dissenting:
This case presents several troubling aspects. The first is the apparent fact situation itself. It is decades on, now, since the Supreme Court concluded that compulsory religious observances in public school pro*187grams were unconstitutional. Right or wrong, this is and long has been the settled law of the land. To work to change it is one thing: blatantly to ignore it, at this late date, is quite another. Nor can it be denied that the record in this case contains some indications, though not overly reliable ones, of anger and frustration on the part of some local citizens at the bringing of this suit. There is even one expression, contained in a newspaper account of a parents’ meeting with the local school board that lends itself to literal interpretation as a physical threat.1
A second difficulty arises from the sketchy and only marginally relevant record on which we are forced to travel: some newspaper clippings and “Mary Roe’s” anonymous affidavit stating that “some people” in the community feel strongly about the lawsuit, are “angry, very angry,” and are “the same kind of people who were burning down churches and people’s homes and shooting guns not too many years ago.” Though there is other matter in the record — a 1978 comment from “The Christian Century” about religious proselytizing in the schools of Glen Ellyn, Illinois; a 1962 piece from “The Nation” on reaction to a Supreme Court school-prayer decision; and what appears to be a mailgram from James T. McCollum, the subject of the Supreme Court’s 1948 religious instruction case,2 on the harassment that he suffered as a result of it thirty years gone by in Champaign County, Illinois — little of this bears much relevance to this controversy. These bits and pieces of reportage and anonymous affidavits to vague fears of reprisal seem to me a slender basis indeed for permitting anonymous legal proceedings in federal
court. Parties seeking such unusual and drastic relief should, I think, come prepared to make a far stronger showing than this: about all that I can deduce from the record matter offered by plaintiffs is that elsewhere and long ago harassment followed on such a proceeding as this, that this might happen again, that some of the local church people are very upset by this suit, and that they are “the same kind of people” who were acting violently “not too many years ago.” Indeed, this last, a literary figure of deliberate vagueness, might refer to Reconstruction times and perhaps does. Even granting the inherent difficulty of making such proof while preserving one’s anonymity, these are small potatoes and few in the hill.
Finally, I am disturbed by what seems to me dubious reasoning by the majority and a doubtful result. The majority commences its analysis in Part IV of the opinion, the only portion with which I have difficulty, by acknowledging the clear and strong First Amendment interest in public judicial proceedings and the necessarily exceptional nature of that case which may properly be prosecuted anonymously. It then pays its respects to the three factors laid down in Southern Methodist University Association v. Wynne & Jaffe, 599 F.2d 707 (5th Cir. 1979), for consideration in passing on such requests, noting that only one of these is present here. Having announced earlier in Part IV (p. 185) that the trial court was to be reversed, not for abuse of its discretion, but for erroneous application of Wynne & Jaffe principles, the majority seems to me to cast aside those principles3 and substitute its own simple balancing test:
*188We advance no hard and fast formula for ascertaining whether a party may sue anonymously. The decision requires a balancing of considerations calling for maintenance of a party’s privacy against the customary and constitutionally-embedded presumption of openness in judicial proceedings. We emphasize the special status and vulnerability of the child-litigants, the showing of possible threatened harm and serious social ostracization based upon militant religious attitudes, and the fundamental privateness of the religious beliefs, all of which are at the core of this suit to vindicate establishment clause rights. We conclude that the almost universal practice of disclosure must give way in this case to the privacy interests at stake. The Does should have been permitted to proceed under fictitious names.
And, along the way, the majority notes that its decision is especially influenced by two factors that it notes: the presence in the case of children as plaintiffs and the necessity that the majority ascertains for plaintiffs to have “made revelations about their personal beliefs and practices that are shown to have invited an opprobrium analogous to the infamy associated with criminal behavior.” P. 186. I suggest, with deference, that neither of these elements is really —or, at any rate, necessarily — present here.
Taking the last first, no disclosure of personal beliefs and practices on the part of the plaintiffs is made by their complaint or is relevant here, beyond a belief that the Constitution forbids what the defendants are requiring pupils to do. Such a view might be held by a militant atheist, by a religiously indifferent agnostic, by an Evangelical, by a Jew, or by a Roman Catholic: any of these could be fervently devoted to maintaining the civil order, as declared by the Supreme Court.4 Questions to any of these plaintiffs about their personal religious beliefs, or lack of such, are simply irrelevant; and such inquiries at trial to the (presumably masked) plaintiffs on these subjects should be, and I presume would be, disallowed. No man need give a second answer in our courts when his first has been, and rightly been, the Constitution. So much for this concern.
As for the presence here of plaintiffs who are children and the special deference due their vulnerability, here is use of the shield as a sword with a vengeance. These children are not necessary plaintiffs, need not have been joined at all, and are here by the choice of “Mary Roe” and her counsel. Parents have standing to complain of constitutional violations that affect their children and have often done so. Indeed, McCollom, cited above, was such a case, brought by a parent alone, as was Gobitis.5 We should not so readily be taken in by a make-weight tactic. To be sure, of course, and as a practical matter, if parents incur sufficient opprobrium, it well may be that the children may suffer, whether made plaintiffs in the suit or not. Therefore, the argument advancing anonymity for the children comes down, again as practical matter, to that for permitting an anonymous suit by their parent. Their formal presence as plaintiffs adds nothing to it.
Intending no offense, it seems to me that such a startling procedure as an anonymous lawsuit deserves better underpinnings than are offered here. The majority tells our courts below little more than that, in future, we will decide the matter when it gets to us. Nothing objective is offered, “no hard and fast formula.” But it is just such formulas, or at least a sketching of their outlines, that we sit to provide. Criminal proceedings, referred to in passing by the majority, stigmatize ultimately. Do we *189here adumbrate a succession of styles in the mode of “State v. Doe?” One may, moreover, search the annals of school desegregation and civil rights cases in vain before finding “Roe v. Connor” or “Doe v. Wallace.” Those who brought those cases were willing to avouch their causes before the world. Indeed, if the Supreme Court has ever countenanced anonymous litigation in a case where the point was contested, I am unaware of it.
Even so, in closing, I acknowledge the possibility that school-yard bullies and all those other infinite torments to which a school child is subject may be present here, waiting in the wings. Once these Furies are loosed, they cannot be recalled. It may be anachronistic to observe as well that standing up to such menaces has long been celebrated in song and story as both the price and the seedbed of fortitude. My brothers would cut that price; perhaps it should be cut.
I waver on the edge; there is something to be said, I think, for the notion that one who strikes the king should do so unmasked or not at all. I need not decide; in my view, the showing made here is insufficient on any mode of reckoning. Sadly, moreover, a broad and probably fertile new source of Cohen-type appeals is opened today, appeals to be decided by us, as we today announce, by the way they happen to strike us as they are presented from time to time: a “case-by-case basis.” Such courts as ours were, I read, instituted to declare law, so as to lighten that, burden on the Supreme Court and to provide guidance for trial courts and for the bar. To say that we will do as we will do, as in effect we say here, does not advance that enterprise very greatly. I would affirm because the showing below for such extraordinary relief as we here grant was all but entirely lacking. I therefore respectfully dissent.
. “Christians must beat the evil out of these people.” Read in context, however, see 182-183 n.6, the remark smacks more of fulmination than of serious intent to harm.
. Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948).
. [T]he cases affording plaintiffs anonymity all share several characteristics missing here. The plaintiffs in those actions, at the least, divulged personal information of the utmost intimacy; many also had to admit that they either had violated state laws or government regulations or wished to engage in prohibited conduct. Here, by contrast, to prove their case A-D need not reveal facts of a highly personal nature or express a desire to participate in proscribed activities. Furthermore, all of the plaintiffs previously allowed in other cases to proceed anonymously were challenging the constitutional, statutory or regulatory validity of government activity. *188Southern Methodist University Association v. Wynne & Jaffe, 599 F.2d at 713 (footnote omitted, emphasis added).
. Including the Apostle Paul: “You must all obey the governing authorities. Since all government comes from God, the civil authorities were appointed by God, and so anyone who resists authority is rebelling against God’s decision, and such an act is bound to be punished.” Romans 13:1, 2 (The Jerusalem Bible, 1966 ed.).
. Minersville School Dist. v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 84 L.Ed. 1375 (1940).