dissenting.
The First Amendment of our Constitution treats religion in two respects: Congress shall make no law respecting an establishment of religion but, on the other hand, Congress shall make no law prohibiting the free exercise of religion. Each of these prohibitions is a fundamental part of the heritage of this nation. Many of the early settlers came to the colonies for the purpose of engaging in a free exercise of their religious beliefs, but the need for this freedom of exercise often arose because of the repressive alliance between church and state which tolerated no exercise of other or non-approved religious beliefs. Because it appears to me that the majority opinion crosses the boundary of freedom of exercise into an excessive governmental entanglement with religion, I respectfully dissent.
In reaching the conclusion I have, I have essentially agreed with, and would adopt, the reasoning and analysis of Judge Schwartz in Anderson v. General Dynamics Convair Aerospace Division, 489 F.Supp. 782 (S.D.Cal.1980), appeal docketed, No. 80-5373 (9th Cir. May 14, 1980).1 I am not unmindful that that decision has been appealed to the Ninth Circuit and that oral argument was heard in that court on January 15, 1981. Because of my firm conviction that the correct result was reached by the district court in Anderson, I will adhere to that position irrespective of the result that may be reached by the Ninth Circuit in reviewing'that case. I also see no reason for adding to the analysis of Judge Schwartz. I will therefore confine myself to a few observations directed to the majority opinion in the present case.
That opinion upholds a charity-substitute accommodation as making the religious objector not a “free rider” seeking something for nothing, and opines that the diversion of his contribution to a charity rather than the Union does not make the accommodation unfair or unreasonable. The Union, however, by law is the legal representative of all employees in the Smith unit and it is required to represent all of such employees without discrimination. Further, by a legally valid contract, the Union is entitled to have all employees in the unit contribute their proportionate share of the cost of that representation. The fact should not be significant that by paying over to a charity an amount equivalent to dues Nottelson expends the same amount of money as does another employee who may not be in favor of the Union representing him but who cannot fall back upon a claimed religious tenet. The merchant who sells merchandise, or the lawyer who sells service, would scarcely regard that he was receiving a quid pro quo to which he was entitled if the price or the fee was instead paid over to a charity no matter how worthwhile or deserving that other recipient might be. No more, it seems to me, should Nottelson be entitled to the services without paying for them in the same manner as his fellow employees. In sum, he is a “free rider,” plain and simple.
*457Referring to the substitution of a charitable contribution for the payment of union dues, where the payment is required for the retention of employment status, as fulfilling “societal obligations” strikes me as indulging in noetic perjinkities divorced from realism. Nor do I think that we can adopt the pragmatic analysis that the loss of a particular payment of dues involves only a very small amount of money. While undoubtedly the Seventh-Day Adventist Church is not the largest denomination in this country, it equally undoubtedly includes a substantial number of people among its adherents. Assuming that Nottelson is relying on a basic tenet of his religion, the result in this test case, litigated by his Church, cannot but have a substantial impact in industrial situations similar to that here involved. We cannot philodoxically avoid the fact of entanglement by simplistically ordaining that Section 701(j) does not have a primary effect of advancing the beliefs of one sect over those of another.
I am not unmindful, as the majority opinion points out, that the Executive Council of the AFL-CIO has adopted the charity-substitute as an appropriate accommodation of individual religious needs. I do not regard this as persuasive on the validity of Section 701(j). No one in this day and age wants lightly to chance the charge of being considered as being guilty of any form of discrimination. When this moral pressure, given teeth by the specific legislative requirement of reasonable accommodation, is considered in the context of making the religious objector be out of pocket at least the same amount of money by payment to a worthwhile charitable organization, it is not surprising that the Executive Council would make the best of a situation even though it is contrary to an objective for which Unions generally have long fought.
The majority opinion, in addressing the constitutionality issue, relies heavily on Rankins v. Commission on Professional Competence, 24 Cal.3d 167, 154 Cal.Rptr. 907, 593 P.2d 852 (1979), appeal dismissed, 444 U.S. 986, 100 S.Ct. 515, 62 L.Ed.2d 416, which, it is asserted, is binding on this court. That opinion of the California Supreme Court, a four-to-three decision, was indeed the subject of a dismissal on appeal as not involving a substantial federal question although three of the Justices “would note probable jurisdiction and set case for oral argument.” 444 U.S. 986, 100 S.Ct. 515, 62 L.Ed.2d 416. Nevertheless, this dismissal under Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975), as the majority opinion points out, is a decision on the merits. Rankins, however, represents no more than an application of Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) which has never been expressly overruled, irrespective of what impact upon its viability may have resulted from Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977).
The dismissal in view of Sherbert is not surprising when the facts of Rankins are considered. The plaintiff there simply sought to take off on his holy days and without pay. The California Supreme Court enjoined the dismissal of the plaintiff taking note: “There was no shortage of fully qualified substitute teachers who could be and were called in to replace him at no additional cost to the district.” 593 P.2d at 857. Also the California Supreme Court noted that permitting the absence of the plaintiff on his holy days did not constitute a “preference of one religion over another.” 593 P.2d at 859. On the contrary, the regular school calendar provided holidays on the principal Christian holy days, so that the effect of permitting absences without pay to plaintiff on his holy days “is simply to lessen the discrepancy between the conditions imposed on [the plaintiff’s] religious observances and those enjoyed ... by adherents of majority religions,” id.
As the company points out in its brief here, in this case, by contrast, the dues exemption creates a religious preference; it does not “lessen” one. In any event, the striking difference in the situations involved in Rankins and in the case at bar do not, in my opinion, make the dismissal of the Rankins appeal binding on this court. Those striking differences cannot be lightly *458brushed aside, as the majority would do, by being referred to as a distinction without a difference.
Having stated my opinion that Section 701(j) is unconstitutional, at least as applied in the present situation, I recognize the possibility of a reservation implicit in my discussion of the lack of reasonableness of the accommodation approved by the majority opinion. That reservation is brought to my mind by Catholic Bishop of Chicago v. NLRB, 559 F.2d 1112 (7th Cir. 1977), in which this court held that the Board unconstitutionally exercised jurisdiction over lay teachers in parochial schools. The Supreme Court affirmed the result, NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979), but, in accordance with long established principles of reaching a decision if possible on grounds other than constitutional, held that the Board was exercising jurisdiction beyond the power given it by Congress. The Court recognized that the exercise of jurisdiction “would implicate the guarantees of the Religion Clauses,” but declined “to construe the Act in a manner that could in turn call upon the Court to resolve difficult and sensitive questions arising out of the guarantees of the First Amendment Religion Clauses.” Id. at 507, 99 S.Ct. at 1322.2 Here, while I recognize the possibility that the case could be disposed of similarly, it does appear to me that in imposing upon employers, and sometimes on unions, the necessity of reasonably accommodating the diverse practices of the many different religions extant in this country, entanglement cannot be avoided and the challenged section should be struck down.
. The Amicus brief filed in this appeal by the Equal Employment Advisory Council sets forth in some greater detail than does the Anderson opinion, the historical background and argument supporting the position reached in Anderson, and fortifies my conclusion as to the correctness of the result reached in Anderson.
. It is of interest, and of some possible significance, that an amicus brief urging affirmance of this court’s opinion in Catholic Bishop was filed in the Supreme Court on behalf of the General Conference of Seventh-Day Adventists.