The Appeal

An appeal was made before the Supreme Court of Tennessee in May of 1926. The defense again argued that the Butler Act was vague and that it was unconstitutional. The Supreme court took its time in reaching a decision. The decision was presented on January 17, 1927. The court ruled that the antievolution statute only applied to public employees acting in their official capacity, and therefore did not infringe on individual liberty. Scopes “had no right or privilege to serve the state except upon such terms as the state prescribed.” Furthermore, the law “requires the teaching of nothing,” and therefore “we are not able to see how the prohibition … gives preference to any religious establishment.” However, they ruled that the judge was in error when he set the fine at $100. The fine should have been set by the jury. Because of this technicality, the court set aside the verdict of the lower court. Setting aside the verdict is not the same as declaring Scopes not-guilty. He could have been tried again on the same charge. However, the Supreme Court recommended that the Attorney General not pursue the case any further. The Attorney General complied. This action by the Supreme Court eliminated any possibility for an appeal to the U.S. Supreme court. The Butler act remained in effect until its repeal in April 1967, i.e. it remained in effect for 42 years after the Scopes trial.