join, dissenting:
No one can condone an unprovoked and brutal attack on law-abiding citizens who are peacefully minding what is literally their own business. However, the issue before us is not the reprehensibility of the conduct but whether the district court properly issued an injunction in a case over which, we submit, Congress has, by the terms of the Norris-LaGuardia Act, denied federal courts jurisdiction. Our colleagues also interpret the Ku Klux Klan Act of 1871 in an unprecedented fashion to permit damages to be imposed for an assault, a state law tort, merely because it occurred in the course of a dispute about whether union or nonunion workers would do a job. Further our colleagues impose' this liability without the stringent evidentiary findings exacted by the Norris-LaGuardia Act. We, therefore, respectfully dissent.
The factual background is accurately stated in the majority opinion. These facts lead the majority to conclude that the defendant labor organizations purposefully adopted violence as their course, page 1001 supra, that a group of about fifty persons who were either union members or union sympathizers drove to the jobsite in four pickup trucks, and there brutally beat A. A. Cross (“Cross”), the president and controlling stockholder of A. A. Cross Construction Company, Inc. (“Cross Construction”), and several of the construction company’s employees, including Paul Scott and James Matthews. Scott was an engineer and as*1005sistant superintendent; Matthews was a bookkeeper and timekeeper.1
I. THE PRIVATE INJUNCTION AND THE NORRIS-LAGUARDIA ACT
The judgment of the district court affirmed by the majority included a permanent injunction against the defendant labor organizations. The majority, in finding that the district court had authority to issue the injunction, neglects the original purpose, as well as the half century of interpretation and application, of the Norris-La-Guardia (Anti-Injunction) Act, 29 U.S.C. §§ 101-115 (1976), passed in 1932.
The patent purpose of the Norris-La-Guardia Act was to limit stringently the jurisdiction and authority of federal courts to enjoin labor disputes.2 The Act requires three determinations. First, the court must decide whether a labor dispute is involved. Second, to have jurisdiction to issue an injunction under the Act, the court must make all five findings required by 29 U.S.C. § 107: (1) unlawful acts have been threatened and will be committed or have been committed and will be continued; (2) irreparable injury will follow; (3) the balance of injury is more severe on the complainant than the harm the injunction inflicts on the defendant; (4) there is no adequate remedy at law; and (5) the public officers charged with the duty to protect the complainant’s property are unable or unwilling to furnish adequate protection. Third, the injunction, if issued, must not prohibit any of the activities listed in 29 U.S.C. § 104.3
*1006The majority concedes that the requirements of § 107 were not met in this case, page 986 n.3 supra, but sidesteps deciding whether this is jurisdictional. The statute itself, however, is unequivocal: “No court of the United States shall have jurisdiction to issue a temporary or permanent injunction ... except after [the required] findings of fact [have been made] by the court.” 29 U.S.C. § 107 (emphasis added). Indeed, the entire thrust of the Norris-LaGuardia Act is to deny district courts jurisdiction with respect to injunctions in labor disputes.4 Our colleagues justify the injunction, however, by finding that there was no “labor dispute” as defined in the Act. That definition is:
The term “labor dispute” includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee.
29 Id. § 113(c) (emphasis added).
Even according to the majority view, this was a “controversy concerning terms or conditions of employment” and “concerning the association ... of persons in ... maintaining ... employment.” Not only was the controversy thus one literally embraced by the Act, but it was also covered by the Act’s embracive purpose. The definition of a labor dispute is broad and should be broadly read because the Act caters to the need of labor organizations to organize entire industries. Gregory & Katz, Labor and the Law 190 (3d ed. 1979). It abrogates the view, once held by some, that there can be a labor dispute only between persons in an employee-employer or prospective employee-employer relationship. Instead, it includes in its ambit all laboring people and their unions. It is not confined to formal efforts to have employees sign union authorization cards. Its terms precisely characterize as a labor dispute the controversy involved in this case: a group of employees and labor unions protesting the failure of an employer working in their community to hire union workers and to sign collective bargaining agreements with local unions.
While the unions were not engaged in a formal campaign to sign up employees of Cross Construction at the exact time of the critical incident,5 the entire thrust of their activities from the time Cross Construction entered the community was organizational. As the majority opinion indicates, on one occasion the business representative for the carpenters’ local told Cross, “this is union country,” and added that, if Cross persisted in using non-union labor, it was “going to cost [him] a million dollars.” Page 983 supra. Cross Construction employees were confronted by local union members in various public gathering places in the community. Local unions and their members also threatened to picket the construction project because it was non-union. The public demonstration the morning the violence occurred was obviously a form of informational mass picketing to publicize Cross Construction’s employment practices.
*1007The majority finds that, “where a labor organization purposefully adopts violence as its course — violence not associated with or happening to result from any ongoing legitimate union conduct, the union is not participating in a labor dispute within the meaning of 29 U.S.C. § 113(c).” Page 1001 supra. Violence, however, is not a stranger to the labor union movement nor does its presence vitiate the existence of a dispute. If the dispute concerns labor matters, it does not cease to be a labor dispute because it becomes violent. This court early held that the use of violence to achieve a labor objective does not prevent the activity from being considered a labor dispute within the Norris-LaGuardia Act. Carter v. Herrin Motor Freight Lines, Inc., 131 F.2d 557 (5th Cir. 1942). This view is amply supported throughout the history of litigation under the Act.6
The majority concedes that “a labor dispute does exist where unlawful conduct occurs in conjunction with some legitimate union activity .... [or where] the otherwise legitimate union conduct is unlawful under some statutory scheme.” Page 1001 supra. This fails to explain why unlawful conduct falls within the ambit of the Act only if it is connected with legitimate7 union conduct, for the Norris-LaGuardia Act does not confine its definition of labor disputes to those involving legitimate conduct. Indeed, by definition, the Act is applicable only when the union is engaging in unlawful conduct.8 We cannot assume that any court would issue an injunction against lawful activities, and of the five prerequisites to the issuance of an injunction, already listed, one demands a finding that unlawful acts have been threatened and will be committed.
A “labor dispute” can, indeed, be fomented even without traditional labor activity. Thus in New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552, 58 S.Ct. 703, 82 L.Ed. 1012 (1938), a grocery store owner was picketed by a group protesting the shop’s refusal to hire blacks. No member of the group was employed by the shop, and the group was not a labor organization. The Supreme Court, nevertheless, held that the pickets were publicizing a controversy about the shop owner’s “terms and conditions of employment” and that the picketing grew out of a labor dispute.9
*1008National policy, as reflected in labor legislation, was being implemented precisely as Congress intended until the district court granted the injunction at the behest of Cross Construction. The National Labor Relations Board (“NLRB”) had filed unfair labor practice charges against the Sabine Area Building and Construction Trades Council and the various unions that were council members for their actions, including the violence in the episode that is the subject of this lawsuit. The NLRB had issued a cease and desist order that prohibited the Trades Council and the unions from, among other things:
(a) Restraining or coercing employees of Cross Construction Co., Inc. or any other employer, in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act, as amended, including the right to refrain from joining or assisting any constituent local union of Sabine Area Building & Construction Trades Council, AFL-CIO, by: threatening, assaulting, or inflicting bodily harm on said employees, threatening, assaulting, or inflicting bodily harm on supervisory or management personnel of Cross Construction Co., Inc.; and damaging or destroying property and equipment belonging either to Cross Construction Co., Inc., to its supervisory or management personnel, or to its employees.
(b) Organizing, encouraging, sanctioning and engaging in mass picketing by its constituent local unions at the entrance to the roadway leading to the Alligator Bayou Pumping Station and Drainage Structure construction project in order to obstruct or impede ingress or egress to said jobsite.
NLRB Case 23-CB-1624, May 1, 1975.
This order says it all. It was upheld and enforced by us as a result of a settlement stipulation in an unpublished opinion,10 long before the injunction was issued in this case. Ironically, the majority finds no “labor dispute” in the very situation that caused the NLRB to file charges and to issue a stipulated cease and desist order. The NLRB had jurisdiction only if there was a labor dispute. Thus we at once hold an occurrence not to be a labor dispute for purposes of the Norris-LaGuardia Act (which emphasizes the breadth of the definition of labor dispute)11 but to be one for purposes of the National Labor Relations Act (“NLRA”) despite universal recognition that the “definition of ‘labor dispute’ in this Act [NLRA] and in the Norris-LaGuardia Act . .. are virtually identical.”12
The brutal assault on Cross Construction employees was overt criminal conduct that should also have been and was prosecuted by state law enforcement authorities. The Act permits injunctive intervention only when “public officers charged with thé duty to protect complainant’s property [and, we submit, their persons] are unable or unwilling to furnish adequate protection,” 29 U.S.C. § 107(e), against future, not past unlawful activity.13
The Supreme Court has just reaffirmed the broad interpretation of the definition of labor dispute in the Norris-LaGuardia Act which has been the law since the Act was *1009passed. Jacksonville Bulk Terminals, Inc. v. International Longshoremen’s Association, - U.S. -, 102 S.Ct. 2673, 73 L.Ed.2d 327 (1982). As reported in the majority opinion (fn. 14), the Court held that a dispute involving the refusal to load cargo to Russia in protest of Soviet intervention in Afghanistan was a labor dispute within the meaning of the Act.
The majority opinion relies upon the Court’s statement that the employer-employee relationship was the “matrix” of the dispute in Jacksonville Bulk Terminals. First, it needs to be emphasized that, as pointed out above, a unionized workforce was the “matrix” of the dispute in the instant case — clearly a labor dispute objective. Second, the matrix statement must be taken in the context that Jacksonville Bulk Terminals was a dispute between employers and their employees. As has been shown above, the employer-employee relationship is not a requirement to establish a labor dispute under the Act. Indeed, to show the breadth of the definition of labor dispute in the Act, the opinion in Jacksonville Bulk Terminals relies heavily upon the New Negro Alliance case, supra, where there was not even a prospective employer-employee relationship.
What is of most importance in Jacksonville Bulk Terminals is the Court’s extensive emphasis upon the history of the development of the Norris-LaGuardia Act to show the breadth of the definition of labor dispute. The Court said that to narrow the definition would “embroil federal judges in the very scrutiny of ‘legitimate objectives’ that Congress intended to prevent when it passed the Act.” - U.S. at -, 102 S.Ct. at 2684. The Court then concluded; “In the past, we have consistently declined to constrict Norris-LaGuardia’s broad prohibitions except in narrowly defined situations where accommodation of that Act to specific congressional policy is necessary. We refuse to deviate from that path today.” Id. (emphasis added).
No specific congressional policy exists in this case to justify deviation. Instead, congressional policy as clearly established was carried out in the action under the National Labor Relations Act.
The Norris-LaGuardia Act applies to every kind of labor dispute, and not only to conventional organizing campaigns conducted under the auspices of the NLRB. Indeed, as both the NLRB and a panel of this court have found, this was plainly an organizational labor dispute. The federal district court had no jurisdiction to issue the injunction.
II. SECTION 1985(3) DOES NOT GRANT A CAUSE OF ACTION FOR THE DEFENDANTS’ CONDUCT
A. The Nature of the Right for Which § 1985(3) Provides a Remedy
Section 1985(3) provides that an injured party “may have an action for the recovery of damages” “[i]f two or more persons ... conspire ... for the purpose of depriving ... any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws.” 42 U.S.C. § 1985(3) (emphasis added).14 *1010This language does not establish a cause of action for every deprivation of any legal right, privilege, or immunity. The statute condemns only conspiracies to deny equal protection or equal privileges and immunities. If these restrictive terms are overlooked in interpreting the statute, its reach is ubiquitous; for it would then authorize a federal tort action for every conspiracy to deprive any person or class of persons of any legal right.
In Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), the Supreme Court recognized that § 1985(3) is premised on a conspiracy to deny equality and is not a general federal tort law.15 To show that the conspiracy was designed to deny a person equality, the Court said, the plaintiff must demonstrate that the purpose of the conspiracy was “a deprivation of the equal enjoyment of rights secured by the law to all,” not merely the infliction of an injury on that person. Id. at 102, 91 S.Ct. at 1798, 29 L.Ed.2d at 348 (emphasis added). The necessary corollary is that a conspiracy merely to injure one person or a group of persons, or even some or all of the members of a class of persons, does not give rise to an action under the statute.
This interpretation of the statute is supported by the history of its enactment. That history, often recounted in fragments, is reported at length in Comment, A Construction of Section 1985(e) in Light of Its Original Purpose, 46 U.Chi.L.Rev. 402 (1979).16 Section 1985(3) was adopted in reaction to the activities of the Ku Klux Klan. The original Klan, which had begun to operate in the South prior to 1871, was for the most part a political organization.17 In enacting § 1985(3), Congress did not seek primarily to prevent racial discrimination but to proscribe conspiracies whose objective or effect was to frustrate the “constitutional operations of government through assaults on the person, property, and liberties of individuals.”18
The Forty-Second Congress, dominated by a Republican majority, became alarmed at reports of violent activities of the Klan and similar organizations, such as the Knights of the White Camelia, the White Brotherhood, the Pale Faces, and the ’76 Association.19 It established a joint committee to investigate the Klan.20 The Republican majority thought the Klan’s objective was to wrest control of the southern state governments from the Republican Party and to reestablish Democratic gover*1011nance.21 Democrats also viewed the Elan’s objectives as political22 but considered them honorable, adopted to resist unjust laws and to restore control of governmental affairs to “the wise, virtuous, influential men of the South,” dislodging “adventurers and ne-groes.” 23
The first proposed Eu Elux Elan Act made it criminal to conspire to commit particular crimes “in violation of the rights, privileges, or immunities of any person, to which he is entitled under the Constitution and laws of the United States.”24 It authorized no civil action. Some more moderate Republicans opposed the proposal as a usurpation of the states’ power to punish crimes. Other members of Congress opposed the enactment on the basis that the federal government lacked power to prohibit the acts of private individuals. Another group believed that Congress could punish only those “private conspiracies intended to obstruct the performance of government officials’ constitutional duty to provide equal protection of the laws.”25 Still others believed that, regardless of its power, the federal government should provide protection for individuals against private conspiracies only when the state failed to do so.26
An amendment suggested by Congressman Burton Cook (R — Ill.) and drafted by Congressman Charles Willard (R-Vt.)27 satisfied the constitutional objections and provided an acceptable compromise. For the language first proposed in the criminal statute prohibiting conspiracies “in violation of the rights, privileges, or immunities of any person, to which he is entitled under the Constitution and the laws of the United States,” the amendment substituted the words “for the purpose of depriving any persons or class of persons, directly or indirectly, of the equal protection of the laws, or of equal privileges and immunities under the laws.”28 The amendment also added the civil cause of action that we now consider.29
It is thus obvious that one purpose of this amendment was to confine the operation of the statute to discriminatory deprivations of rights. As the draftsman of the limiting amendment, Representative Willard, said, the amendment “provid[ed] that the essence of the crime should consist in the intent to deprive a person of the equal protection of the laws and of equal privileges and immunities under the laws; in other words, that the Constitution secured, and was only intended to secure, equality of rights and immunities, and that we could only punish by United States laws a denial of that *1012equality.”30 Congressman Horatio Burch-ard (R — 111.) explained that the conspiracies condemned were “those designed to prevent the equal and impartial administration of justice... . The gravamen of the offense is the unlawful attempt to prevent a State through its officers enforcing in behalf of a citizen of the United States his constitutional right to equality of protection.”31 Others echoed this analysis.32
In Griffin, the Supreme Court interpreted § 1985(3) in a fashion consistent both with its literal language and this congressional intention:
The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all.
403 U.S. at, 102, 91 S.Ct. at 1798, 29 L.Ed.2d at 348 (footnotes omitted). The statute thus has a “motivation aspect.” Relying on the legislative history we have recounted, the Griffin Court explained that the requirement of “invidiously discriminatory motivation stressed by the sponsors of the limiting amendment” was necessary to avoid “constitutional shoals.” Id. The forbidden purpose of § 1985(3) is the denial of equality under the laws, not merely an injury forbidden by law.33
Although § 1985(3) reaches both public and private conspiracies to deny constitutional equality, it is a non sequitur to conclude that it, therefore, reaches all constitutional violations. The statute is not designed to protect constitutional rights; it is at once narrower, safeguarding equality, and broader, protecting against any conspiracy- to deny equal protection of the “laws.” 34
*1013The Supreme Court held in Griffin that the reach of § 1985(3) is limited by the requirement that the conspiracy be directed at a denial of equality. Our colleagues state, however, that in Griffin “[t]he blacks brought an action under section 1985(3) to redress violations of the laws of the United States and of Mississippi, including the rights of free speech, assembly, association, interstate travel, liberty, and security of their persons.” Pages 986-987 supra (emphasis added). If that were the basis of the action in Griffin, then Griffin would be authority for a simple tort action. The complaint in Griffin was more subtle.35 In addition to the language quoted by the majority, the complaint stated that the purpose of the conspiracy “‘was to prevent [the] plaintiffs and other Negro-Americans, through .. . force, violence and intimidation, from seeking the equal protection of the laws and from enjoying the equal rights, privileges and immunities of citizens under the laws of the United States and the State of Mississippi, including . . . their rights to freedom of speech, movement, association and assembly.’ ” 403 U.S. at 90, 91 S.Ct. at 1792, 29 L.Ed.2d at 341. The assault on and battery of the plaintiffs were acts done in furtherance of the conspiracy to deny the plaintiffs equal rights, not acts designed merely to injure the plaintiffs or to deprive them of the protection of the law.
In Great Am. Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 372, 99 S.Ct. 2345, 2349, 60 L.Ed.2d 957, 963 (1979), the Supreme Court held that “[sjection 1985(3) provides no substantive rights itself; it merely provides a remedy for violation of the rights it designates.”36 Thus, § 1985(3) provides a cause of action for private interference only with those rights that the Federal Constitution protected prior to the enactment of the Civil Rights Act of 1871, and in particular, for those rights protected by the newly ratified fourteenth amendment. See Novotny, 442 U.S. at 383, 99 S.Ct. at 2354, 60 L.Ed.2d at 970 (Stevens, J., concurring). Insofar as equal protection of the laws is concerned, the cause of action is restricted not only to conspiracies to deny equality, but the conspiracy must also be directed at the denial of protection of the laws, in the sense that it must be aimed at *1014preventing the injured party from obtaining legal protection. See id. at 384, 99 S.Ct. at 2355, 60 L.Ed.2d at 971; A Construction of Section 1985(c), supra note 17, at 407, 419.
The extension of § 1985(3) to protect against private infringement of every right protected against governmental action by the Constitution would create a Bivens-type tort action against every private conspiracy that affects a federal constitutional right.37 A citizen’ has a right to be secure in his property and home, but we do not think that § 1985(3) confers a cause of action for a conspiracy by a person’s neighbors to block his driveway in order to keep him from driving his automobile to his place of business. The fourth amendment protects against illegal searches, but we do not think that, if two persons conspire to search their neighbor’s house, the neighbor has a § 1985(3) action.38 In neither case would the addition of violent overt acts metamorphose the tort into a § 1985(3) cause of action.
Unlike Griffin, this case does not rest on the adequacy of notice pleading. The plaintiffs have had their day in court. They proved no conspiracy to prevent them from seeking the equal protection of the laws, or to deny them that protection, or to bar them from enjoying the equal rights, privileges, and immunities of citizens under the laws. Even if there is a “First Amendment right to associate with their fellow nonunion employees,” page 988 supra, a question to which we will soon turn, it would not suffice to prove a conspiracy aimed at denying the plaintiffs this “right.” Our colleagues, mistakenly we suggest, assume that “curtailment of [plaintiffs’] interests secured by the First Amendment is a deprivation of equal protection of the laws within the meaning of section 1985(3) as interpreted by Griffin.” Page 988 supra (emphasis added). The mere deprivation of a right, however fundamental, is not a deprivation of equal protection. For a denial of equality to be the conspiratorial objective, the conspirators must seek to permit some persons to enjoy the protected right and to deny it to others. The reprobated objectives alleged in Griffin included, for example, the denial of the right of black persons to “ ‘travel the public highways without restraint in the same terms as white citizens in Kemper County, Mississippi.’ ” 403 U.S. at 92, 106, 91 S.Ct. at 1793, 1800, 29 *1015L.Ed.2d at 342, 350 (quoting the complaint). The proof in this case shows no comparable objective; the defendants did not seek to deny the right to work with nonunion workers to the individual plaintiffs while according that right to others.
B. The Right Pound Protected by the Majority
Our colleagues interpret § 1985(3) to find that it protects a constitutional right of association, or more specifically, the constitutional right, first found to exist in this very opinion, of nonunion workers to work with other nonunion workers. This right is analogized to the right of political association. Protection for political association is thus expanded into protection for any kind of association having some economic community of interest. This seems to us to confuse the right protected with the class of persons protected. Although there is a constitutional right to refuse to work, no court, so far as we know, has ever previously found that workers have a constitutional right to work only with the kind of persons they choose to work with.
If nonunion workers have a constitutional right to work together, then the collective bargaining policy of the National Labor Relations Act is at least in part unconstitutional. Under it, nonunion workers have the right to join or not to join a union. 29 U.S.C. § 157. They have the right to vote against or for a union in a collective bargaining election. Id. If, however, a collective bargaining agent is chosen, the workers do not have a constitutional right to bargain individually or to work only with nonunion associates. They may be required to become union members thirty days after being hired, id. § 158(a)(3), unless the state has a “right to work” law.39 Once an employer is ordered to bargain collectively, employees who are not union members are compelled to work with union members if they choose to work at all. Their employer certainly has no right to employ only nonunion labor — unless the National Labor Relations Act is unconstitutional.
This case does not involve the question whether a person has a right to join or not to join a union, to affiliate or not to affiliate with a political group, or to believe or disbelieve a creed. The desire to work for a nonunion employer cannot be escalated into a first amendment associational right. “What the [Supreme] Court has recognized as implicit in the first amendment ... is a right to join with others to pursue goals independently protected by the first amendment — such as political advocacy, litigation (regarded as a form of advocacy), or religious worship.”40 Although there is obviously some political content in union activity, nonmembership in a union is not a goal independently protected by the first amendment.
C. Discriminatory, Class-Based Animus
The majority does not hold Cross Construction to be a member of any class. We search the majority opinion in vain for something more than an ad hoc definition of the class to which the plaintiffs Scott and Matthews belong. After discussing the necessity of discriminatory class-based animus for two and one half pages, our colleagues state conclusorily, “the plaintiffs constitute a class for 1985(3) purposes.”41 They then discuss the labor union movement and the reputed kinship of economic views with political association, and state that “the plaintiffs were attacked because of their economic, rather than their politi*1016cal, association.” 42 In the next sentence we are told that there was animus against the plaintiffs for their “nonunion association.” The plaintiffs are later referred to as “nonunion employees” and, without noting the distinction, as “nonunion workers who are attacked for their choice to associate with other nonunion workers.” Page 994 supra. It is difficult for us to divine exactly what class is intended by these differing phrases, for the evidence makes it clear that Scott and Matthews were not attacked because they were not union members or because they wished to work with “other” nonunion members, but because they chose to work for Cross Construction, a firm that hired nonunion workers and did not pay union wages.43 Scott was a supervisor and Matthews was a clerical worker. It has not been shown that either of them was even eligible for membership in any of the unions involved.
Let us assume, however, that the facts can be construed to make Scott and Matthews members of a class of persons who do not belong to a union and want to work with people who are also nonunion. This, we submit, is not a class protected by § 1985(3). The Supreme Court in Griffin said, “there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action” to warrant § 1985(3) relief.44 We have gone further and held that § 1985(3) forbids not only racial discrimination but the denial of equality to other classes:45 those having common characteristics of an inherent nature; that is, classes accorded special protection by the equal protection clause of the fourteenth amendment and “the kinds of classes Congress was trying to protect when it enacted the Ku Klux Klan Act.” Kimble v. D. J. McDuffy, Inc., 648 F.2d 340, 347 & n.9 (5th Cir.) (en banc), cert. denied, - U.S. -, 102 S.Ct. 687, 70 L.Ed.2d 651 (1981).46 The phrase “the kind of classes Congress was trying to protect” states a purely historical test, directing us to look to the purposes of the Ku Klux Klan Act when it was adopted. Kimble suggested as an illustration of classes in this category conspiracies based on the target’s affiliation with a major political party. Id.
The majority opinion holds that, although the “[pjlaintiffs are not a class normally afforded special protection under the equal protection clause merely because they wish to work nonunion,” page 991 supra, and although “Congress did not express a specific intent to protect nonunion employees in enacting the Ku Klux Klan Act, the legislative history demonstrates that the nonunion employees in this case comprised the kind of class Congress intended to protect,” page 994 supra. We differ with this conclusion also.
The plaintiffs are, we submit, not members of a class at all,47 but simply two *1017individuals injured in the same assault. The majority agrees that not every conceivable grouping of persons capable of being defined as a class is protected by § 1985(3). Page 992 supra.- Not only must the class share some common characteristic beyond simply being the victims of a conspiracy, but it must also be distinguishable from the general populace by this characteristic. Id. These are but first steps, and do not enable us to define the § 1985(3) class, for many clearly defined and easily identifiable groups of persons who might be considered a “class” for some other purpose have been denied § 1985(3) class status: homosexuals,48 tenant organizers,49 debtors,50 persons who file voluntary petitions in bankruptcy,51 physicians who testify in malpractice suits,52 injured workers who assert claims,53 and trade association members.54
The majority looks to our en banc decision in McLellan v. Mississippi Power & Light Co., 545 F.2d 919 (5th Cir. 1977), for the gauge to measure whether the Scott-Matthews class is the kind of class Congress intended to protect when it enacted § 1985(3). They correctly recount the three reasons given in McLellan for holding that § 1985(3) does not cover persons who file voluntary petitions in bankruptcy.55
First, the legislative history of the Ku Klux Klan Act contains no evidence of congressional concern about discrimination against persons who become insolvent. Second, while the protection afforded by the civil rights acts is not static, it would be inappropriate to enlarge the group of protected classes to include bankrupts when Congress had specifically declined to prohibit discrimination against them. Third, including bankrupts within the ambit of Section 1985(3) would be unwarranted in light of the Supreme Court’s refusal to characterize the right to file a bankruptcy petition as a fundamental right.
Page 992 supra.
But, as our colleagues acknowledge, McLellan does not attempt to define what groups are and what groups are not § 1985(3) classes. Id. McLellan sets up only some of the criteria for exclusion. To determine that the present group is included as a % 1985(3) class because it is not one of those excluded by McLellan is to adopt the erroneous premise that all classes are comprehended except those barred for the same reason bankruptcy petitioners were eliminated by McLellan.
Furthermore, we believe that the majority’s analysis of the McLellan factors is incorrect. The legislative history and, indeed, the popular name of the statute make clear the evil that was addressed, the Ku Klux Klan. Congress in 1871 was assuredly not trying to protect non-union workers, not only because it would not then have recognized the difference between union members and non-members but simply because the Klan posed no threat to such workers. The regional hostility the majority finds as a second identification for an appropriate class could scarcely embrace Cross Construction, a Texas corporation, Paul Scott, a *1018resident of Texas, or James Matthews, also a resident of Texas at the time of the incident. Nor does subsequently enacted federal labor legislation suggest that Scott and Matthews are members of a class protected by § 1985(3). That legislation expresses the national labor policy as encouraging collective bargaining. 29 U.S.C. § 102. Although Congress has recognized the “right to refrain from any or all such activities,” id. § 157, it has never adopted a national labor policy protecting an individual’s “right” to work for a nonunion employer. The right to belong or not to belong to a union is considerably different from the asserted “right” to work for a nonunion employer, for, as we have already seen, every employer whose activities affect interstate commerce and his employees are subject to the requirements of collective bargaining. Id. § 158(d). Finally, the kinship asserted by the majority to exist between economic and political association is a strange one, for in this country our political parties embrace the entire spectrum of economic classes.
If the class recognized by the majority includes, as we have supposed, persons who do not belong to a union and who want to work for an employer who hires other nonunion employees, there are yet other reasons not to accord such a class § 1985(3) protection. This class is one newly defined by this case, not one having any previous discernible jurisprudential identity. It is not a “class” marked by historical oppression, by minority status, by any social or political animus directed against it, by any political or religious belief, or by any of the indicia usually used to identify a class of persons who must be accorded special protection. The animus here was not directed at the membership of the plaintiffs in such a class or at their association together either as persons or in some anti-union group campaign, but at their activities: working without union membership for an employer who wished to hire them.
D. The Corporation as a Beneficiary of § 1985(3)
The majority rejects the view that Cross Construction is a member of the protected class.56 They manage to find a § 1985(3) cause of action in favor of Cross Construction, however, by holding that the statute extends a remedy to any person injured by a forbidden conspiracy despite the fact that he is not within the protected class.57 This view extends § 1985(3) protection to injured persons outside the protected class even if no member of that class has filed suit. By this reasoning, if, in the present case, a person had been injured by the negligence of the driver of one of the pickup trucks speeding from the scene of the attack, he would also be entitled to sue under the statute’s aegis.
The Ninth Circuit has considered this reading of the statute and rejected it.58 The only authority cited for the creation of this penumbra is the dissenting opinion of Justice White in Novotny.59
*1019The majority opinion in Novotny held, however, that § 1985(3) created no new rights but is remedial in nature, and rejected Justice White’s view. The majority here finds a substantive cause of action in the statute for non-class members. This is not only, we submit, a misreading of the statute, but also a rejection of the authority by which we are bound.
E. The Constitutional Question: The Source of Congressional Power
The Supreme Court recognized in Griffin that § 1985(3), if applied literally to every situation apparently embraced by it, might in some applications exceed Congress’s authority.60 Therefore, as the majority opinion recognizes, “a source of congressional power must be identified to warrant application of the statute in each case.” 61 Our colleagues accurately describe the controversy concerning “the extent to which section 5 of the Fourteenth Amendment grants Congress the power to reach wholly
private conduct.”62 Pretermitting that issue, they find authority for the present application of § 1985(3) in the commerce power.63
Although the power of Congress under the commerce clause is broad enough to permit it to reach any private conspiracy designed to affect interstate commerce,64 Congress assuredly did not rely on the commerce clause in enacting § 1985(3). The statute does not invoke the commerce clause, nor does it distinguish between conspiracies that affect interstate commerce and those whose aim is solely intrastate.
The debates of the 1871 Congress focused on the constitutional power of Congress under the thirteenth, fourteenth, and fifteenth amendments. Griffin found congressional power also in the constitutional protection afforded interstate travel.65 The Forty-Second Congress, accustomed to a narrow construction of the commerce clause66 and seeking to reach conspiracies *1020that denied equality whether or not interstate commerce was implicated, never considered the commerce clause as its authority.
When the Congress has relied upon the commerce clause, it has either defined the necessary commerce impact in the statute or given authority to an administrative agency to define the triggering amount of interstate commerce. Thus, in some instances, Congress has sought to reach every transaction “affecting” interstate commerce.67 In other instances, Congress has exerted power only when there is a prescribed volume of interstate transactions.68 There are no such indications of congressional intent here and no statutory guides for the quantum of interstate activity necessary to activate the statute.
The majority appears to assume that Congress intended to authorize a remedy for any conspiracy that might affect interstate commerce. The limits of that interstate impact must be spelled out by future decision. They also find authority to protect interstate workers, but that could scarcely justify application of the statute to Scott and Matthews, both of whom are Texans.
F. Reconfining the Genie
Recognizing implicitly that they have released a brand new federal tort, our colleagues attempt in dicta to enclose this genie in a larger bottle. They say that they would not extend § 1985(3) to every kind of unlawful conduct, only to the limited instance where “there is no campaign to organize employees and force or violence is used to stake out one group’s territorial claim and to deprive other workers and their employer of the right to freely associate with one another.”69 We see no basis in the statute for distinguishing violent unlawful conduct from other kinds of unlawful activity such as unfair labor practices, secondary boycotts, and criminal libel, or, indeed, criminally reckless driving. The rationale of the decision cannot be thus confined save by ipse dixit. If the decision is based on principle, and not like Justice Robert’s railway ticket, “good for this day and train only,”70 it extends logically not only to a multitude of “classes” having some sort of economic or “associational” tie but protects each member of those classes against any kind of unlawful conduct that results in bodily injury, or even, perhaps, economic harm.
III. THE EVIDENTIARY QUESTION: STANDARD OF PROOF AND SUFFICIENCY OF EVIDENCE
The majority holds that the existence of a conspiracy on the part of some of the unions to interfere with the constitutional rights of the plaintiffs in this case can properly be established by a preponderance of the evidence. They conclude that, because no labor dispute existed, the clear proof standard required by § 6 of the Norris-LaGuardia Act should not be applied.71 *1021Part I of this opinion demonstrates that this case does involve a labor dispute within the meaning of the Norris-LaGuardia Act, thus compelling the application of the more rigorous standard of proof required by the Act.
Section 6 of the Act was added to overturn decisions holding unions liable in damages for the unlawful acts of their members, and members liable for the unlawful acts of other members.72 The Act does not immunize unions from liability but it does protect them “against liability for unauthorized illegal acts” committed during a labor dispute except upon clear proof of authorization.73 In United Mine Workers v. Gibbs, 388 U.S. 715, 737, 86 S.Ct. 1130, 1133, 16 L.Ed.2d 218, 234 (1966), the Supreme Court held that the clear proof standard applies even when federal courts are adjudicating claims against unions based on state law.74
Under Gibbs, an allegation that a union has adopted a strategy of violence and intimidation to achieve labor goals is not sufficient to preclude application of the Norris-LaGuardia Act and its exacting standard of proof. As the Court there said, one of the central purposes of the Act is to insulate unions from liability for unauthorized violent sprees of the union membership. “The driving force behind § 6 ... was the fear that unions might be destroyed if they could be held liable for damage done by acts beyond their practical control.” Id. at 736-37, 86 S.Ct. at 1144, 16 L.Ed.2d at 233-34.
The Court today strips unions of the protection that Congress sought to give them when a violent act occurs in a conflict engendered because of an employer’s labor policies. There was enough evidence to sustain, as not clearly erroneous, a finding by the fact trier under the preponderance of evidence standard that the unions were responsible for the assault. The unions were entitled, however, to have the clear proof standard applied.
This conclusion is not inconsistent with finding the unions guilty of unfair labor practices under the NLRA. To implement later-developed national labor policy, Congress adopted a different standard for cases arising under the NLRA — preponderance of the evidence, § 10(c), 29 U.S.C. § 160(c). This standard is also required in the limited situations in which private damage suits may be brought for violations of the NLRA, see § 301(e), 29 U.S.C. § 185(e). In all other instances, including those present here, the standard of the Norris-LaGuardia Act stands unmodified. The district court applied the wrong burden of proof and it follows inexorably that its decision must be reversed. We would go further and hold that the evidence was insufficient to warrant a finding of liability under the correct standard.
IV. CONCLUSION
This is not the kind of hard case that ought to lead us into making new law. Section 1985(3) was adopted to provide a federal forum for those who could find no redress in state courts. Today, the majority extend the statute to embrace conduct condemned by state law. State tort law offered adequate redress for the damages. Injunctive relief at private instigation was available in state court. State criminal law has prosecuted the offenders. Federal in-junctive relief was obtained by federal administrative intervention. Neither indignation at criminal conduct nor sympathy for *1022its victims should lead us to disregard the Norris-LaGuardia Act or misconstrue § 1985(3). Therefore, we respectfully dissent.
. James Matthews did not testify at trial, nor was he deposed by any party. The district court, however, awarded him $5,000 in damages from the defendant labor unions. A. A. Cross stated in a post-trial deposition that, after the January 17 incident, he decided to maintain Cross Construction’s records in Houston and accordingly paid Matthews’s Houston hotel bill while Matthews worked there on the company’s recordkeeping. Cross further testified that Matthews had been threatened several times after the January 17 incident, was subsequently fired from Cross Construction for cause, and that he did not know Matthews’s current whereabouts. Paul Scott stated in his deposition that, to the best of his knowledge, Matthews was in New York.
. When the Labor Management Relations (Taft-Hartley) Act of 1947 was passed, there was concern that the power given to the National Labor Relations Board to obtain injunctions in labor disputes and to .issue cease and desist orders was a limitation upon the Norris-LaGuardia Act.. The Taft-Hartley Act did indeed curtail the Norris-LaGuardia Act, but it was carefully written to ensure that no increased power to obtain labor injunctions was placed in the hands of private litigants. The labor injunctions and cease and desist orders authorized by the Taft-Hartley Act against unions and their members must be initiated and controlled by the government. Senator Smith, who was handling the debate on the Taft-Hart-ley Act on the floor of the Senate on behalf of its proponents, was asked if the Taft-Hartley Act would not “slice a wedge” from the Norris-LaGuardia Act on injunctions. His reply was “we were very careful in this bill to protect the injunctive process as it is protected in the Norris-LaGuardia Act, except in the exceptional cases where the Government has to step in.” Cong.Rec. 4,411 (April 30, 1947) (emphasis added).
The Supreme Court later commented:
The short answer to the argument that the Labor Management Relations Act of 1947 . . . has removed the limitations of the Norris-LaGuardia Act upon the power to issue injunctions against what are known as secondary boycotts, is that the law has been changed only where an injunction is sought by the National Labor Relations Board, not where proceedings are instituted by a private party.
Bakery Sales Drivers Local 33 v. Wagshal, 333 U.S. 437, 442, 68 S.Ct. 630, 632, 92 L.Ed. 792, 796 (1948).
. No court has jurisdiction to issue an injunction growing out of a labor dispute to prohibit any persons from doing any of the following:
(a) Ceasing or refusing to perform any work or to remain in any relation of employment;
(b) Becoming or remaining a member of any labor organization or of any employer organization, regardless of any such undertaking or promise as is described in [section 3 of this Act];
(c) Paying or giving to, or withholding from, any person participating or interested in such labor dispute, any strike or unemployment benefits or insurance, or other moneys or things of value;
(d) By all lawful means aiding any person participating or interested in any labor dispute who is being proceeded against in, or is prosecuting, any action or suit in any court of the United States or of any State;
(e) Giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by *1006any other method not involving fraud or violence;
(f) Assembling peaceably to act or to organize to act in promotion of their interests in a labor dispute;
(g) Advising or notifying any person of an intention to do any of the acts heretofore specified;
(h) Agreeing with,other persons to do or not to do any of the acts heretofore specified; and
(i) Advising, urging, or otherwise causing or inducing without fraud or violence the acts heretofore specified, regardless of any such undertaking or promise as is described in [section 3 of this Act].
29 U.S.C. § 104.
. Lauf v. E. G. Shinner & Co., 303 U.S. 323, 329-30, 58 S.Ct. 578, 581-82, 82 L.Ed. 872, 877 (1938) (“The District Court made none of the required [§ 107] findings save as to irreparable injury and lack of remedy at law. It follows that in issuing the injunction it exceeded its jurisdiction.”).
. As the majority reports: “Cross did not have a collective bargaining agreement with any labor union.” Pages 982-983 supra.
. E.g., United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) (Court found there was a labor dispute even though members of the United Mine Workers forcibly prevented the opening of a mine staffed by members of a rival union organization, threatened the employer, and beat an organizer for the rival union; mine was finally reopened when UMW miners were hired.); Milk Wagon Drivers’ Local 753 v. Lake Valley Farm Prods., Inc., 311 U.S. 91, 96, 61 S.Ct. 122, 124, 85 L.Ed. 63, 66 (1940) (union organizing drive was acrimonious and frequently violent: “store windows were broken, personal altercations occurred, charges and countercharges were frequent, arrests were made and court proceedings instituted”; nevertheless the Court found that a labor dispute existed); Lake Charles Stevedores, Inc. v. Mayo, 20 F.Supp. 698 (W.D. La.1935) (union, striking to gain recognition, engaged in a pitched battle, including gunfire, with private armed guards brought in by port authorities; district court granted an injunction, but only after specific findings that the requirements of § 107 were satisfied.); see also Gregory & Katz, Labor and the Law 190 (3d ed. 1979) (“Congress did not give organized labor a complete carte blanche.” Labor activities after the passage of the Norris-LaGuardia Act were “still subject to other legal procedures such as criminal proceedings and actions for damages, where appropriate.”).
. Whether the defendants’ activities were otherwise “legitimate” depends only on whether the local unions were in compliance with the technical requirements for organizational activity under the National Labor Relations Act. Concededly, they were not. But it is not essential to the existence of a labor dispute that the contest be connected with “legitimate” labor activity or that it be peaceful.
. See California Ass’n of Employers v. Building & Constr. Trades Council, 178 F.2d 175 (9th Cir. 1949) (holding that the controversy involved a labor dispute although the union was insisting on a closed shop and closed shops had previously been outlawed by the Taft-Hartley Act).
. See also Marine Cooks & Stewards v. Panama S.S. Co., 362 U.S. 365, 80 S.Ct. 779, 4 L.Ed.2d 797 (1960). A union picketed a foreign ship that employed foreign seamen and paid them less than the going American wage rates. The foreign employees had no dispute with the *1008vessel owners, and the unions had no desire‘to organize or to represent the foreign employees. The Supreme Court held, however, that the Norris-LaGuardia Act applied, finding that the picketing related to the terms and conditions of employment.
. NLRB v. Sabine Area Bldg. & Constr. Trades Council, No. 75-2481 (5th Cir. June 24, 1975).
. The Supreme Court has noted that “Congress made the definition [of “labor dispute” in the Norris-LaGuardia Act] broad because it wanted it to be broad. There are few pieces of legislation where the congressional hearings, committee reports, and the language in the legislation itself more clearly point to the necessity for giving an Act a construction that will protect the congressional policy the Act adopted.” Order of R. R. Telegraphers v. Chicago & N. W. Ry., 362 U.S. 330, 335, 80 S.Ct. 761, 764, 4 L.Ed.2d 774, 779 (1960).
. National Maritime Union of Am. v. NLRB, 342 F.2d 538, 541 (2d Cir.), cert. denied, 382 U.S. 835, 86 S.Ct. 78, 15 L.Ed.2d 78 (1965).
. As stated above, the court must find prior to issuing an injunction, that “unlawful acts have been threatened and will be committed ... or have been committed and will be continued.” 29 U.S.C. § 107(a) (emphasis added).
. 42 U.S.C. § 1985(3) provides in full:
If two of more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged-therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or *1010deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
. “That the statute was meant to reach private action does not, however, mean that it was intended to apply to all tortious, conspiratorial interferences with the rights of others.” Griffin, 403 U.S. at 101, 91 S.Ct. at 1798, 29 L.Ed.2d at- 347. See also Cong. Globe, 42d Cong., 1st Sess. 485 (1871) (remarks of Rep. Cook addressing Rep. Shellabarger’s amendment to the original proposed Act):
I think it is within the power of Congress to protect and enforce every right secured to American citizens by the Constitution of the United States. I do not believe, and I do not know of any man who does believe, ... that Congress has a right to punish an assault and battery when committed by two or more persons within a State. I know of no one who believes that Congress has any right to enforce the laws of a State except in the emergency contemplated in the Constitution, when the State may be unable to do so by reason of lawless combination too strong for the State authorities to suppress. The statement that this bill aims at any such end is an utter misstatement of its object and effect.
. See generally 1 Statutory History of the United States 591-656 (B. Schwartz ed. 1970); Avins, The Ku Klux Klan Act of 1871: Some Reflected Light on State Action and the Fourteenth Amendment, 11 St. Louis U.L.J. 331 (1967).
Section 1985(c) was renumbered § 1985(3). 42 U.S.C. § 1985(3) (Supp. III 1979).
. See Comment, A Construction of Section 1985(c) in Light of Its Original Purpose, 46 U.Chi.L.Rev. 402, 408 n.32 (1979) [hereinafter cited as A Construction of Section 1985(c)].
. Id. at 403.
. A Construction of Section 1985(c), supra note 17, at 407 n.29, (citing K. Stampp, The Era of Reconstruction 199 (1965)).
. Cong.GIobe, 42d Cong., 1st Sess. 116-17 (1871); id. at 180-82.
. Id. at 653, col. 3 (The Klan’s “well-defined and clearly-proven object is to gain political control by intimidation and murder.”) (remarks of Sen. Osborn (R-Fla.)); id. at 484, col. 1 (The “purpose of all this bloody work ... is for the express purpose of controlling government in the states where these things are done, by preventing citizens from exercising their legitimate constitutional privileges.”) (remarks of Rep. Wilson (R-Ind.)).
. See id. at 517, col. 2 (“the minority of the committee reach the same conclusion as the majority reach as to the fact that the disorders have a political origin and purpose, the difference being, in substance, that the majority find it to originate in an aim at the overthrow of the reconstruction laws and the people and State governments they were designed to protect, while the minority seem to conclude that the violence is natural and just in resistance of wicked laws”) (remarks of Rep. Shellabarger (R-Ohio)).
. Id. at 386, col. 2 (remarks of Rep. Lewis (D-Ky.)). See also additional references in A Construction of § 1985(c), supra note 17, at 408-09 & n.32.
. Cong.Globe, 42d Cong., 1st Sess. 68 app. (1871).
. A Construction of Section 1985(c), supra note 17, at 415, and authorities cited therein. See generally id. at 411-17.
. Id. at 415-16, and authorities cited therein.
. Id. at 417. .
. Cong.Globe, 42d Cong., 1st Sess. 477; col. 3 (1871) (emphasis added).
. Id. As one commentator has noted: “This addition of remedy was not a subject of congressional discussion or debate. It was presumably inspired at least in part by concern for the victims of acts of terror or indirect subversion committed to inhibit the exercise of the rights of citizens.” A Construction of Section 1985(c), supra note 17, at 417.
. Cong.Globe, 42d Cong., 1st Sess. 188 app., col. 2 (1871).
. Id. at 315 app., col. 2.
. Id. at 478, col. 2 (“The object of the amendment is ... to confine the authority of this law to the prevention of deprivations which shall attack the equality of rights of American citizens; that any violation of the right, the animus and effect of which is to strike down the citizen, to the end that he may not enjoy equality of rights as contrasted with his and other citizens’ rights, shall be within the scope of remedies of this section.”) (remarks of Rep. Shellabarger); id. at 486, col. 3 (remarks of Rep. Cook (R — 111.)); id. at 514, col. 3 (remarks of Rep. Poland (R-Vt.)).
. See A Construction of Section 1985(c), supra note 17, at 437 (“The enacting Congress did not intend the statute to be an antidiscrim-ination law. The language of equal protection and equal privileges and immunities was added as a limitation, not as an expansion.”).
This is the interpretation of § 1985(3) that we adopted in McClellan v. Mississippi Power & Light Co., 545 F.2d 919 (5th Cir. 1977) (en banc). Turning first to what private action constitutes a deprivation of the protection of the laws, we held that “the inquiry must initially concentrate on the legality of the defendants’ activity apart from section 1985(3). If the object of the defendants’ conspiracy did not include a violation of some law (independent of section 1985(3) itself) which protects the plaintiff, the conspiracy could not have deprived the plaintiff of the ‘protection of the laws.’ ” Id. at 925. We then turned to the requirement that the deprivation be of the equal protection of the laws, and held that violation of equality is a separate component of the action although we declined to decide whether the section extends to other bias than racial. Id. at 929.
Section 1985(3) also prohibits conspiracies “for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws.” Although § 1985(3) claims do not typically allege that state authorities are “unwilling or unable to provide protection,” the language of the statute, allows it to reach “indirect efforts to thwart equal protection.” A Construction of Section 1985(c), supra note 17, at 420.
. Some courts have held that § 1985(3) covers violations of federal statutory rights. E.g., Hodgin v. Jefferson, 447 F.Supp. 804 (D.Md. 1978) (claims based on § 3 of the Equal Pay Act); Broadcast Employees v. International Bhd. of Teamsters, 419 F.Supp. 263 (E.D.Pa. 1976) (conspiracy to violate Labor Management Reporting and Disclosure Act), aff’d in part and reversed in part on other grounds, 614 F.2d 846 (3d Cir. 1980); Milner v. National School of Health Technology, 409 F.Supp. 1389 (E.D.Pa.1976).
In Great Am. Fed. Sav. & Loan Ass’n v. Novot-ny, 442 U.S. 366, 370 n.6, 99 S.Ct. 2345, 2348 n.6, 60 L.Ed.2d 957, 962 n.6 (1979), however, *1013the Supreme Court specifically declined to decide “whether § 1985(3) creates a remedy for statutory rights other than those fundamental rights derived from the Constitution.” Justice Powell suggested in his concurring opinion that the statute’s “reach is limited to conspiracies to violate those fundamental rights derived from the Constitution.” Id. at 378, 99 S.Ct. at 2352, 60 L.Ed.2d at 967. Justice Stevens went further and said, “I do not believe that [§ 1985(3) ] was intended to provide a remedy for the violation of statutory rights — let alone rights created by statutes that had not yet been enacted.” Id. at 385, 99 S.Ct. at 2355, 60 L.Ed.2d at 971 (concurring opinion). Justices White, Brennan, and Marshall expressed the opposite view in their dissenting opinion: “[Section] 1985(3) encompasses all rights guaranteed in federal statutes as well as rights guaranteed directly by the Constitution.” Id. at 384 n.5, 99 S.Ct. at 2357 n.5, 60 L.Ed.2d at 971 n.5; cf. Note, Private Conspiracies to Violate Civil Rights: The Scope of Section 1985(3) Añer Great American Federal Savings & Loan Association v. Novot-ny, 61 B.U.L.Rev. 1007, 1028-33 (1981) (arguing that § 1985(3) should be applied “only to statutes whose primary purpose is to guarantee equal treatment”).
Some courts have also held that “[violations of state conferred rights and privileges are sufficient to constitute a deprivation of ‘equal protection of the laws.’ ” Life Ins. Co. of N. Am. v. Reichardt, 591 F.2d 499, 504-05 (9th Cir. 1979) (violation of California’s Civil Rights Act) (decided before Novotny); accord, Harrison v. Brooks, 446 F.2d 404 (1st Cir. 1971) (zoning law infringement). The Supreme Court suggested in Novotny, however, that a denial of rights under state laws may not be covered under § 1985(3) unless independently unconstitutional. See 442 U.S. at 377, 99 S.Ct. at 2351, 60 L.Ed.2d at 966 (§ 1985(3) provides “a civil cause of action when some otherwise defined federal right — to equal protection of the laws or equal privileges and immunities under the laws — is breached by a conspiracy in the manner defined by the section”) (emphasis added).
. Griffin arose out of the dismissal of a complaint for failure to state a cause of action.
. Novotny held that § 1985(3) could not be invoked to redress violations of Title VII. Rights created by the Equal Employment Opportunity Act could not “be asserted within the remedial framework of § 1985(3)” because Title VII provided its own remedial apparatus. 442 U.S. at 377, 99 S.Ct. at 2351, 60 L.Ed.2d at 966; cf. Note, supra note 34, at 1019-21 (arguing that § 1985(3) is “neither purely remedial nor purely substantive, but rather a mixture”).
. In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Court held that there was a federal cause of action for damages under the fourth amendment upon proof of damages resulting from violations of that amendment by federal agents acting under col- or of federal authority.
. We, therefore, agree with the Fourth Circuit’s refusal to recognize a § 1985(3) cause of action for private interference with the “associational right” of belonging to the Ku Klux Klan. Bellamy v. Mason’s Stores, Inc., 508 F.2d 504 (4th Cir. 1974). This holding is correct, in part, because the right of association derives from the first amendment — itself framed as a prohibition against the federal government and not against private persons. A number of other courts have declined to extend § 1985(3) protection to infringements of all constitutional rights.
First amendment:
Murphy v. Mount Carmel High School, 543 F.2d 1189 (7th Cir. 1976).
Sex discrimination:
Doski v. M. Goldseker Co., 539 F.2d 1326 (4th Cir. 1976) (employment); Cohen v. Illinois Inst. of Technology, 524 F.2d 818 (7th Cir. 1975) (employment), cert. denied, 425 U.S. 943, 96 S.Ct. 1683, 48 L.Ed.2d 187 (1976).
Procedural due process:
Briscoe v. Bock, 540 F.2d 392 (8th Cir. 1976); Collins v. Bensinger, 374 F.Supp. 273 (N.D. Ill.) (recognizing that § 1985(3) refers only to equal protection and not due process), aff'd mem., 506 F.2d 1405 (7th Cir. 1974), cert. denied, 422 U.S. 1058, 95 S.Ct. 2683, 45 L.Ed.2d 710 (1975).
Other courts, however, have held that § 1985(3) reaches every private conspiracy that Congress has power to forbid. E.g., Means v. Wilson, 522 F.2d 833 (8th Cir. 1975) (interference with right to vote in tribal elections), cert. denied, 424 U.S. 958, 96 S.Ct. 1436, 47 L.Ed.2d 364 (1976); Weise v. Syracuse Univ., 522 F.2d 397 (2d Cir. 1975) (employment discrimination); Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973) (free speech; distribution of campaign material); Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971) (en banc) (free exercise of religion); Richardson v. Miller, 446 F.2d 1247 (3d Cir. 1971) (freedom of expression).
. 29 U.S.C. § 164(b) (“Nothing in this sub-chapter shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.”).
Texas’ Right to Work Law prohibits the denial of employment to anyone because of a failure to pay “any fee, assessment, or sum of money whatsoever” to a union. Tex.Rev.Civ.Stat. Ann. art. 5154a(8a) (Vernon 1971).
. L. Tribe, American Constitutional Law § 12-23, at 702 (1978) (emphasis and footnotes omitted).
. Pages 991-992 supra.
. Page 994 supra (emphasis added).
. Cross Construction hired the workers they needed without inquiring as to their union affiliation. In fact, some of the Cross Construction employees did belong to unions.
. 403 U.S. at 102, 91 S.Ct. at 1798, 29 L.Ed.2d at 348 (1971).
. As the majority opinion points out, other circuits have also extended § 1985(3) to cover non-racial classes. Page 991 supra.
. See generally Note, The Class-Based Animus Requirement of 42 U.S.C. § 1985(c): A Suggested Approach, 64 Minn.L.Rev. 635 (1980).
. We note that in their amended complaint, the plaintiffs purported to represent a class of persons composed of four categories or subclasses of plaintiffs consisting of:
(a) All persons presently employed by A. A. Cross Construction Company, Inc. (hereinafter called “Cross”), their wives and children;
(b) All persons, together with their wives and children, who may become employed by Cross and perform work leading to construction of the Alligator Bayou Pump Station on the hurricane protection levee along Taylor’s Bayou near Port Arthur, Jefferson County, Texas;
(c) All persons, their wives and children, and all firms and corporations who may supply, deliver, or provide labor, materials, goods or services to Cross or others for construction of the Alligator Bayou Pump Station;
(d) All persons, their wives and children, who may lawfully be present upon the site of *1017the Alligator Bayou Pump Station, or the ways leading thereto.
Interestingly, we found no indication, in our examination of the record, of any attempt to have the class certified. Final judgment, therefore, was rendered only on behalf of the named plaintiffs.
. DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327 (9th Cir. 1979).
. Carchman v. Korman Corp., 594 F.2d 354 (3d Cir.), cert. denied, 444 U.S. 898, 100 S.Ct. 205, 62 L.Ed.2d 133 (1979).
. Lessman v. McCormick, 591 F.2d 605 (10th Cir. 1979).
. McLellan v. Mississippi Power & Light Co., 545 F.2d 919 (5th Cir. 1977) (en banc).
. Bricker v. Crane, 468 F.2d 1228 (1st Cir. 1972) , cert. denied, 410 U.S. 930, 93 S.Ct. 1368, 35 L.Ed.2d 592 (1973).
. Kimble v. D. J. McDuffy, Inc., 648 F.2d 340 (5th Cir. 1981) (en banc), cert. denied,-U.S. -, 102 S.Ct. 687, 70 L.Ed.2d 651 (1981).
. Arnold v. Tiffany, 487 F.2d 216 (9th Cir. 1973) , cert. denied, 415 U.S. 984, 94 S.Ct. 1578, 39 L.Ed.2d 881 (1974).
. McLellan, 545 F.2d at 932-33.
. Compare pages 995-996 supra with the panel opinion, Scott v. Moore, 640 F.2d 708, 718 (1981) (the class composed of “nonunion workers and their employers . . . falls within the statute’s protective ambit”).
. Pages 995-996 supra.
. Canlis v. San Joaquin Sheriff’s Posse Comitatus, 641 F.2d 711, 720-21 (9th Cir.) (“The law of this circuit is clear: the plaintiff must be a member of the class discriminated against to claim the benefits of § 1985(3).”), cert. denied, 454 U.S. 967, 102 S.Ct. 510, 70 L.Ed.2d 383 (1981); Briley v. California, 564 F.2d 849, 858-59 (9th Cir. 1977); Lopez v. Arrowhead Ranches, 523 F.2d 924, 927 (9th Cir. 1975).
. Novotny, a male, was a loan officer and member of the Savings and Loan Association’s Board of Directors. He alleged that when he “expressed support for the female employees at a meeting of the board of directors, his connection with the Association abruptly ended.” 442 U.S. at 370, 99 S.Ct. at 2347, 60 L.Ed.2d at 962. The en banc court of appeals for the Third Circuit held that Novotny was injured as a result of the conspiracy motivated by an invidious animus against women and had standing to bring suit under § 1985(c). 584 F.2d 1235, 1244-45 (3d Cir. 1978) (en banc). The Supreme Court majority did not, however, address this issue.
Justice White in his dissent stated: “Because § 1985(3) provides a remedy for any person injured as a result of deprivation of a substan*1019tive federal right, it must be seen as itself creating rights in persons other than those to whom the underlying federal right extends.” 442 U.S. at 390, 99 S.Ct. at 2358, 60 L.Ed.2d at 975.
. Griffin v. Breckenridge, 403 U.S. at 104, 91 S.Ct. at 1799, 29 L.Ed.2d at 349.
. Page 996 supra.
. Page 997 supra; see Frantz, Congressional Power to Enforce the Fourteenth Amendment Against Private Acts, 73 Yale L.J. 1353, 1359 (1964); Wiidman, 42 U.S.C. § 1985(3) — A Private Action to Vindicate Fourteenth Amendment Rights: A Paradox Resolved, 17 San Diego L.Rev. 317 (1980); A Construction of Section 1985(3), supra note 17, at 440; Note, The Troubled Waters of Section 1985(3) Litigation, 1973 Law & Soc.Ord. 639; Comment, Private Conspiracies to Violate Civil Rights, 90 Harv.L.Rev. 1721, 1722 n.ll (1977). But see Note, Federal Power to Regulate Private Discrimination: The Revival of the Enforcement Clauses of the Reconstruction Era Amendments, 74 Colum.L.Rev. 449, 516-17 (1974).
Compare United States v. Guest, 383 U.S. 745, 783, 86 S.Ct. 1170, 1191, 16 L.Ed.2d 239, 263 (1966) (Brennan, J., concurring) and Action v. Gannon, 450 F.2d 1227, 1235 (8th Cir. 1971) (en banc) with Dombrowski v. Dowling, 459 F.2d 190, 196 (7th Cir. 1972) and Retail Clerks Local 770 v. Retail Clerks Int’l Ass’n, 359 F.Supp. 1285, 1287 (C.D.Cal.1973).
. We would hold that the fourteenth amendment permits Congress to enact the statute if the statute is interpreted as we have suggested it should be: to provide a remedy for private conduct designed to deny a citizen equal protection of the laws because of his membership in a class that is protected by the fourteenth amendment. The class of persons who want to work for a nonunion employer, however, is not thus protected by the fourteenth amendment. We consider, therefore, the question whether Congress relied on the commerce clause in enacting the statute.
. See, e.g., Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964); United States v. Wrightwood Dairy Co., 315 U.S. 110, 119, 62 S.Ct. 523, 526, 86 L.Ed. 726, 732 (1942); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937).
. 403 U.S. at 105, 91 S.Ct. at 1800, 29 L.Ed.2d at 350.
. E.g., United States v. Dewitt, 76 U.S. (9 Wall.) 41, 19 L.Ed. 593 (1870) (invalidating federal statute because the commerce clause was a denial of power to interfere with internal trade and business of the States); Paul v. Virginia, 75 U.S. (8 Wall.) 168, 19 L.Ed. 357 (1869) (holding insurance contracts not to be articles of commerce). “ ‘Relatively little emerges up to the death of [Chief Justice] Waite in 1888, *1020regarding the Court’s attitude towards the commerce clause as an affirmative instrument for promoting “commerce among the states.” The preoccupation [of earlier periods] is with the restrictive use of the clause.’ ” J. Nowak, R. Rotunda & J. Young, Handbook on Constitutional Law 134 (1978) (brackets in original) (quoting F. Frankfurter, The Commerce Clause Under Marshall, Taney and Waite 7 (1964) (first published 1937).
. See cases cited in note 64 supra.
. E.g., 29 U.S.C. § 203(s) (Supp. IV 1980) (defining an enterprise engaged in commerce for purposes of the Fair Labor Standards Act as, inter alia, an enterprise whose annual gross volume of business is not less than $250,000).
. Page 995 supra (emphasis added).
. Smith v. Allwright, 321 U.S. 649, 669, 64 S.Ct. 757, 768, 88 L.Ed. 987, 1000 (1944) (Roberts, J., concurring).
. Section 6 of the Norris-LaGuardia Act provides:
No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute, shall be held responsible or liable in any court of the United States for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof.
29 U.S.C. § 106 (emphasis added).
. United Bhd. of Carpenters & Joiners v. United States, 330 U.S. 395, 404, 67 S.Ct. 775, 780, 91 L.Ed. 973, 983 (1947).
. Id. at 404, 407, 67 S.Ct. at 780, 781, 91 L.Ed.2d at 983, 984.
. The employer there had attempted to open a mine with miners belonging to a union rival of the United Mine Workers Union. Armed members of the UMW then forcibly prevented the opening of the mine, threatened the employer, and beat an organizer for the rival union. The mine was kept closed by peaceful picketing. Gibbs, the supervisor of the mine, sued for damages caused by the illegal activity. The Supreme Court held that damages flowing from the violence used to close the mine could be recovered under state law, but the Court specifically required use of the clear proof standard.