dissenting.
The majority reverses the district court based on two conclusions: (1) the Detroit ordinance is constitutional only if it survives “strict scrutiny;” and (2) the ordinance does not pass this rigorous test. I agree with the second conclusion — as the Supreme Court has noted, “it is the rare case in which ... a law survives strict scrutiny.” Burson v. Freeman, 504 U.S. 191, 211, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992). I do not agree, however, that the ordinance is constitutional only if it survives strict scrutiny analysis. Accordingly, I respectfully dissent.
The majority notes that, in Lac Vieux I,1 a different panel concluded that the pref*881erence provisions contained in the ordinance “implicate[ ] the First Amendment.” 172 F.3d at 409. I agree with the majority, op. at 878-79, that this is the law of the ease. I do not agree with the majority, however, that it is also the law of the case that the test for constitutionality which the ordinance must survive is strict scrutiny. While the panel in Lac Vieux I wrote: “[although the district court and the parties have provided little guidance on the question, principally because the district court did not reach this issue, we conclude that the ordinance is content-based and is therefore subject to strict scrutiny,” id. at 409-10 (emphasis added), that conclusion was gratis dictum. See Black’s Law Dictionary (7th ed. 1999) (defining gratis dictum as “a court’s discussion of points or questions not raised by the record”). In fact, the ruling in Lac Vieux I was simply and only that the Lac Vieux tribe had standing to challenge the Detroit ordinance and that such a challenge did “implicate the First Amendment.” The statement that, on remand, the district court should apply a strict scrutiny analysis to the Detroit ordinance was not necessary to the panel’s ruling.
Of course, the district court would have been unwise to ignore the suggestions made in Lac Vieux I on how to proceed. I disagree, however, that this Court is constrained by the law of the case doctrine to follow that same suggestion. As the Lac Vieux I panel expressly stated, at that juncture, neither the parties nor the district court had addressed the critical issue of the appropriate level of constitutional review. As noted, the district court below and the parties on appeal in Lac Vieux I focused on whether the plaintiff had standing to assert its claims at all and whether, if so, those claims were even cognizable under the First Amendment-legal questions that were hotly disputed. To the extent the Lac Vieux I panel expressed an opinion on anything beyond those threshold questions, accordingly, it did so without the benefit of briefing, argument, or a lower court decision on the issue. In contrast, the briefing before this panel contains substantial argument regarding the proper constitutional standard to be applied in the circumstances presented here. I do not believe we should relegate the analysis of this critical question to a one-sentence reference in a prior opinion, out of an unnecessary desire to adhere to the law of case doctrine. Indeed, I do not believe the Lac Vieux I panel would feel bound by its own dicta, or expect this panel to be bound by it.
Furthermore, even if Lac Vieux I did establish the law of this case to be that the Detroit ordinance must be narrowly drawn to serve a compelling state interest, I still believe we should not be bound by this pronouncement. “A court has the power to revisit prior decisions of its own or of a coordinate court in any circumstance, although as a rule courts should be loathe to do so in the absence of extraordinary circumstances such as where the initial decision was ‘clearly erroneous and would work a manifest injustice.’ ” Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 817, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988) (quoting Arizona v. California, 460 U.S. 605, 618, n. 8, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983)). I am afraid that, in fact, the pronouncement in Lac Vieux I that the ordinance must survive strict scrutiny is clearly erroneous, and that application of this test would work a manifest injustice.
In Board of County Comm’rs, Wabaunsee Cty., Kansas v. Umbehr, 518 U.S. 668, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996), the Supreme Court considered the question of “whether, and to what extent, the First *882Amendment restricts the freedom of federal, state or local governments to terminate their relationships with independent contractors because of the contractors’ speech.” Id. at 673-74, 116 S.Ct. 2342. Resolving “a conflict between the Courts of Appeals,” the Supreme Court held that: (1) the First Amendment does protect independent contractors from termination of government contracts in retaliation for exercising free speech rights; and (2) “the Pickering balancing test, adjusted to weigh the government’s interests as contractor rather than as employer, determines the extent of their-protection.” Id. at 673, 116 S.Ct. 2342 (citing Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., Illinois, 391 U.S. 663, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)); see O’Hare Truck Service, Inc. v. City of Northlake, 618 U.S. 712, 719, 116 S.Ct. 2353, 135 L.Ed.2d 874 (1996).
The Pickering balancing test, in turn, calls for weighing the plaintiffs “right to speak on a matter of public concern against ‘the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’ ” Hardy v. Jefferson Community College, 260 F.3d 671, 679-80 (6th Cir.2001) (quoting Pickering, 391 U.S. at 568, 88 S.Ct. 1731). And, when measuring the balance, a district court should “deferentially view” the state’s “legitimate interests as contractor.” Umbehr, 518 U.S. at 685, 116 S.Ct. 2342. The likelihood that the Detroit ordinance could pass constitutional muster under this test, of course, is far higher than under the strict scrutiny test.
Indeed, even this Umbehr/Pickering balancing test may be too stringent. The Supreme Court in Umbehr was careful to note the “limited nature” of its decision, stating that, because the plaintiffs lawsuit “concern[ed] the termination of a •pre-ex-isting commercial relationship with the government, [the Court did] not address the possibility of suits by bidders or applicants for new government contracts who cannot rely on such a relationship.” Id. at 685, 116 S.Ct. 2342 (emphasis added). When, as here, there is not a pre-existing commercial relationship between the state and the bidder or applicant for a government contract, the balance falls even more in favor of the state. See McClintock v. Eichelberger, 169 F.3d 812, 815-17 (3rd Cir.1999), cert. denied, 528 U.S. 876, 120 S.Ct. 182, 145 L.Ed.2d 154 (1999) (noting, in circumstances similar to those presented in this case, that the balancing test called for by Umbehr and O’Hare was too strict, because the plaintiff did not have a pre-existing, ongoing contractual relationship with the state). In fact, at least one district court has applied McClintock and concluded that, when there is “no such ongoing commercial relationship, there is no First Amendment protection and thus in the absence of such a relationship, a cause of action is not recognized for failure to award a contract in retaliation for exercise of one’s First Amendment rights.” Halstead v. Motorcycle Safety Foundation Inc., 71 F.Supp.2d 464, 473-74 (E.D.Pa.1999).
Laudably, the panel in Lac Vieux I tried to give the district court some guidance on how to measure the constitutionality of the Detroit ordinance. As the panel admitted, however, “the district court and the parties have provided [us with] little guidance on the question” of the correct standard of constitutional review. Lac Vieux I, 172 F.3d at 409. Indeed, in the absence of this guidance, the Lac Vieux I panel looked to cases involving criminal ordinances restricting speech, rather than to Umbehr or O’Hare, when it suggested the appropriate level of review. Id. at 409-10 (citing R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382-383, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), in which a criminal defendant *883challenged an ordinance prohibiting bias-motivated disorderly conduct, and Frisby v. Schultz, 487 U.S. 474, 481, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988), in which abortion protestors challenged an ordinance prohibiting picketing near an individual dwelling).
On remand, the district court struggled to reconcile the panel’s reference to strict scrutiny with the Supreme Court’s recognition in Umbehr and O’Hare of the circumscribed nature of the right at issue in these circumstances. The district court did so by finding that the right rested at the fringes of any strict scrutiny concern and that the level of review should be more deferential to the state than normally required when strict scrutiny applies. While as the majority concludes, that approach may be inappropriate, it is understandable given the obvious tension between the strict scrutiny reference in Lac Vieux I and the Supreme Court’s contrary holdings in Umbehr and O’Hare.
While the majority is correct that strict scrutiny is not flexible enough to support the district court’s conclusion on remand, I believe that, by accepting strict scrutiny as the standard to be applied in this case, the majority is committing error and forcing a manifest injustice on the parties. Even worse, I am not at all clear precisely what that injustice might be; the majority opinion does not explain what the district court should actually do, now, on remand. Should it “determine whether the offending provisions are severable from the remainder of the ordinance?” Lac Vieux I, 172 F.3d at 410. Revoke the appellees’ licenses? Require the existing multi-mil-lion dollar casinos be razed? Hold a trial to measure damages? Hold a trial to determine if the appellant would have secured a license?2
With all due respect to the panel in Lac Vieux I, and to my co-jurists in the majority who feel bound by Lac Vieux I, I believe the standard of constitutional review employed in this case is incorrect. To adopt it puts us at odds with binding Supreme Court precedent and our sister Circuit Courts of Appeals. See, e.g., McClintock, 169 F.3d at 815-17; Shahar v. Bowers, 114 F.3d 1097, 1102-03 (11th Cir.1997) (en banc), cert denied, 522 U.S. 1049, 118 S.Ct. 693, 139 L.Ed.2d 638 (1998) (“the [Umbehr] Court held that government contractors are protected from termination or failure to renew their contracts for exercising their free speech rights and that the Pickering balancing test is the appropriate standard for determining whether a First Amendment violation has occurred”). Indeed, it puts us at odds with prior opinions of this very Court. See, e.g., Thaddeus-X v. Blatter, 175 F.3d 378, 392 (6th Cir.1999) (noting that the Pickering/Umbehr test has been “applied in a variety of First Amendment settings,” including even “the prison context”).
Accordingly, I dissent, and suggest that this issue might be suitable for further review.
. Lac Vieux Desert Band v. Michigan Gaming Control Board, 172 F.3d 397, 409 (6th Cir.1999).
. The Lac Vieux I panel concluded that the appellant had carried its “burden on summary judgment" of showing it was “ready and able to submit a proposal and that it was willing and able to pay the associated fees.” 172 F.3d at 406 (emphasis added). In other words, there existed material questions of fact regarding whether the tribe was ready, willing, and able timely to do what was required to obtain a license. Appellees argue-correctly, it appears to me-that they could still prevail on all pending claims at trial if they prove that, in fact, the appellant was not ready, willing, and able to meet these requirements.