Rebecca and Liz commemorate the 100th anniversary of the Scopes Trial. They discuss the infamous “monkey” trial, and the history of teaching evolution in public schools. An “everything old is new again” episode, showing the impact of the Scopes trial throughout the last century and digging into the latest attempts by Christian Nationalists to inject religious teachings into science curriculum.
Background
The Legacy of the Scopes Monkey Trial 100 years later – Americans United
The Scopes "Monkey" Trial with Brenda Wineapple – Freethought Matters
Cases
Rebecca Markert: Welcome to We Dissent, the podcast with secular women attorneys discussing religious liberty issues in our federal and state courts and our work to keep religion and government separate. I’m Rebecca Markert with Americans United for Separation of Church and State
Liz Cavell: and I’m Liz Cavell with the Freedom From Religion Foundation.
Rebecca Markert: Just like that. It’s fall, Liz.
Liz Cavell: It’s fall. It’s complete with like chilly weather in late August. Good times.
Rebecca Markert: Totally. And I know it’s fall because it’s the time of year where I get my annual cold. And so the among many other things my children bring to my life, it’s usually illnesses.
Liz Cavell: That’s right. And also back to school season.
Rebecca Markert: Yes, it’s back to school season, which is a very busy time for our organization. Our work, as our loyal listeners know primarily deals with religion in our public schools and we thought to celebrate back to school with you all, we wanted to bring you an episode commemorating the Scopes Trial. We’re gonna go through the history of the trial, the cases that came after it, and then discuss what comes next for evolution creationism and or intelligent design or whatever version of biblical science they wanna throw at us.
Liz Cavell: That’s right. So this past July, actually, 2025 marked the 100th anniversary of the famous Scopes Trial, also known as the Monkey Trial. And this took place in 1925. So we’re gonna travel back to that time when the state of Tennessee passed a law called the Butler Act. It outlawed the teaching of evolution in the state’s public schools. Just full stop. It made teaching evolution in schools a crime, a misdemeanor that got its name from the Tennessee State representative who introduced it, John Washington Butler. And he lobbied heavily for states, not just Tennessee, to pass anti-evolution laws. So this might sound familiar to many of us living through the current moment, but this was a full on ultra-conservative Christian religious right movement to shape what was taught in public schools to conform to this like Christian nationalist worldview. This guy John Washington Butler was also, not coincidentally, head of the World Christian Fundamentals Association. So all of this was very reminiscent of the current Christian nationalist movement. Like this was yes, an ultra-conservative Christian ideology, but also merged with like a political ideology of what should be taught in schools, what our students should learn about conservative Christian parents with their kids in secular schools and all the dangers of what that meant.
Rebecca Markert: I just wanted to highlight that the World’s Christian Fundamentals Association was founded just six years prior to 1925. It was founded in 1919 by a Baptist minister and it was originally formed to launch a new sort of Protestantism based on pre-millennial interpretations of biblical prophecy. But as things would have it, it soon turned its focus to opposing the teaching of evolution in schools.
Liz Cavell: Yeah. Like this moment in time, I feel like anti-evolution fervor was like really having a moment in the culture and in the religious right of the day when the governor of Tennessee signed this bill, the bill that outlawed the teaching of evolution, the Butler Act, William Jennings Bryan, his famous lawyer who we’ll talk about in a minute, said quote the Christian parents of the state owe you governor a debt of gratitude for saving their children from the poisonous influence of an unproven hypothesis. Referring to evolution, obviously
Rebecca Markert: Yes.
Liz Cavell: But very reminiscent of some of the rhetoric we hear today around like the corrupting influence of secularism and secular public schools and how corrupted Christian children are by the, the pluralistic and the broad sort of cultural teachings that students encounter in the public schools today. But the boogeyman of the day was evolution, a scientific theory that I guess flies in the face of a creation of man by God theory of existence. And since the days of Darwin, obviously that tension and that opposition to evolution by the church, the conservative churches always existed.
Rebecca Markert: So specifically, the Butler Act prohibited the teaching of quote any theory that denies the divine creation of man and teaches instead that man descended from a lower order of animals. End quote. So somewhat ironically, Liz, the state had been requiring use of this textbook called A Civic Biology, which endorsed the theory of evolution as well as eugenics actually. So teachers were required to use the textbook that included a subject matter that would now be deemed illegal under the Butler Act.
Liz Cavell: Yeah. So also filed under somethings never change, the legislators of the state of Tennessee didn’t exactly cross reference their political grandstanding of the day. So I mean obviously I’m no history buff, but 1925 is not when the theory of evolution was discovered. The theory of evolution had been long known in the scientific community understood as the scientifically valid explanation for the development and the survival of species as evidenced by the fact that the state approved and required biology-textbook-included-teaching of the theory of evolution. So I mean this is not something that was new that these these legislators are just now having to grapple with. This was a specific like political culture war, frankly theocratic movement by the legislatures in the state of Tennessee.
Rebecca Markert: So, the American Civil Liberties Union also in its infancy, this was one of the first things that the ACLU saw in its sights and decided that it wanted to litigate. The ACLU denounced the law and had said that it violated the First Amendment’s prohibition on government establishing a religion, and the ACLU promised to defend teachers who were charged with breaking the law by teaching evolution. And actually they even put out an ad in some of the papers in Tennessee and one of those ads in the Chattanooga Daily Times read this: We are looking for a Tennessee teacher who is willing to accept our services in testing this law in the courts. Our lawyers think a friendly test can be arranged without costing a teacher his or her job. Distinguished counsel have volunteered their services. All we need now is a willing client. By this test we hope to render a real service to freedom of teaching throughout the country, for we do not believe the law will be sustained. I thought this was like so interesting. I mean they just put out an ad saying, “Hey, who wants to challenge this law?”
Liz Cavell: Yeah. This is so interesting. Just as practitioners at a civil rights organization in the today times, like this is just such a funny and bold and direct way to solicit plaintiffs and just very explicitly discuss testing a law on the courts, all of this before, I think the doctrines of standing and injury and all of these ways in which courts developed kind of legal tests that would allow them to avoid taking challenging and controversial cases. If this is sort of feels like a pre-that time, just bold, very explicit call for, hey, here’s what we’re gonna do in the courts, and we need a teacher that’s willing to do it.
Rebecca Markert: It’s a little more than if you or your loved ones have been harmed by the Butler Act. Please call us at.
Liz Cavell: Totally.
Rebecca Markert: But they did find a teacher.
Liz Cavell: That’s right.
Rebecca Markert: They found a 24-year-old science and math teacher, John Scopes, who taught at Dayton High School, and he admitted to teaching evolution and was eventually charged under the Butler Act, which as Liz mentioned was a criminal statute. The Dayton town leaders read the ACLU’s ad and they wanted to draw attention to their stagnant town in southeastern Tennessee. So he was enlisted to confess to teaching evolution in violation of the law. He actually couldn’t remember if he actually taught evolution, but he was using the required textbook that we mentioned earlier. And so he was arrested. He didn’t actually go to jail, they posted bail for him, but he was then tried under the Butler Act.
Liz Cavell: Yeah. And this is so interesting because the history of the trial itself just as a spectacle is really pretty rich. And actually to celebrate the centennial of the Scopes Trial, the Freedom From Religion Foundation just sponsored a big scope centennial event right there at the Dayton County Courthouse where this trial took place. FFRF also was a big force in fundraising and getting up the Clarence Darrow statue that now stands kind of side-by-side with the William Jennings Bryan statue that was long there to kind of provide some balance and we’ll talk more about the attorneys in a second. But the funny inside baseball is that kind of in keeping with the ACLU’s very like frank desire to run this as a test case, I think like the history really is that Dayton itself was very eager to be the place where this test case would take place. It was sort of viewed as this like spectacle kind of like festival atmosphere, right? Like there’s gonna be newspaper people all in our town and they’re gonna have to stay in our hotels and we can set up shops and like sell merch and everyone will crowd outside the courthouse, and this will be like a boom of this spectacle tourism to our stagnant little rural Tennessee town.
Rebecca Markert: They had like chimpanzees that were like parading through the town and things like that. It was really truly a spectacle, the trial of the century for sure.
Liz Cavell: Well part of the spectacle was that it attracted these two huge legal titans, famous attorneys with national reputations to come in and represent either side of the trial. And remember this is the criminal trial of this 24-year-old teacher John Scopes and basically the county, the government trying to prosecute him. So we had William Jennings Bryan, he was this incredibly nationally-known political figure of the time. He was a three time Democratic candidate for president, a former member of Congress, a former Secretary of State. He was known for his support of liberal causes, but he was hired and brought in to prosecute the case on behalf of the local government. He was known to be opposed to evolution and social Darwinism. He was a religionist, a liberal sort of politician, but he definitely voiced the fear that America’s becoming godless. It should be a Christian commonwealth. Those are his words. Oh, look at this fun fact.
Rebecca Markert: Oh yes, I put that in there. I didn’t know this. This is a fun fact. William Jennings Bryan actually spoke at John Scope’s high school graduation, he was the commencement speaker. Isn’t that fascinating?
Liz Cavell: That’s wild.
Rebecca Markert: Like this is just, I mean this is made for Hollywood, like this entire trial.
Liz Cavell: Yes, totally. All right. So we had William Jennings Bryan brought in, totally famous national figure, to be the attorney acting for the government and prosecuting the case. And then the ACLU brought in the defense attorney, Clarence Darrow probably know his name even if you’re only like passingly familiar with famous 20th century attorneys, he was a very well-known defense attorney known for representing union members, people in like really famous murder trials and criminal trials. He volunteered to defend John Scopes. He was an atheist, sort of a known secularist and supposedly had supported William Jennings Bryan in one of his presidential runs, but obviously disagreed with him on his views on religion and theocracy.
Rebecca Markert: So, the Scopes Trial lasted about a week and a half, and this was in July. So it is incredibly hot in Tennessee. They’re sweltering temperatures. In fact there was one day where they, it was so hot in the courtroom that they just left and did the trial outside. So you can just imagine what that was like where they just like brought the attorneys and the witnesses and the judge and the court reporter, everybody outside of the courtroom where these huge spectacles are happening. I mean the newspaper accounts say that Dayton really turned into a circus-like atmosphere during the trial and they brought it outside one day because it was just too hot. They were actually worried for the jury, members of the jury, that they wouldn’t be able to take the heat. And they were also worried about, I think the floorboards of the courtroom like being able to withstand all of the people sitting in there in sweltering temperatures. You, oh also another fun fact, you can actually go to Dayton, Tennessee and tour the, the courthouse where this all happened. The FFRF, were you guys actually in Dayton?
Liz Cavell: The event was in Chattanooga, but they did an organized tour of Dayton, the courthouse, the grounds and everything as part of the commemoration.
Rebecca Markert: Yes, you can go and learn all about the, the Scopes Trial there and see the monument that Liz was talking about to Clarence Darrow that is across from William Jennings Bryan whose statue was up long before Darrow’s was. Back to the trial. It lasted about a week and a half. The judge was Judge John Raulston. He was viewed as favoring the prosecution. He often quoted scripture during the trial.
Liz Cavell: That’s a clue.
Rebecca Markert: Right. And he would, he would not let constitutionality of the law actually be debated. another
Liz Cavell: That’s wild.
Rebecca Markert: Well, the First Amendment at the time had not yet been applied to the states.
Liz Cavell: Yeah.
Rebecca Markert: And so, this is also just, it’s such a different time and Darrow notably called prosecutor Bryan to this stand to showcase his lack of scientific knowledge and to try to undermine his anti-evolution stance and belief in the literal interpretation of the Bible. So let me just ask you, you were a former defense attorney Liz, would you have ever called the prosecutor to the stand?
Liz Cavell: No, I don’t think that’s allowed. Usually attorneys cannot be witnesses in cases in which they are counsel in the case. So just to paint the picture of like this is really a different time both in the cultural reality of the day but also just the legal reality of the day. And most importantly, and this is part of why Rebecca and I wanted to cover this case because it really does kick off a whole sort of timeline of development in the law around religion and public schools. But this really was before all of that. 1925 was before the first Supreme Court cases that that recognized, like Rebecca said that the First Amendment applies to the states and local school boards. It was before the first big Establishment Clause cases came down from the Supreme Court interpreting what that means in the context of public schools.
And so it really was just a different time in terms of like what the legal reality was and what the boundaries of the law and the First Amendment were in cases like this. But also it was just a Wild West in terms of some of the things that like actually happened in this case. And it’s funny because there have been movies made about this case and like plays written about this case and you watch them and it’s like dramatizing and you’re like, this can’t possibly be what happened. And for the most part it really is, like the attorney for the case just suddenly becomes a witness, it’s like a showcase witness for the defense.
Rebecca Markert: They take the case outside so everybody can watch. It is, it’s such a different time. Which is why I think it’s also so fascinating to go back and and see it, especially from our perspectives as litigators. So the jury in this case deliberated for nine minutes.
Liz Cavell: I’m wondering if they gave due consideration to the evidence.
Rebecca Markert: For nine minutes they did, and shockingly they found John Scopes guilty of violating the Butler Act, and he was fined $100. But again, this is a different time. $100 in 1925 is roughly the equivalent to $1,800 today. So it’s a pretty hefty fine for a school teacher.
Liz Cavell: Yeah. Especially just for teaching the state mandated textbook in his biology class. But I think what’s important here is that again, this was the Dayton County misdemeanor criminal trial of some guy. The idea for the ACLU was obviously that this would be the first step in a very long legal campaign to get this case appealed up through the appellate courts and even eventually to the Supreme Court where they could push the court to analyze the constitutionality of the law, which couldn’t be brought up in the criminal trial. I believe that the object was that this case would be used to expand the interpretation of the First Amendment to protect the conduct and the speech of John Scopes here. But alas, it was not to be, this case was sort of stymied. So the case was appealed to the Supreme Court of Tennessee, the state Supreme Court, which upheld the constitutionality of the law, the Butler Act, but overturned Scope’s guilty verdict on a technicality, something related to the fine. The fine was greater than the law allowed. And so it really became impossible for John Scopes and the ACLU to continue pursuing the appeal. But again, the law, the constitutionality of a law banning the teaching of evolution had to live to die another day.
Rebecca Markert: Another interesting footnote to this case, just to add to the Hollywood
Liz Cavell: The drama
Rebecca Markert: The drama, the Hollywood nature of this case, William Jennings Bryan died only a week after this trial concluded, he died in his sleep
Liz Cavell: Also just wild like, just wild.
Rebecca Markert: But yeah. So let’s talk about the legacy of, of the Scopes Trial. So one of the things that happened in the aftermath of this trial was obviously a slew of anti-evolution laws that are passed in many states, many of which remained on the books for nearly 40 years.
Liz Cavell: Yeah. Awful and unintended consequences. This was the first of really a wave of anti-evolution fervor. And again, there was no Supreme Court case on the Establishment Clause applying to a state or local government. And so there was nothing standing in the way of states passing these laws that made teaching evolution a crime or outlawed it until finally the Supreme Court took a case again, like Rebecca said, this is 40 years later in 1969, right?
Rebecca Markert: Mm-hmm yep.
Liz Cavell: Coming out of the state of Arkansas and revolving around just such a law, right? Like an anti-evolution law in the state of Arkansas.
Rebecca Markert: Yeah. So this case is Epperson v. Arkansas and it is the case in which the Supreme Court strikes down the 1928 Arkansas law that banned the teaching of evolution as a violation of the Establishment Clause. So again, now in 1969 the First Amendment has been incorporated and particularly the Establishment Clause has been incorporated against the states. So a challenge was brought by Susan Epperson, who was a Christian but saw no conflict between her faith and evolution. And she was approached by the head of the Arkansas Education Association who wanted to overturn Arkansas’s anti-evolution law. It went all the way up to the US Supreme Court and the Warren Court struck down that law in a unanimous opinion written by Justice Abe Fortas 9-0, the anti-evolution law is unconstitutional.
Liz Cavell: Those were the days. So this is again 1969 considering a law that was passed in 1928. So in the age of the Scopes Trial. So again, the arc of some of the like pendulum swing that’s happening in these cases and these movements to sort of undermine public education, to push these ultra-Christian conservative religious right theology into public school curriculum have been like long arcs, right? Like this was what was trying to be done in the Scopes Trial in 1925 and only finally is reaching the United States Supreme Court who’s agreeing to hear this case in 1969. So that was a huge kind watershed moment in stopping just right in its tracks. This hugely successful for four decades movement of undermining a scientifically accurate teaching in public science classrooms. And so in the post-Epperson era, there was just this avalanche of creationists trying all of these other ways to insert religious creation theory into public school curricula.
So like trying to give creationism or anti-evolution curriculum, these new labels and branding, this is where we get the concept of teaching a quote-unquote balance or a controversy of evolution and creationism, or the epic brand name that was intelligent design and creation science quote-unquote, right? These new brands of things for the same old teaching, which is religious ideology, right? Like the divine creation ideology or the flip side of that, which is anti-evolution teaching, which are kind of two sides of the same coin and both unconstitutional for the same reason. You had creationists just sort of trying their hand at all these different ways of reintroducing these anti-evolution laws under these new names and monikers and different ways of framing what was and wasn’t gonna be permitted in public school biology teaching.
Rebecca Markert: So the Epperson decision spurs the laws that Liz is talking about, requiring educators to teach a balance of evolution, to teach creation science. In 1987, another case, Edwards v. Aguillard goes up to the high court and the Supreme Court once again strikes down a law in that prohibits the teaching of evolution unless it was accompanied by the teaching of creationism. That case though was not unanimous. It was a seven two decision written by Justice Brennan where the court ruled that the Louisiana law, again, a law prohibiting the teaching of evolution, unless it’s accompanied by the teaching of creationism, violates the Establishment Clause. And under that case, they evaluated the law under the Lemon Test, the test that we’ve talked about ad nauseum on this podcast. And it failed all three prongs of the Lemon Test and was unconstitutional,
Liz Cavell: Right. It’s not secular. It advances religion and it causes excessive entanglement between religion and the government. So again, that was 1987, so after Lemon, which was in the seventies, but you know, a good almost 20 years after the Epperson decision. So there’s like 20 years of just state legislatures experimenting and pushing the boundaries of this clear and unanimous opinion by the Supreme Court 20 years earlier. And you know, not until 87 do we get the Supreme Court taking this up again, you’d think that Louisiana law not that different from the law that was struck down in Epperson, right? It’s like okay fine, it’s against the law to teach evolution unless you also teach this religious creation theory as pretty much the same law. But you know, gives this sort of illusion that there’s like this balance or that there’s some non-religiously based reason that you would teach divine creation.
And again, in Edwards using the Lemon framework, but the very principles laid down in Epperson, it’s struck down, it violates the Establishment Clause. It’s clearly teaching religion in public schools or requiring religion be teach if valid secular scientific theory is gonna be teached. So that’s a big decision. The Edwards decision in sort of the broader like spectrum of public school Establishment Clause cases that took place between the forties and the two thousands. But there’s one like really important and memorable case that involved exactly this issue, which was another attempt by creationists to continue to push these laws in states that would require some sort of teaching of divine creationism in public schools. And this was a case that did not go past the district court level, so it never went up on appeal, but it was a massive Establishment Clause case involving the teaching of creationism.
And it was unique in that it was one of the only Establishment Clause cases in our movement memory. I’m sure there are others, but this is the big one that stands out as having gone to trial. Like there was actual fact finding and testimony that took place in order for the judge to make its decision in this case. That’s usually not how these things go. Usually the facts are not disputed and the judge can just make a ruling on the law whether or not the constitution prohibits what the government is doing. And the agreed upon facts this case Kitzmiller v. Dover Area School District was the district court case that was different. And that laid out just this expansive fact-finding by the court that laid bare all of the fallacies of this whole creationist movement as a legitimate constitutional endeavor in public schools.
Rebecca Markert: So in 2004, anti-evolution members of the Dover Area School Board in south-central Pennsylvania objected to textbooks that included evolution. They required the district to also provide the pseudo textbook on intelligent design called Of Pandas and People and passed a resolution requiring science teachers to read an anti-evolution proclamation to students. So Americans United and the ACLU sued on behalf of district parents. In 2005, the court, a US district judge, issued a forceful decision that declared Dover’s intelligent design policy to be an unconstitutional violation of students and families religious freedom. The judge declared intelligent design an unequivocally religious unscientific concept that doesn’t belong in public schools. And he excoriated board members for adopting such a divisive policy and for lying about their religious motivations.
Liz Cavell: Ah, the good old days.
Rebecca Markert: I also just wanted to point out that one of the AU attorneys and former legal directors, Richard Katskee, was at FFRF’s centennial celebration and gave a speech
Liz Cavell:
That’s right
Rebecca Markert: About this case and I believe it’s up on your website.
Liz Cavell: Yep. We’ll drop the link in the show notes and you can go there and you can see links to YouTube videos of all of the awesome speeches and talks that were given at the scope centennial celebration, including Richard Katskee’s and other legal experts talking about the legal history of the Scopes Trial and even the Kitzmiller case. So you definitely should check it out.
Rebecca Markert: So you would think that after Epperson, after Edwards, and the cleanup Kitzmiller case, you would think that this controversy was over, right? Liz?
Liz Cavell: Yes. Case closed.
Rebecca Markert: It’s not
Liz Cavell: It’s not
Rebecca Markert: It’s not. Since Dover creationists have turned to try to get schools to teach the supposed controversy between evolution and creationism. And really this is the, the way to get creationism in schools is to, to set up this debate, this "teach the controversy." This "evolution is a theory so is intelligent design so is creationism," but there really isn’t a scientific controversy. Creationism is a religious theology and it doesn’t belong in our secular public schools.
Liz Cavell: Right. That’s exactly what was found by Judge Jones in the Kitzmiller trial. Like you’ve got to go, if you’re interested in this at all, you’ve gotta follow the links and read and learn about what took place at the Kitzmiller v. Dover trial because there was just an incredible amount of fact finding, like witness testimony, opening statements, and just a full trial level exploration of this question of what is creationism? Could it be secular? What are anti-evolution laws? What’s their purpose? What’s their motivation? What could be a possible secular basis for any of this? And it just does this painstaking exploration of all of these questions. And the fact is it’s not secular, it is a religious theological ideology about the origins of man and women and like there’s nothing else to it. There’s really no other way, no matter what different versions you kind of spin or brand it as it is based in a specific religious ideology with no secular or scientific support. It is not appropriately taught in public schools. And it’s so frustrating that Kitzmiller didn’t like lay to rest any questions, factual questions on whether or not this could possibly be defended as appropriate secular education.
Rebecca Markert: So we’re seeing a wave of bills that would inject creationism and intelligent design back into the public school curriculum. In fact, in 2024, the state of West Virginia passed a law that could open the door to creationism in the state’s public schools. In that law it says that "no local school boards, school superintendent or school principal shall prohibit a public school classroom teacher from discussing and answering questions from students about scientific theories of how the universe and or life came to exist.” So it’s not exactly saying that you have to teach creationism, but
Liz Cavell: Or that evolution teaching is banned, but you can see what the new tactic is, right? It’s supposed to give it this new framing of like these evil school districts can’t suppress the speech of teachers who want to discuss creationism in the classroom, right? Like that’s the framing here.
Rebecca Markert: And I’ll, I’ll also note that actually the bill as it was first introduced the year prior in 2023, it did overtly seek to allow science teachers to offer instruction on intelligent design, but it didn’t pass. And so then the sponsor went back and retooled the bill and made it a little bit more vague. But we all know what the intent is here,
Liz Cavell:
Right?
Rebecca Markert: is to insert this religious teaching of science into our public school classrooms.
Liz Cavell: Right. So that one just passed last year. It’s just gone into effect. It’s super vague and it’s meant to sort of allow and encourage this unconstitutional teaching in classrooms, but again, is not as direct as past versions of these types of laws. So this is what our organizations now are watching to see if and how these laws are actually implemented or put into practice in public school classrooms. But this is the trend now. So it’s a hundred years later after the John Scopes Monkey Trial, and again, you have the pendulum swinging towards a way more ultra-kind of conservative federal bench and especially Supreme Court. And all of these creationists Christian nationalists of the day really view it as kind of open season on these settled cases like Kitzmiller and like the SCOTUS decisions and Epperson and Edwards on creationism as like, let’s pass these laws in the states and let’s take our chances in the federal courts again.
And so we know that that is coming in both the way that states like West Virginia will try and pass new laws that kind of vaguely try to loosen the restrictions on teaching and creationism in public schools. But also we see new tactics coming up in the way cases are being pursued in the public schools that will help creationists suppress the teaching of evolution in public schools. And we’ve talked a lot about this recently in terms of what the Supreme Court’s been up to this term, but we wanted to kind of bring it full circle with this topic because it really is something that not just us many legal experts have flagged as something that is rife for targeting evolution in public schools. And that’s the Supreme Court’s ruling in the Mahmoud case that happened this term and just the general sort of legal theory that there should be this heckler’s veto on public school curriculum for the most uber-conservative religious parents in public schools.
Rebecca Markert: Yeah, that definitely seems like the next frontier will be this idea of opt outs for any sort of lessons that religionists may disagree with. And so this is something that we’re gonna keep an eye on. And one of the reasons that we wanted to go through the history starting with Scopes all the way through to present day on, on what the courts have said about evolution and creationism in the schools, to see where, you know, where we’ve been and where we’re headed,
Liz Cavell: Right. And on the subject of Mahmoud and how that could impact the teaching of evolution, right? I’m sure all our listeners were called that the Mahmoud case involved LGBTQ-themed books and materials. But the sweep of the court’s decision was this broad constitutional right of parents who have religious objections to curricular content to opt out. And so what wasn’t spelled out by the court was the court offered no guidance on how schools are supposed to handle like a slew of opt-out requests and how religious belief claims should be evaluated by schools and how the logistics of this will work in any individual school districts. And of course, the case involved LGBTQ books and lessons, but there’s nothing limiting the decision to that type of content. It’s all about the religious objections of the parents. And so the sweep of the court’s Mahmoud decision and even Justice Sotomayor brought this up in her dissent, which is one of the very obvious things that will immediately come to mind in terms of the sweep and what this could expand to is the teaching of evolution as far as targeting public school curriculum over the past a hundred years, nothing has been targeted like the teaching of evolution in public schools. And so it’s obvious that the court’s requirement that public schools deliver these opt-outs to parents who object on religious grounds to curriculum. This is obviously gonna affect science curriculum and the teaching of evolution. It’s just not clear how and how schools are going to be able to handle and deal with all of the fallout and frankly, a litigation that’s gonna come in the wake of the Mahmoud decision,
Rebecca Markert: Right. The Mahmoud decision, the implications of those opt-outs are pretty far reaching and are obviously readily extendable to the, the teaching of evolution. Just as a reminder, the court extended Wisconsin v. Yoder’s exception and proclaimed reaffirmed that quote, a government burdens the religious exercise of parents when it requires them to submit their children to instruction that poses a very real threat of undermining the religious beliefs and practices that the parents wish to instill. So the court in Mahmoud also dismissed Sotomayor’s slippery slope arguments saying that that was unwarranted. But where these lines are drawn are very unclear. And so this looks, this looks pretty bleak and is certainly going to beget more litigation.
Liz Cavell: Yeah, for sure. It’s just so unfortunate that the hundred year anniversary of the Scopes Monkey Trial brought us basically the Mahmoud decision, right? I mean, the issue of evolution in public schools is still this flashpoint and it’s a hundred years later and it’s just really frustrating that public schools can’t just be left to teach secular curriculum. And we have the answer here, right, Rebecca? We have the key, it’s called secularism. You can teach all of your religious ideology in the private sphere and public schools that one bastion of secularism and pluralism can just teach our kids the basic secular values that are necessary for them to thrive in a pluralistic society. But no,
Rebecca Markert: Yeah, it all remains to be seen.
Liz Cavell: It all remains to be seen. So I will just say again, as we wrap up today, check out the FFRF webpage, listen to some of the talks that were given at the scope centennial, especially Richard Katskee and Ed Larson, who’s a historian who wrote a book about the Kitzmiller decision. And it’s a really interesting history that gives a lot of insights into some of the battles that we are continuing to fight today to keep public education, especially science education, secular, evidence-based, all of the things that we want our public schools to be. So
Rebecca Markert: Yes, FFRF’s wonderful legal assistant, Greta will put all of this in the show notes for us, she helps us immensely in producing these episodes, so you’ll be able to find that there. And before we close, I also need to extend a special thanks to American United’s Vice President for Communications, Liz Hayes, whose research work really helped produce this episode as well. Many of the secular organizations were commemorating the centennial of the Scopes Trial, and Liz Hayes put together a lot of this information on the history of teaching evolution in our public schools. And all of this was incredibly useful for putting together today’s episode, so it was pretty much all her work. So thank you to Liz Hayes for putting this together for us so that we could share it with you. Because again, I think it was really important for us to visit this topic and really do a one-on-one on what the courts have said about the teaching of evolution and the teaching of intelligent design in schools.
Liz Cavell: Yep. We wish it wasn’t still relevant, but it clearly is. So we will hopefully give some more of the current context and developments on this topic as the legislative sessions go on and as the new court term takes off this fall, but wanted to do this retrospective ’cause there is a pretty rich history here that we don’t wanna lose sight of, even if the courts are.
Rebecca Markert: Right. So that is it for today’s episode. I’m Rebecca Markert.
Liz Cavell: And I’m Liz Cavell. And if you haven’t already, please follow us on our socials. We’re on Facebook, Instagram, Bluesky, and X. Please also remember to let us know how you’re liking this show by leaving us a review. You can also find us at we-dissent.org. Thanks for listening.
Rebecca Markert: We Dissent is a joint production of the Freedom From Religion Foundation, and Americans United for Separation of Church and State. It is hosted by attorneys Liz Cavell and me, Rebecca Markert. Other production support comes from Greta Martens, audio engineering provided by Audio for the Arts based in Madison, Wisconsin. Thanks for listening.
