Immediately upon the rapping of the bailiff for order in the courtroom, and before the regular session was opened, the following proceedings occurred:
The Court--Rev. Stribling, will you open with prayer?
Mr. Darrow--Your honor, I want to make an objection before the jury comes in.
The Court--What is it, Mr. Darrow?
Mr. Darrow--I object to prayer and I object to the jury being present when the court rules on the objection.
Gen. Stewart--What is it?
The Court--He objects to the court being opened with prayer, especially in the presence of the jury.
Mr. Stewart--The jury is not here.
The Court--No, I do not want to be unreasonable about anything, but I believe I have a right, I am responsible for the conduct of the court, it has been my custom since I have been a judge to have prayers in the courtroom when it was convenient and I know of no reason why I should not follow up this custom, so I will overrule the objection.
Mr. Darrow--I understand from the court himself that he has sometimes opened the court with prayer and sometimes not, and we took no exceptions on the first day, but seeing this is persisted in every session, and the nature of this case being one where it is claimed by the state that there is a conflict between science and religion, above all other cases there should be no part taken outside of the evidence in this case and no attempt by means of prayer or in any other way to influence the deliberation and consideration of the jury of the facts in this case.
The Court--Do you want to say anything?
Mr. McKenzie--That matter has been passed upon by our supreme court. Judge Shepherd took a case from the court, when the jury, after retiring to consider their verdict, at the suggestion of one of them to bow in prayer, asked divine guidance, afterwards delivering a verdict not excepted to, and afterwards taken to the supreme court: It was commendable to the jury to ask divine guidance.
Mr. Darrow--I do not object to the jury or anyone else praying in secret or in private, but I do object to the turning of this courtroom into a meeting house in the trial of this case. You have no right to do it.
The Court--You have a right to put your exceptions on the record.
Gen. Stewart--In order that the record may show the state's position, the state makes no contention, as stated by counsel for the defense, that this is a conflict between science and religion insofar as the merits are concerned, it is a case involving the fact as to whether or not a school- teacher has taught a doctrine prohibited by statute, and we, for the state, think it is quite proper to open the court with prayer if the court sees fit to do it, and such an idea extended by the agnostic counsel for the defense is foreign to the thoughts and ideas of the people who do not know anything about infidelity and care less.
Mr. Hays--May I ask to enter an exception to the statement "agnostic counsel for the defense."
Mr. Malone--I would like to reply to this remark of the attorney-general. Whereas I respect my colleagues, Mr. Darrow's right to believe or not to believe as long as he is as honest in his unbelief as I am in my belief. As one of the members of counsel who is not an agnostic, I would like to state the objection from my point of view. Your honor has the discretion to have a prayer or not to have a prayer. There was no exception offered and I can assure the court when we talked it over among ourselves as colleagues, there was no exception felt to the opening of these proceedings by prayer the first day, but I would like to ask your honor whether in all the trials over which your honor was presided, this court has had a clergyman every morning of every day of every trial to open the court with prayer?
Our objection goes to the fact that we believe that this daily opening of the court with prayers, those prayers we have already heard, having been duly argumentative that they help to increase the atmosphere of hostility to our point of view, which already exists in this community by widespread propaganda.
Gen. Stewart--In reply to that there is still no question involved in this lawsuit as to whether or not Scopes taught a doctrine prohibited by the statute, that is that man descended from a lower order of animals. So far as creating an atmosphere of hostility is concerned, I would advise Mr. Malone that this is a God fearing country.
Mr. Malone--And it is no more God fearing country than that from which I came.
The Court--Gentlemen, do not turn this into an argument.
Mr. Darrow--I would like to reply to counsel, that this statute says no doctrine shall be taught which is contrary to the divine account contained in the Bible. So there is no question about the religious character of these proceedings.
The Court--This court has no purpose except to find the truth and do justice to all the issues involved in this case.
In answer to counsel for the defendant, as to my custom, I will say the several years I have been on the bench I have used my discretion in opening the court with prayer, at times when there was a minister present and it was convenient to do so; other times when there was no large assemblage of people and no minister present, I have not always followed this custom, but I think it is a matter wholly within the discretion of the court.
I have instructed the ministers who have been invited to my rostrum to open the court with prayer, to make no reference to the issues involved in this case. I see nothing that might influence the court or jury as to the issues. I believe in prayer myself; I constantly invoke divine guidance myself, when I am on the bench and off the bench; I see no reason why I should not continue to do this.