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Intriguing, amusing, strange and significant stories from the history of science

Episode 18: Tennessee versus Scopes: The Trial of the Century - Part 5

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We left off last time at the second Weekend of the Scopes trial, and it wasn’t looking good for the defence. The Judge had ruled that all the expert testimony they’d prepared was inadmissible, meaning they had absolutely no evidence whatsoever.

Their plan had been to use testimony from various experts on both evolution and the Bible to demonstrate that simply proving Scopes had taught human evolution wasn’t enough to prove he’d violated the Butler act, since the Butler Act specifically said that he also had to have contradicted the Bible. By bringing in experts in Evolution who also believed in the Bible and experts in the Bible who also believed in evolution, they had hoped to demonstrate that simply teaching that humans developed by a process of evolution didn’t automatically violate the Butler Act, and at the same time it was an educational opportunity. Everyone following the Trial of the Century, in America and the rest of the world, would be a captive audience for what was in effect a series of lectures from leading experts in biology and theology.

But the judge had ruled that none of this was relevant. The wording of the act was, in his view, perfectly clear, and the only issue was whether or not the defendant had taught evolution.

And on that front the defence didn’t have a leg to stand on. Scopes had admitted to teaching evolution, and two of his students agreed. Whether he actually had taught evolution is another matter, but the defence weren’t going to make that argument. You can’t challenge a ban on teaching evolution unless everyone agrees that the defendant actually has taught evolution. 

Darrow and Bryan had spent the weekend giving lectures and speeches and exchanging press statements, while Hays had been doing actual work, assembling statements from the expert witnesses that could be read out so they’d be in the record for the purposes of the appeal. Meanwhile, as I mentioned last time, the London Weekly Dispatch had run a competition inviting readers to submit Limericks on the topic of the Scopes Trial.

With help from my local library’s British Newspaper Archive subscription, I managed to track down the winning entry:

Judging by the large number of “Limericks” sent in about the Dayton trial, readers experienced little difficulty in composing humorous verses.

The prize of £2 2s. is awarded to to Mr. E.J. Rackham, 36, Richville Road, Shirley, Southampton, for the following well-thought-out “Limerick”:

If we take the Daytonian mind

As an average of men’s, I’m inclined

To ask, not if man

With a monkey began,

But “Did monkeys descend from mankind?”

It is interesting to note that over 25 percent of the jingles sent in took “evolution” as the principal rhyming word.”

But despite such amusing diversions, much to the disappointment of the people of Dayton, the excitement had started to die down. With a guilty verdict a foregone conclusion, lots of the journalists who had descended on the town hadn’t seen it as worth their while sticking around now that they’d seen all the interesting bits of the trial. Even H.L. Mencken had left. 

But remember, Clarence Darrow had a cunning plan. 

Monday was Day 7, and the first business was dealing with Clarence Darrow. If you remember from last time, on Friday he’d snapped at the judge, in a dispute over how much time they’d be allowed to draft an opinion. In the words of H.L. Mencken, 

The sole commentary of the sardonic Darrow consisted of bringing down a metaphorical custard pie upon the occiput of the learned jurist.”

It had looked for a moment like he’d got away with it, but now he was indeed cited for contempt. His bail was immediately posted, and the trial continued. 

It was time for the defense to read out their witness statements. And they had brought the range of disciplines they had promised, both scientists who knew about evolution and Bible scholars who knew about the Bible. There was the Episcopal minister Walter Whitaker, saying that obviously not all of the Bible is to be interpreted completely literally. There was Shailer Matthews, Dean of the Chicago University Divinity School, and Hays said he was going to point out how there are actually two accounts of creation given in the Book of Genesis - there’s the main one, Genesis 1, the waters and the 6 days, and God seeing that everything was good and all that, but then there’s a paragraph in Genesis 2, that seems to give a contradictory account:

Now no shrub had yet appeared on the earth and no plant had yet sprung up, for the Lord God had not sent rain on the earth and there was no one to work the ground, but streams came up from the earth and watered the whole surface of the ground. Then the Lord God formed a man from the dust of the ground and breathed into his nostrils the breath of life, and the man became a living being.” 

If he’d been allowed to testify, Shailer Matthews would apparently have pointed out that in this account the Hebrew word used for a living being is the same as used earlier for the Animals, and you could argue that what’s being described is this purely animal life being created and becoming human later on, and you could argue that this sort of mirrors the Theory of Evolution, and might have been an attempt by the writers at hinting at the development of humans from animals by a process of guided evolution.

There was a statement from the Methodist Pastor Herbert E. Murkett. He talked about the creation of Humans as described in Genesis Chapter 2, where God made them from dust. He pointed out that this account says nothing about the actual mechanism that God used to make humans, or how long it took, or anything like that. It just says God made them from dust. For all we know it might have been by a process of guided evolution.

Perhaps most interestingly of all, on the Bible front, was Dr. Herman Rosenwasser, a Rabbi based in San Francisco, and an expert on Biblical Hebrew. Scopes had met him at the weekend, and was very impressed with his ability to describe the possible range of translations of just about any word in the entire Bible. His statement was about how there are all sorts of ways you can translate the Bible to make it say all sorts of different things. He mentioned how the original Hebrew text of the Bible, and the Torah scrolls read in synagogues, don’t mark vowels, meaning that marks indicating the correct vowels have had to be added later to clarify potential ambiguities (For more information here I would like to point you in the direction of Episode 11 of this very podcast - The Forbidden Experiment, Part 4. There’s a bit about Elias Levita and the Hebrew Vowel Point Controversy in the 16th Century).

Rosenwasser gave some examples of potential alternative translations of Hebrew words, as opposed to the translations used in the King James Bible. For example bara, rendered as create in the King James Version, might actually be better translated as ‘set in motion’, and if you use that translation it’s much less clear that the Bible is advocating a one-off creation of life, fully-formed, rather than God setting in motion a process of evolution.

And as well as Bible nerds there were also science nerds. 

Maynard Metcalf was back, not physically, but at least in spirit, to continue where he left off. Having conclusively settled the whale question in favour of that magnificent beast’s mammalian nature, he laid out more evidence for evolution - the fossil record, the way the development of embryos parallels the increase in complexity we can see in living organisms, the geographical distributions of species showing how the divergence of their characteristics corresponds to geographical divergence, as if different populations evolved in separate directions as they became geographically separated.

And he absolutely went Bryan mode on the Fundamentalists. 

There is no conflict, no least degree of conflict, between the Bible and the fact of evolution, but the literalist interpretation of the words of the Bible is not only puerile; it is insulting, both to God and to human intelligence.

But the fundamentalist would do much worse than insult God. He is in reality, although he doesn't realize this, trying to shut man's mind to God's ever-growing revelation of Himself to the human soul. He teaches, in effect, that God's revelation of Himself was completed long ago, that He long ago ceased to unfold His mind to men, in new revelation. This is evil influence, criminal, damnable.”

There was a statement from the Anthropologist Faye Cooper Cole. He wrote about evidence for evolution in the current anatomy of humans, in the form of organs that don’t serve any obvious purpose anymore, like the tails of a human embryo, or the muscles behind the ears, but that resemble other animals, and he also talked about evidence for human evolution in the form of finds of early human remains (and yes, he did count Piltdown Man as one of those finds).

And the statement from the zoologist Winterton C. Curtis presented more evidence for evolution, and pointed out the lack of evidence for creation as described by Biblical Literalists, and he emphasised that, while the theory of evolution purely by natural selection, in exactly the way Darwin proposed, was the subject of legitimate scientific controversy, the fact that evolution happened (whatever the mechanism behind it) was totally uncontroversial. He even brought up a letter endorsing evolution from none other than William Jennings Bryan’s former employer himself, Woodrow Wilson, former President of the US of A. 

There were statements from two geologists - Wilbur Nelson, the Tennessee State Geologist, and Kirtley Mather, Chair of the Harvard University Geology Department, and they both wrote about geological evidence for the age of the Earth, and about the fossil record showing abundant evidence for the gradual development of increasingly complex life forms.

There was the Soil Chemist Jacob Lipman. His statement went into considerable detail about the geological processes leading to the formation of soils, and how these related to the development of plants and bacteria that both live in and help to form soils, and explained how important this knowledge is to improving agricultural yields.

The Psychologist Charles Hubbard Judd’s statement explained that the discipline of psychology is heavily dependent on the theory of evolution and it would be much harder to effectively study or teach psychology if you weren’t allowed to refer to it. And finally, there was the zoologist Horatio Hackett Newman. His statement covered arguments from vestigial structures, embryology, animal taxonomy, early human remains, and even an argument from blood composition. Apparently if you water down human blood and gradually inject it into a rabbit’s bloodstream, in very small quantities, the rabbit eventually gets used to it after an initial reaction. 

Apparently the reaction is less extreme with monkeys, demonstrating how humans are quantifiably more closely related to monkeys than to rabbits.

This took up all of the morning session and rolled over into the afternoon, and honestly wasn’t that interesting for the reporters (they could just print the statements without having to listen to them being read out), so even more of the reporters had left by the time the afternoon session started. The courtroom was extremely hot, they’d been covering the trial for over a week now, and it wasn’t as if anything else interesting was likely to happen. 

Darrow began the afternoon session by apologising for the way he’d spoken to the judge on Friday. Raulston dropped the contempt charge, placing a particular emphasis on the Christian nature of his act of forgiveness to the Agnostic defence attorney.

The Man that I believe came into the world to save man from sin, the Man that died on the cross that Man might be redeemed, taught that it was godly to forgive, and were it not for the forgiving nature of Himself, I would fear for man. The Savior died on the cross pleading with God for the men who crucified him. I believe in that Christ. I  believe in these principles. I accept Colonel Darrow's apology.”

It has become unavoidable at this point to bring to your attention this particular court’s strange practice of assigning honorifics to the trial’s participants. Darrow and Bryan were both ‘Colonel’, Thomas Stewart, the Tennessee Attorney General, was ‘General’, etc. Perhaps most confusingly of all, in a courtroom setting, John Randolph Neal was addressed as ‘Judge’. 

Now, the first-floor courtroom was massively overcrowded at this point, with a frankly unreasonable number of people desperate to get a glimpse of the Trial of the Century. And there was apparently a rumour going round that there were cracks forming in the ceiling below. While this was in fact complete nonsense, and it wouldn’t have been particularly difficult to check, fear of an impending mass casualty incident was a very convenient excuse for Raulston to get out of the intense, stifling heat in the courtroom.

In a somewhat unorthodox decision, the trial was to continue outdoors, on a makeshift platform in the shade of a few oak and maple trees outside the courthouse.

This had a couple of consequences. First, it meant there was absolutely no limit at all on the size of the crowd. They filled the lawn and all the way down the surrounding streets. Second, it meant that there was now, directly in view of everyone, right in front of where the jury were going to sit when they came back, a large sign saying Read your Bible”. Darrow insisted that it should be removed. Or alternatively, he suggested that they could put up a second sign, the same size, next to it, saying Read your Evolution”. The judge agreed to go with the former option and have the sign removed.

Hays finished off reading the statements. This was all the evidence the defence had, and none of it was admissible. There was nothing left but to find Scopes guilty.

Or at least, that would have been all that was left, but for one more bit of business - Clarence Darrow’s Bible Expert”.

The defence desires to call Mr. Bryan as a witness.”

There would probably have been a long argument between the two sides over whether this was allowed, with the judge most likely ruling in favour of the prosecution. It’s the sort of situation where I can imagine Raulston frantically flicking through a comically-oversized book simply titled “rules”. But that question became moot when Bryan himself enthusiastically agreed to the debate, on condition he’d be allowed to cross-examine Darrow, Hays and Malone afterwards. He’d been one-upped by Malone’s speech, and now was his chance to get his own back.

The cross-examination would be the responsibility of Bryan’s old rival, Clarence Darrow.

Almost exactly two years earlier, Clarence Darrow had written to the Chicago Tribune with a series of questions for William Jennings Bryan, interrogating the exact limits of his Biblical Literalism and trying to poke holes in it. Was Earth created in 6 literal 24-hour days, less than 6,000 years ago? How did Noah get all the animals to the ark? Did Jesus genuinely cast demons out of a man into some pigs? That sort of thing.

Bryan had simply ignored Darrow, but now he was back for a rematch. He’d joined the defence team in a large part because Bryan was prosecuting, and this would be his chance to debate him in public. Darrow was an attorney, and Bryan was a witness on the stand. He had no choice but to answer whatever Darrow asked.

You have given considerable study to the Bible, haven't you, Mr. Bryan?”

Yes, sir, I have tried to.”

And then we got to the questioning itself:

Do you claim that everything in the Bible should be literally interpreted?”

Bryan was careful with his answers, obviously trying to anticipate how Darrow would try to catch him out.

I believe everything in the Bible should be accepted as it is given there; some of the Bible is given illustratively. For instance: ‘Ye are the salt of the earth.’ I would not insist that man was actually salt, or that he had flesh of salt, but it is used in the sense of salt as saving God's people.”

First up, back on the whale topic: Jonah.

Now, you say, the big fish swallowed Jonah, and he there remained how long - three days - and then he spewed him upon the land. You believe that the big fish was made to swallow Jonah?”

I am not prepared to say that; the Bible merely says it was done.”

You don't know whether it was the ordinary run of fish, or made for that purpose?”

You may guess, you evolutionists guess.”

But when we do guess, we have a sense to guess right.”

Next, the bit where the Bible says Joshua made the Sun stay still. Did that actually happen? Given that Earth orbits the Sun, shouldn’t it have actually been the Earth standing still?

Bryan was clearly struggling with this one, to the point that Stewart asked the judge to intervene and stop this clearly irrelevant cross-examination. Bryan, though, was having none of it.

It seems to me it would be too exacting to confine the defense to the facts; if they are not allowed to get away from the facts, what have they to deal with?”

Bryan’s eventual response, after trying to dodge the question for a while, was that the Bible was written using language that would be understood at the time. Darrow certainly seems to have taken this as opening the door to figurative interpretations of the Bible more generally.

Darrow moved on, and started trying to get to the bottom of Bryan’s understanding of Biblical Chronology, and whether he literally believed that Earth was actually created in 4004 BC (as determined by James Ussher adding up the ages of Biblical figures in the 17th Century).

With Bryan managing to avoid giving a straight answer, Stewart tried again to shut the questioning down, and it might have worked had Bryan himself not insisted on being questioned.

They came here to try revealed religion. I am here to defend it, and they can ask me any question they please.”

Darrow continued this line of questioning:

Whatever human beings, including all the tribes, that inhabited the world and have inhabited the world; and who run their pedigree straight back, and all the animals, have, come onto the Earth since the Flood.”

Yes”. Bryan agreed. Darrow continued.

Within 4,200 years. Do you know a scientific man on the face of the earth that believes any such thing?”

I cannot say, but I know some scientific men who dispute entirely the antiquity of man as testified to by other scientific men.”

Darrow had got Bryan to admit that he believed the literal Biblical account of the date of the flood.

Then there was the Tower of Babel. Did Bryan believe that all the languages of humankind were created in an instant of divine punishment around 4,150 years ago? Apparently he did. A highlight of the questioning was this moment:

Did you ever study philology at all?”

No, I have never made a study of it, not in the sense that you speak of it.”

You have used language all your life?”

Well, hardly all my life. Ever since I was about one year old.”

But even if Bryan believed the Bible required him to believe that the Flood, and the Tower of Babel, took place only a few thousand years ago, he did seem to be willing to compromise on the age of the Earth itself. Bryan was not, in fact, a Young Earth Creationist. Like many Fundamentalists of the time, he was in fact a Day-Age Creationist, who believed that the ‘days’ of creation in the Book of Genesis in fact referred to much longer periods, and said as much to Darrow.

Would you say that the earth was only 4,000 years old?

Oh, no; I think it is much older than that.”

How much?”

I couldn't say.”

Do you say whether the Bible itself says it is older than that?

I don't think the Bible says itself whether it is older or not.

Do you think the earth was made in six days?”

Not Six Days of Twenty-four Hours.”

This admission was the kind of thing Darrow was looking for. Bryan had admitted to believing that something in the Bible wasn’t to be taken completely literally - and if that shouldn’t be, then why should anything else?

Darrow was in charge here. Bryan was a skilled orator, and politician - he could give speeches, but he hadn’t been a lawyer for several decades.

But Darrow was a lawyer. His job was cross-examining witnesses, and this was what he was doing now. Bryan tried to bring this situation back under control, playing to his strengths. To an applauding crowd, he declared:

I am not trying to get anything into the record. I am simply trying to protect the word of God against the greatest atheist or agnostic in the United States. I want the papers to know I am not afraid to get on the stand in front of him and let him do his worst. I want the world to know.”

Stewart leapt in again, trying to get the Judge to shut it down. Hays gave the counterargument that the law never specified that to break it a teacher had to contradict a literal interpretation of the Bible. If Bryan said that not everything in the Bible had to be interpreted literally, then the prosecution’s case would be much weaker. There would be some purpose to this questioning.

The judge ruled that the questioning wasn’t going to be admissible, but he’d let it continue for the purposes of the appeal. 

Now for more questioning from Darrow. Was Eve literally made from Adam’s rib? Bryan believed, straightforwardly, that she was. And then another question lifted straight out of the series of questions that Darrow had posed to Bryan in the Chicago Tribune two years ago:

Did you ever discover where Cain got his wife?”

No, sir; I leave the agnostics to hunt for her.”

You have never found out?”

I have never tried to find.”

You have never tried to find?”

No.”

The Bible says he got one, doesn't it? Were there other people on the earth at that time?”

I cannot say.”

You cannot say. Did that ever enter your consideration?”

Never bothered me.”

There were no others recorded, but Cain got a wife.”

That is what the Bible says”

This seems like it could be a difficult question for a Biblical Literalist - the Bible mentions three children of Adam and Eve - Cain, Abel and Seth, all of them Male. And yet Cain had a son, Enoch, despite the fact that the only other humans in existence seem to have been his parents (he’d murdered Abel by this point and Seth hadn’t been born yet). And the Bible specifically states that he made love to his wife”, so there’s no room for any kind of weird parthenogenesis workaround. 

Yet, it does have a clear Biblical Literalist answer. According to that most credible of sources, answersingenesis.org

The simple answer is that Cain married his sister or another close relation, like a niece.”

This answer relies on Adam and Eve having other children that aren’t mentioned by name. answersingenesis.org takes great pains to point out that God didn’t need to introduce rules against this sort of thing until much later in the Bible.

Bryan could have said this, but he didn’t. His response to Darrow was simply evasive snark. He mostly just came across as ignorant and incurious. 

And then back to the age of the Earth, for Bryan to clarify his position further.

This was a point that Darrow wanted to press because it clearly made Bryan look weak. At the time, Anti-Evolutionist opinion was genuinely divided on the issue - Day-Age Creationism and Gap Creationism, that attempted to reconcile a literal reading of the Biblical account of creation with the well-established Geological fact that Earth was obviously far more than a few thousand years old, were very popular, and it was only in the subsequent decades that Young-Earthers would start to overwhelmingly dominate organised Creationist movements.

Day-Age Creationism suited Bryan’s overall philosophical outlook quite well. His main issue with the theory of Evolution was how it seemed to threaten the dignity of humankind by making humans purely a product of natural processes. The age of the Earth wasn’t a threat in the same way, so it made sense that this would be a position that Bryan was prepared to compromise on. Nevertheless, by not emphasising this position, and focussing purely on issues of Biological Evolution, and the moral hazards of teaching it, he had made sure his message would be well-received across the Creationist Spectrum. And by forcing him to publicly talk about the age of the Earth, Darrow was forcing Bryan to risk losing face in front of the Young Earthers. 

And then the questioning came round to Eve, and the snake, and the apple, and personally my favourite question of the lot:

I will read it to you from the Bible: "And the Lord God said unto the serpent, because thou hast done this, thou art cursed above all cattle, and above every beast of the field; upon thy belly shalt thou go and dust shalt thou eat all the days of thy life." Do you think that is why the serpent is compelled to crawl upon its belly?”

I believe that.”

Have you any idea how the snake went before that time?”

No, sir.”

Do you know whether he walked on his tail or not?”

No, sir. I have no way to know.”

And Bryan lost it at Darrow:

Your honor, I think I can shorten this testimony. The only purpose Mr. Darrow has is to slur at the Bible, but I will answer his question. I will answer it all at once, and I have no objection in the world, I want the world to know that this man, who does not believe in a God, is trying to use a court in Tennessee…”

I object to that.” Darrow interrupted. Bryan continued.

...to slur at it, and while it will require time, I am willing to take it.”

Darrow Replied: “I object to your statement. I am exempting you on your fool ideas that no intelligent Christian on earth believes.”

And then Raulston finally put a stop to this strange farce and adjourned the court for the day. Scopes left with the few journalists who’d had the foresight to stay and witnessed this remarkable spectacle, helping to type up his account of what happened on this most bizarre day in court.

Going into Day 8, it was clear that there wasn’t much left to do. While Darrow’s cross-examination had certainly been entertaining, it only had the most tenuous connection to the actual case, and the judge had already ruled it inadmissible. He’d only allowed it to happen at all on the off-chance the Supreme Court might be interested in it at the appeal.

William Jennings Bryan had wanted to do his own cross-examination, of each of Darrow, Hays and Malone in turn, and the Daytonians were no doubt hoping he would, and drag out their five minutes of fame for a few more days, but after yesterday’s chaos Stewart had managed to persuade him not to continue embarrassing himself. Stewart, after all, wasn’t particularly interested in creation and evolution, or for that matter William Jennings Bryan’s ego. As he saw it, Scopes had broken the law, and his job as a prosecutor was to secure a guilty verdict. He’d already succeeded at that, because the defence had no admissible evidence, and Bryan’s cross-examination of the defence team would serve absolutely no discernible evidentiary purpose.

The goal for the defence now was to get the trial over with, to deny Bryan a chance to respond to Darrow’s questioning with a big speech that would dominate the papers.

So Darrow conceded. The jury returned. Raulston told them to find the defendant guilty. Darrow told the jury to find the defendant guilty. Stewart told the jury to find the defendant guilty. And based on what they’d been allowed to see of the trial (i.e. a few witnesses testifying that Scopes had broken the law, to which the defence had no response), it was a no brainer for them. When they filed back into the courtroom, they delivered the verdict:

We have found for the state. We have found the defendant… Guilty.”

And that was that.

Technically the jury was supposed to set the fine, but they asked the judge to, and he did, and nobody complained. He fined Scopes $100, the minimum fine allowed by the law, and Neal reminded him of something he’d missed. 

Have you anything to say, Mr. Scopes, as to why the Court should not impose punishment upon you?”

Scopes hadn’t expected to have to speak, and didn’t have anything prepared. Nevertheless, he did speak, the only time the eponymous hero  spoke in the entire trial.

Your honor, I feel that I have been convicted of violating an unjust statute. I will continue in the future, as I have in the past, to oppose this law in any way I can. Any other action would be in violation of my ideals of academic freedom, that is to teach the truth as guaranteed in our constitution, of personal and religious freedom. I think the fine is unjust.”

After this point, the tone of the proceedings seems to shift, to become good-natured and amicable. As if now the trial was over all the participants could drop the act and shake hands and congratulate each other on how well they’d played the roles of prosecution and defence.

H.L. Mencken’s paper, the Baltimore Evening Sun, posted Scopes’s bond, and Bryan couldn’t resist giving a speech after all:

Here has been fought out a little case of little consequence as a case, but the world is interested because it raises an issue, and that issue will some day be settled right, whether it is settled on our side or the other side. It is going to be settled right. There can be no settlement of a great cause without discussion, and people will not discuss a cause until their attention is drawn to it, and the value of this trial is not in any incident of the trial, it is not because of anybody who is attached to it, either in an official way or as counsel on either side. Human beings are mighty small, your honor. We are apt to magnify the personal element and we sometimes become inflated with our importance, but the world little cares for man as an individual. He is born, he works, he dies, but causes go on forever, and we who participated in this case may congratulate ourselves that we have attached ourselves to a mighty issue.”

Darrow thanked the people of Dayton, and the Judge, and gave his own speech in reply to Bryan.

Of course, there is much that Mr. Bryan has said that is true. And nature - nature, I refer to does not choose any special setting for more events. I fancy that the place where the Magna Carta was wrested from the barons in England was a very small place, probably not as big as Dayton. But events come along as they come along. I think this case will be remembered because it is the first case of this sort since we stopped trying people in America for witchcraft because here we have done our best to turn back the tide that has sought to force itself upon this--upon this modern world, of testing every fact in science by a religious dictum. That is all I care to say.”

The audience laughed as Hays presented the judge with copies of Darwin’s Origin of Species and Descent of Man, and it was done. Next step, the appeal. To Knoxville, to the Supreme Court of Tennessee and then, if it came to it, to Washington, to the Supreme Court of the United States of America.

And that’s a good place to stop for now. There is more to come though, we’ve got the whole appeal to deal with for one.


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