in school, but today, 100 years later, we are still at the crossroads of what that trial represented.
The Sculpts trial was never as simple as it was made out to be.
It was never a matter of religion versus modernity or superstition versus data.
But today we face a critical juncture.
when it comes to our laws and policies, the separation of church and state, and our public authorities.
There are cases before the Supreme Court now, and there have been recently, about allowing private Catholic schools to be funded with public money.
We have parents claiming that their students should be let out of certain lessons because they include discussion of LGBT characters or historical personas.
In essence, the lessons of the Scopes trial remain with us.
And the battles for a public square that are fair for everybody are as hot as they were in that...
Today I speak to Daniel Mack, who's the director of the ACL program on freedom of religion and belief.
He is experienced leading a wide range of religious liberty litigation, advocacy, and public education efforts across the country.
And today he joins me to talk about what happened a century ago and how we are still fighting those battles today.
I'm Brad O'Neeshi, author of Preparing for War and the founder of Access Muni Media.
And this is Straight White American Jesus.
Dan, thanks for joining me..
Thanks a lot for having me.
As I've just mentioned to everybody, you really are focused at the ACLU on religion and belief and every facet of that.
And we're going to talk about several dimensions, I think, of American religions here today.
But the focus is really the fact that we're at the hundred year mark of the famous Scopes trial.
And I think there's a lot of people listening who grew up in religious contexts where they might have learned about the Scopes trial.
A lot of us learned about it in school.
So a couple of things I want to do.
I want to get into a couple of specifics, some dimensions of that trial, but I want to also just make sure that we kind of have recently been at the Supreme Court that are about the imposition of religion on other people.
So here we go.
Everyone listening is like, oh, scopes trial.
I remember that.
1925.
You know, it's a searing hot Tennessee summer.
We're putting a young high school teacher on trial because he was teaching evolution.
What happened next?
What did I get wrong?
It's like it was almost yesterday and I did 25.
This is one of the most famous trials in American history and certainly one of the most famous cases that the ACLU has ever had.
This was essentially a challenge, as you said, to a law that was passed in 1925 in Tennessee that banned the teaching of evolution, made it a crime to teach evolution, in effect.
And the ACLU, among others, sought out a test case and This teacher, Scopes, young teacher in Dayton, Tennessee, volunteered.
one small little fact is it's not clear that he actually taught evolution, but everyone agreed that he did.
And the book that he would have used included an evolution section.
So he had no problem saying I've taught it or I'm at a minimum planning to teach it.
And this whole plan was to test the constitutionality of this law to suggest that this is a law that violates the First Amendment, the separation of church and state specifically that is protected by the establishment clause of the first amendment and the the plan was to challenge this law all the way up to the u.s supreme court the trial itself was quite the spectacle, and I'm sure we could talk a bit more about that.
It was really a circus.
It was a circus invited by the town.
I'm not sure they were so happy with the national attention that they got from it, because a fair amount of it was unwelcome, certainly by the end of the trial.
But the case never made it to the U.S. Supreme Court.
He was convicted.
in the trial court.
Again, everyone agreed on that.
Even the defense side said, okay, he did it.
Let's convict him and move on to the appeal.
The conviction was later overturned in the state courts on a technicality.
So it never made it.
Never made it up to the U.S. Supreme Court.
There's so many things that we could spend the next three hours talking about scopes.
You know, if people read about the trial, it really is this like blaring hot Tennessee summer.
There's no air conditioning.
Clarence Darrow, this incredibly famous Northeast New York lawyer, comes in and tries the case against William Jennings Bryan, the failed presidential candidate.
Darrow calls Brian to the stand which was this genius move William Jennings Brian dies like this is The traditional lessons from Scope are that the modernists, quote unquote, those who would like evolution to be taught in schools are the losers in court, but the winners in American society that their view and the superstitious backward,
you know, pre-modern understanding of what should be taught in science classes in the United States lost.
The traditional lesson is also that this humiliated Christian fundamentalists and, you know, humiliated them so much that they retreated into their their own subculture and didn't peak out until the 1960s.
I think a lot of scholarship has shown that not to be true and Matthew Avery Sutton and others have really convinced us otherwise.
But I do want to stay on some of these themes and those are the themes of religion and science, of modernity versus something else, of those who would like our science curricula and school curricula to be made for everyone and not just for some.
Those resound today and the debates, the culture wars that were at play in the Scopes trial have never gone away.
I know we'll talk in a minute about how those binaries are not fair and they actually are reductive and all of that.
But the more things change, the more they stay the same.
Are you seeing modern-day Scopes trials, modern-day Scopes frameworks as part of the current political and judicial moment of the united states in general unfortunately yes absolutely we are seeing modern day versions of these battles play out and as you mentioned that the binaries don't quite map on to to what happened there but but some version of those binaries persists today.
And this is coming up in so many areas.
we could focus exclusively on schools.
First of all, on the evolution issue itself, this is something...
That battle has gone on over the course of a number of cases for many years since 1925.
And the anti-evolution side essentially has not won any of them.
So that one is pretty much a clear, bright line as far as the law goes.
The constitutional rules are quite clear.
and have been for well over half a century that religious doctrine can't be taught as truth in public schools, even when it masquerades as science.
And so we are still, even on this very issue of creationism and evolution in public schools, we're still seeing battles.
But beyond that, as you alluded to, there is a great deal of litigation right now over efforts, largely state efforts, to impose religion and one particular set of religious beliefs.
on all public students, all public school students.
This is popping up in a variety of ways, including, among other things, laws that require the posting of the Ten Commandments in every single public school classroom.
There are three laws that are being challenged in court right now that were involved in those challenges.
Louisiana, Texas, and Arkansas all have passed laws requiring the posting of a specific state-authored version of the Ten Commandments in every public school classroom.
That's just one of many examples.
were seeing a push to get more school prayer by school officials, school chaplains in public schools.
And there was even a situation that the Supreme Court dealt with this past term, not too long ago, where there was an effort to approve a So charter schools are essentially a different form of public schools.
State laws treat them that way, call them public schools.
And so the normal public school rules should apply.
And yet, the state of Oklahoma actually tried to get a Catholic public school approved.
Let's talk about that case.
We've talked about it on this show before, and my colleague Andrew Seidel's talked about it over at One Nation Indivisible.
But there really is a lot at stake here.
And so let me ask the question this way.
I am somebody who says, look, yes., they would like to have a charter Catholic school in Oklahoma.
They would teach Catholic doctrine as the truth.
They would have school prayer.
There would be all kinds of things involved in the Catholic nature of this school.
But it's a charter school and everybody can just choose where to send their kids.
What does this have to do with scopes?
How is this the imposition of religion on Oklahomans or on Oklahoma school students?
Isn't this just a matter of like, oh, I chose to send my kids there, but you choose to send your kids there?
What's the big deal?
Sure, that might be a better argument if the charter school were really a private school and the Supreme Courourt has developed a line of cases about when private entities, including private religious schools, are entitled to participate in generally available government programs.
I will note that the development on the law in that area is a dramatic shift from where the Supreme Court has been on this issue for years.
It used to be the case that the Supreme Court guarded against taxpayer funding of religious activities and religious entities and it went out of its way to police that line and to make sure that taxpayers weren't being compelled to support religion that this is something that the founders, Thomas Jefferson, James Madison, care deeply about.
And that has now been turned on its head where the court is not only allowing government funding, taxpayer funding of religious entities and religious activities, but in some cases requiring it.
And I think those cases are extremely misguided.
But even if you buy that those cases are correct, that still says nothing about the supposed right to run a religious.
public school and that's the key is that charter schools are public schools so the mere fact that you have the opportunity to eat to go to charter school A versus your local school B. Either way, they are public schools run by the government and the usual constitutional rules should apply because as the court has recognized many times,
public schools are special and the separation of church and state is enforced most vigorously in that context and should be.
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So if Oklahoma were to have a Catholic public school, in essence, you would be, and correct me here where I'm wrong, you would be diverting taxpayer money to this school, and that school would be funded in some way, shape, or form by state collected taxes.
This would make that entity viable and able to enroll students.
So in essence, if I'm an Oklahoma, an Oklahoman who is Catholic or not, atheist, secular, freethinker, Baptist, Mormon, Hindu, Buddhist, Muslim, every time I pay for things in Oklahoma that include a tax, that tax money is in some way, shape or form, however minuscule, going to fund a Catholic school that is teaching Catholicism as the truth.
And again, correct me here if I'm wrong as well, may or may not turn away people and for employment or enrollment may be based on, and these possibilities are out there, because you're a high school student who's gay or you're a high school student who identifies as trans or you want to be a teacher at that school, but you're a lesbian.
And therefore, sorry, we can't do that because we're a Catholic entity and we see that as against the truth of our Catholic doctrine.
Yeah, that's absolutely right.
And just a couple of things on the points you just made.
First of all, yes, all of the compulsory taxpayer funding of these schools is available.
is a problem but Just to be clear, this is a far greater problem than in a situation where we're talking maybe about school vouchers, because there is some taxpayer dollars involved there too.
This is not a voucher-like scheme where you have individual families have the opportunity to choose what school they send the taxpayer dollars to.
And some portion of that will be covered by the state.
This is the entirety of the tuition is covered by the state.
So this isn't some incremental amount.
This is full tuition.
And that's the nature of public schools.
They're free.
And as you alluded to, they're also open to all.
Public schools can't discriminate in admissions.
They can't discriminate in hiring.
And you're exactly right.
When you talked about the admissions question, this school said to the state, please approve us.
We will follow all the rules, don't worry, except to the extent that those rules violate our faith.
That's a big exception.
And what it means is they're going to promote religious doctrine.
They are going to make admissions decisions, disciplinary decisions on the basis of religion.
And that is so far from what we conceive of as how public schools should be working that in the Oklahoma case, the Republican Attorney General was on our side on this and thought it was a blatant violation of the separation of church and state.
And the Oklahoma Supreme Court, remember we're talking about Oklahoma here, the Oklahoma Supreme Court overwhelmingly.
agreed and said it was so far over the constitutional line.
The U.S. Supreme Court then took the case and Justice Barrett recused, took herself out of the case, and they ended up splitting 4-4.
When that happens, you revert to whatever the lower court decided.
In this case, the lower court was the Oklahoma Supreme Court.
And so that blocks the formation of this school.
But, you know, it's a 4-4 tie, one vote away from allowing this egregious, absurd result.
And friends.
Friends, most of you listening know this already, but Oklahoma has Ryan Walters as its school superintendent.
And Ryan Walters is one of the most voracious Christian nationalists we have in state government in this country and currently going through a scandal.
So, you know, we're thinking of Ryan as he goes through that scandal.
But nonetheless, you know, there's someone behind this who is definitely for this kind of.
Catholic public school.
Let's turn to a case we've not talked about on this show, and that is Mahmoud vs.
Taylor.
And that comes out of Maryland.
And it's really a case about whether or not students can opt out of discussions in classrooms about LGBTQ plus folks in any way, history, literature, on the basis of religious grounds.
Take us through that case and how this is also a kind of resonance of or an echo of the Scopes trial from 100 years ago.
Sure.
And I think the grand theme here that connects both the Mahmoud case that you just mentioned to Scopes and everything in between is an effort to impose religious doctrine on public school students and or to run public schools in accordance with religious doctrine.
And of course, what we're talking about there is not just anyone's religious doctrine.
It's whoever's in charge, whoever's in power, right?
So it's not freedom of religion for all.
It's freedom of religion for the people who are running the show.
And in Mahmoud, we have a situation where the county in question, Montgomery County, Maryland, decided to add more LGBTQ inclusive books into its reading curriculum.
This is mainly the focus was on young learners.
And these we're talking about.
picture books.
And what they found was that the books that they had already on the shelves and had approved were not reflective of the community.
So they wanted to add a few books that did a better job at reflecting who actually lives in Montgomery County.
They did that.
Initially, they allowed some opt-outs.
They allowed for parents to opt their kids out of those lessons where the books would be used.
But that didn't work.
It ended up being an administrative nightmare.
It's very difficult to run a school and to run a class.
So administratively, it was a problem the school found.
And they also were very concerned about the stigmatizing message that was sent to students who were in LGBTQ families.
That, you know, there's a book with someone who looks like someone in your family, therefore your classmates.
a chunk of your classmates have to get up and walk out.
So what did the school do?
The school said, we can't do this anymore.
No longer are we going to allow the opt-outs.
And then a bunch of families sued and said it violated their faith to have their kids exposed to this material so that they insisted they had a constitutional right to get notice when the books were being used and to opt out.
Now on the notice, just keep in mind, one of the reasons why the county said this is such an administrative nightmare is we're not exactly sure how the books are going to be used.
They're on the shelves.
The teachers may pick them out.
A student may pick them out on their own.
But there's no one set way.
There's no one set plan.
We're going to use book A on Monday and book B on Tuesday.
That's just not how it works in those schools.
And anyway, the Supreme Courtt eventually got the case and ruled in favor of the families and said that, yes, you do have an opt-out right.
You do have a right to be told when these books that you object to on religious grounds are going to be used, and you have a right to pull your kid from those lessons.
And again, just one more thing on the administrative hassle.
Those kids have to go somewhere.
The ones who get pulled have to go somewhere, and they have to have another lesson.
And so.
And I just one more thing on this.
I mean, we can talk more about it, certainly, but this issue of the do parents have a right to opt their kids out of things that they object to on religious grounds, that is an issue.
that had come up many times before in the lower courts.
And every single time the lower courts said, absolutely not.
You don't have a right.
You don't have to send your kid to school at all if you choose.
You don't have to send them to public schools.
You can homeschool them.
Once you're sending them, you don't have a right to pick and choose which parts of the curriculum you like.
And there's a direct tie to the Scopes case there because one of those early cases was in fact about...
or parents claiming a right to pull their kid out of any lesson where famous women in history are being discussed because it violates the parents' religious belief that women should work only in the home.
So this has come up before.
The courts got it right before, and now here we are, and the Supreme Court went the other way.
But it, okay, so there's so many things we could talk about.
So those previous rulings that you just mentioned, hey, I can't sit sit here and listen to this lesson on women because I don't think women should be in leadership or have any authority.
So I can't listen to a lesson about the first woman governor of this state or the first woman mayor of this city or the first woman astronaut, whatever may be.
And the lower courts are like, sorry, that's ridiculous.
Again, you cannot send your kids here.
There's almost no restrictions on homeschooling in this country.
You can homeschool.
There are other choices, but sorry, that's part of history, part of whatever.
Okay.
You can't take kids out for because we're teaching evolution, right?
This is science.
And again, you can go to a different school.
All right, great.
So now the Supreme Court says, but you can take students out if you object to the existence of, and this is how I want to frame it, the existence of LGBTQ people who are being spoken of in any way, whether that's in history, literature, et cetera.
And it just makes me think like, how far are we from saying, Well, my religion just prohibits me from thinking that black people or non-whites are equal to the white race and therefore., if you're going to teach about anyone from Martin Luther King junior to Barack Obama to Jackie Robinson, then I'm sorry, but my kid's going to have to leave.
Like, and everyone's like, well, that's absurd.
Come on, man.
What do you, really?
But isn't that the same argument?
Isn't, isn't, I mean, because you're basically saying my kid needs to leave because I don't think bisexual people exist.
And if you say they exist, that's against my religion.
They're just sinners who've done something wrong against God.
They're not actual people with that identity.
I don't know.
How does that ring to you?
Yeah, I see a dangerous slippery slope along the lines that you just outlined.
Now, the Supreme Court, in its opinion in that Mahmoud case, tried to explain that this is not, the parents aren't objecting to mere exposure they're objecting to the fact that the school is not only exposing but somehow conveying the message that it's okay but every one of your examples would also fit into that category right I mean it's it's Jackie Robinson broke broke the color barrier in in professional sports
The implication is, and that's okay, right?
Barack Obama was president, and that is normal and fine and unobjectionable.
That's almost always the implication there.
So it really does boil down, I think, in that case to, I don't like a book where there's a character in it that I don't like.
That's essentially what it was.
They spun it out as an infringement on their religious exercise.
But first of all, keep in mind, just like with all the examples you just gave, the thing they're objecting to is not itself in any way religious.
So it'd be one thing to say, I object to a Bible reading in this class, or I object to the Ten Commandments being posted on the wall.
That is a religious commandment to each and every student, each and every day in each and every class.
But this is just Princess Knight.
They're, you know, the, you know, whatever.
The male character marries another character.
Uncle Bobby, the, you know, the male character marries another character and lives happily ever after.
That's all it is.
Sorry, friends, you might be hearing a loud noise out my window here.
There's nothing I can do.
So, okay, so these cases are extreme.
I think these cases are clear to almost everyone listening.
that this is the imposition of religion on everyone else.
Now, the argument that the argument I am not making, I don't think you're making, I don't think anyone is making, is that people should have the freedom to practice their religion.
That's great.
No one has ever questioned that.
That doesn't mean that your practice should meet the existence and identity and limit those of other Americans, other people.
So I think that's what we're really talking about here.
But going back to the binaries we referenced earlier, you know, one of the, I think, the worst ways to render the Scopes trial is this was the trial that emblematized science versus religion.
And I don't think that's what we're talking about here either.
I don't think this is a matter of, can we teach science or is it religion, right?
I think actually there's way more nuance, way more details.
And there's a lot of religious people from all backgrounds, including Christian, that don't see it that way, that they see science and their faith, they see culture and politics, they see identity and the evolution of human thinking all wrapped into a kind of matrix that is detailed.
Does that resonate with you?
And is that one thing that we need to kind of move past if we think about the Scopes trial?
or anything else in terms of the American religious landscape?
That absolutely resonates.
It's an important point to make.
I try to make it as often as possible when I speak publicly that religion is not monolithic.
And, you know, we're seeing so many culture warfights over religion versus something, religion versus equality, religion versus LGBTQ rights.
And it's not that simple.
Religion itself is multifaceted.
There are a great many faiths across the globe on evolution, for example, that fully acknowledge and embrace the scientific theory of evolution.
as completely consistent with their religious beliefs.
And it's interesting that at your right, that the Scopes trial is often portrayed as religion versus.
science.
In particular, because one of the most fascinating parts of the trial, which you mentioned earlier, was the cross examination of Scopes' defense attorney on the one side doing the cross, but the witness was William Jennings Bryan, the attorney for the state.
That never happens.
That should never happen.
But the reason why it happened is because the judge in the case rebuffed the initial plan of the defense.
The defense strategy overall was to show exactly what you just said, which is this isn't just religion versus science.
They wanted to show, first of all, that this is a theory that is widely accepted in the scientific community, but also that it is not incompatible with faith and not incompatible with most religious belief systems.
It may well be incompatible with a literal interpretation of the Bible, a particular Christian fundamentalist interpretation of the Bible, but it is not incompatible with religion writ large.
And that's actually what led to the cross-examination.
of Brian in the case because the judge excluded all the other testimony.
Yeah, I'm not, I don't know why we don't have an HBO six-part series.
Like, come on, I'm watching that.
I don't know why.
Like, I am watching that series.
Give me HBO, if you're listening, come on, six hours on scopes leading up to it, all of the machinations, the dirty tricks.
Like, I want to see Don Drape, like John Ham, Don Draper as the judge.
I want all of it.
Give me all of it.
But we don't have, you know, we have some film and TV depictions.
But, you know, I think the point I want to make about the religion versus sciencing is that that privileges one kind of religion.
It basically says that religion, the category ofory of the conservative Christian who is bringing the, you know, the Oklahoma case or the conservative Christian who wants the Ten Commandments in Texas or Louisiana.
That religion equates to that group and it totally overlooks all of the other religious people in the country, whether they are mainline Protestants, whether they are Reformed Jews, whether they are Japanese Buddhists, whether they are South Asian Hindus.
et cetera.
Religion does not, and this has been a problem for a long time, but religion does not equate to one's particular strain of Christianity in the United States.
But when you say religion versus science, religion versus law, religion versus secular, and you do that, to me, that's a privileging.
And that in itself is a problem, is it not?
Absolutely.
And that's true.
That's true on so many issues.
It's true on the evolution creationism issue, but it's also true about LGBTQ equality or abortion rights.
There are people of deep, profound faith on both sides of those issues.
while yes there are there are people who for strong religious convictions want to ban same-sex marriage and want to ban ban abortion at the same time, there are folks on the other side for deep religious reasons saying, no, wait a minute, I think we all have a right to control our body for religious reasons.
Or for religious reasons, I think everyone should be treated equally, regardless of whom they love.
And so it's true, as you said, on evolution and on most of the other culture war issues that religion is on both sides, just as it was, by the way, throughout our history.
We hear about the importance that religion played in the civil rights era.
It absolutely did.
It was a strong motivating factor.
By the same token, it was a strong motivating factor on the other side of the civil rights era, and the same is true of slavery.
There were pro-religion arguments for abolition, religion arguments for slavery.
And so this has been true the whole time, but you're right.
We end up using shorthand religion versus these days that privileges one particular set of religious beliefs.
I want to ask you one more question, if you have time to stick around, about So friends, if you're a subscriber, stick around.
I'm going to ask Dan this question about RFK.
And here it is.
Thank you.
Tell us ways that we might link up with what the ACLU is doing on this front, what the ACL is doing in the areas of religion and belief, and kind of ongoing discussions about scopes 100 years later.
I mean, we have a lot going on.
We just scratched the surface.
Our website has the best information.
I'm not a big social media guy myself, but the ACLU's socials are fantastic.
I think it's a great reminder that the ACLU is working hard on religion and faith issues.
People think of ACLU and civil rights and so on.
And I think this is a really good reminder of the robust work that the ACL is doing on religion and faith.
So that's great.
And God bless you for not being a social media person.
I envy all folks like that.
All right, friends, as usual, find us this Wednesday with It's in the code and Friday with the weekly roundup.
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