By Marcia Coyle, from The National Law Journal

A search of oral argument transcripts reveals “pope” references in 11 cases from the past 60 years.

Talk show hosts, politicians, Catholics, wary commuters—everyone’s talking about Pope Francis’ visit to the United States. Even U.S. Supreme Court justices have raised the “pope,” but not Francis, in oral arguments over the years in such diverse contexts as marijuana rallies, union boycotts and alleged communist sympathizers.

The word “pope,” as in leader of the Roman Catholic Church, was mentioned in 11 cases during oral arguments in the past 60 years—the most recent in 2011 and the oldest in 1959, according to the NLJ’s review of SCOTUS Search, a database of transcripts.

Some popes were named specifically, such as Pius XII, John XXII, John Paul II and, yes, even Leo XIII.

What follows are highlights from those cases. The quotes were taken from transcriptions of U.S. Supreme Court arguments on file at Chicago-Kent College of Law’s Oyez site.

Pope Pius XII makes his debut, in 1959

Pope Pius XII debuted in the oldest case: Uphaus v. Wyman. In that 1959 case, a 5-4 court upheld the civil contempt judgment and jail sentence of Willard Uphaus, who refused to produce the names of all persons who attended a summer camp during 1954 and 1955 run by his employer. The New Hampshire attorney general sought the names because he was investigating violations of the state’s Subversive Activities Act.

The attorney general had submitted to the lower court a long list of reasons to justify his demand. During high court arguments, Uphaus’ counsel, Royal France, read the list, which he said included a petition Uphaus had signed seeking clemency in the Julius and Ethel Rosenberg spy case:

“I have it here, a photostatic copy of this petition which contains the names of several hundred of the prominent clergymen and religious leaders of the country in which they asked the president to exercise—to suspend the death sentence in the Rosenberg case as, indeed, did the late Pope Pious (sic) XII,” said France, adding, “Whether or not the attorney general believes that clemency should have been granted to the Rosenbergs, it was certainly a protected activity.”

Roberts invokes the Pope

In the most recent case, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the justices examined the so-called “ministerial exception” prohibiting most employment-related lawsuits against religious organizations by employees who perform religious functions. Did it apply to a teacher who teaches the full secular curriculum in addition to religion classes and is a commissioned minister?

Justice Elena Kagan asked Walter Dellinger of O’Melveny & Myers to assume there was a categorical exception for “ministers” and to tell her who counts as a minister. Dellinger answered that, if that were the test, then the lower court was correct to hold that the teacher in the case was not a minister, because she performed important secular functions.

Dellinger was interrupted by Chief Justice John Roberts. “I’m sorry to interrupt you, but that can’t be the test. The pope is a head of state carrying out secular functions, right? Those are important. So he is not a minister?”

Dellinger said that was what was wrong with the categorical approach argued by his oponent.

The court unanimously ruled for the church.

Sorry, pope, the park is closed

In Thomas v. Chicago Park District (2002), the justices rejected arguments by the Windy City Hemp Development Board, which advocated marijuana legalization, that the First Amendment required judicial review or other procedural safeguards when the park district denied a permit to hold a rally. The board’s attorney, Richard Wilson, said “first come, first served” was a reasonable rule.

But then the following exchanges occurred:

Unidentified Justice: “When Pope Paul visited … John Paul visited Chicago, there was a rally or a gathering in the Chicago parks. If your client had filed for that day two years earlier, right, the park would have to say (to the pope), ‘Gee, I’m sorry.’ The park couldn’t have a 30-day-before rule: We’re not going to grant any applications until 30 days before the event, and we’re going to look over all of the feasible applications at that point. That would not be reasonable?”

Mr. Wilson: “Justice Scalia—

Unidentified Justice: “So that it finds, gee, you know, the pope is only going to be here one day, and you know, maybe we can have this—Hemp concert—Hemp concert later, yes.”

The pope in a hypothetical

The pope was in a hypothetical in Longshoremen v. Allied International, a 1982 case in which the president of the International Longshoremen’s Association ordered his members to stop handling cargoes arriving from or destined for the Soviet Union in protest of the Russian invasion of Afghanistan. The court ruled unanimously that the refusal was an illegal secondary boycott.

During arguments, an unidentified justice said to the union’s counsel, Ernest Mathews Jr.: “What about refusing to handle any goods from Italy on the grounds that they’re trying to bring pressure on the Pope on some of this positions on abortion and so forth?”

Mathews answered: “Of course, your honor, you can make a million examples. The point is the world was outraged at Afghanistan, as we have been by Poland. The pope himself said don’t stand by, world, and let solidarity go down the drain.”

Popes Leo XIII and John XXIII

In National Labor Relations Board v. Catholic Bishop of Chicago (1979) the court ruled that the board did not have jurisdiction over lay faculty members at two groups of Catholic high schools.

Then-solicitor general Wade McCree, defending the board, argued that the Catholic position, as far as labor unions are concerned, is supportive of them: “We would refer the court to an encyclical of Pope Leo XIII, Rerum Novarum which recognized the right of employees to organize and bargain collectively. And more recently, Mater et Magistra which is an encyclical of Pope John XXIII, I believe in 1961, which also took the same position.”

Government and religion clash

In the other cases, references to the pope arise as the justices struggle with the intersection of government and religion.

In Lynch v. Donnelly (1984), the court ruled 5-4 that inclusion of a nativity scene in Pawtucket, Rhode Island’s Christmas display did not violate the First Amendment’s establishment clause.

Chief Justice Warren Burger recalled a ceremony held on the National Mall several years earlier: “My recollection is from news accounts there were 200,000 or 300,000 people, in any event a great many people, and the ceremony was presided over by Pope John Paul II. Would you say that was a step toward or an establishment of religion violative of the religion clauses?”

The objector’s counsel, Amato DeLuca, said: “…it was my understanding, Mr. Chief Justice, that that property has been used traditionally or historically as a place where people can express their principles, beliefs or nonbeliefs, so that in that context I think that it was inappropriate to have a Mass being said by the pope because I think that in a sense, that that was an establishment or sponsorship of religion. But at least the argument there that could be made is that it was a forum that was provided to all people, regardless of their beliefs, regardless of their principles, as opposed to a specific sponsorship of a religious symbol, as it is in this case.”

The remaining cases:

► Widmar v. Vincent (1981). The court held 8-1 that the University of Missouri at Kansas City’s regulation prohibiting the use of university buildings or grounds for religious worship or religious teaching violated the First Amendment.

► Gillette v. United States (1971). The justices ruled 8-1 that a conscientious objection to a particular war (Vietnam War) rather than to all war, does not qualify for a military service exemption.

► Abington School District v. Schempp (1963) held 8-1 that a Pennsylvania law and school district policy requiring Bible readings and the Lord’s Prayer in public school classrooms violated the First Amendment.

► Engel v. Vitale (1962), a 6-1 decision that voluntary, nondenominational prayer at the start of each school day violated the First Amendment.

► Santa Clara Pueblo v. Martinez (1978), ruling 7-1 that the suit challenging the tribe’s ordinance denying membership to the children of certain female tribal members under the Indian Civil Rights Act of 1968 is barred by tribal sovereign immunity.

IMAGE: Pope Francis on St. Peter’s square at The Vatican. June 6, 2014. Photo: Alfredo Borba via Wikimedia Commons

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