(Concurring in part and dissenting in part.)
I concur in the entirety of the majority’s opinion except that, in addition to striking subsection (6) of the Act as unconstitutional on equal protection grounds, I would also find that subsections (5) and (7) offend the Equal Protection Clause of the United States Constitution. I would therefore affirm the district court’s decision in its entirety. Brown v. Alexander, 516 F.Supp. 607 (M.D.Tenn.1981).
I agree with the majority that plaintiff’s First Amendment rights are not violated by the statute in question. There is ample authority for the proposition that, in the public employee context, there is no First Amendment right to dues checkoff or exclusive bargaining privileges. However, I would emphasize that all of the cases so holding involve state regulation of union activity that was content-neutral. None of the cases involve discrimination between different unions on the basis of either ideas or associational activity.
For example, in Smith v. Arkansas State Highway Employees, 441 U.S. 463, 99 S.Ct. 1826, 60 L.Ed.2d 360 (1979), the Court noted: “Far from taking steps to prohibit or discourage union membership or association, all that the Commission has done in its challenged conduct is simply to ignore the union. That it is free to do.” 441 U.S. at 466, 99 S.Ct. at 1828.1 I believe that the State of Tennessee has done far more than simply “ignore” AFSCME with its statute.
In addition, the case law involving some kind of state discrimination between differ*1430ent rival unions all involved the right of the state to favor majority unions, and did not involve any form of content-based regulation. For example, Perry Education Assn. v. Perry Local Educators Assn, - U.S. -, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), involved rights given to a union as exclusive bargaining agent under a collective bargaining agreement. There, the Supreme Court noted: “There is, however, no indication that the school board intended to discourage one viewpoint and advance another. We believe it is more accurate to characterize the access policy as based on the status of the respective unions rather than their views.” -U.S. at-, 103 S.Ct. at 957, 74 L.Ed.2d at 807.
Similarly, Memphis American Federation of Teachers v. Board of Education of Memphis, 534 F.2d 699 (6th Cir.1976), involved privileges given to a majority union representing more than 66 percent of the employees, with exclusive bargaining rights under a collective bargaining agreement. The court noted, however, that “The grant of exclusive privileges by the Board to MEA did not involve the Board in regulating either the content or the subject matter of speech in its schools. The Board neither censored nor promoted a particular point of view.” 534 F.2d at 702.
I believe that subsections (5), (6) and (7) of the statute all involve the State of Tennessee in promoting a particular point of view by favoring one union over another (neither union having a majority of employees or exclusive bargaining rights) on the basis of First Amendment ideas or associational rights. I would therefore analyze these subsections on the basis of a strict scrutiny equal protection analysis and would find these subsections unconstitutional. “[Ujnder the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views.” Police Department v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972). See also Connecticut State Federation of Teachers v. Board of Education Members, 538 F.2d 471 (2d Cir.1976), where the Court said:
Here, were there a discrimination in fact (i.e., one that puts the minority unions at an actual disadvantage in the competition for membership and majority status), between the CFT and CEA locals in their exercise of associational rights, the defendant school boards would be put to the test of demonstrating that the policies in question are necessary to further a compelling state interest.
538 F.2d at 483.
Under a strict scrutiny analysis, I would find subsections (5) and (7), in addition to subsection (6), unconstitutional, and agree with the conclusion reached by the district court, which held: “But a state cannot choose to support one employee organization over another employee organization simply because members of one organization want to associate with persons from different states or who want to affiliate with other employee organizations.” 516 F.Supp. at 618-19.
It seems to me that the majority essentially follows this analysis in the part of its opinion striking down subsection (6), and I think the same analysis is applicable to subsections (5) and (7).
Subsection (5) requires that the organization have a goal of promoting “An efficient and effective work force in state government in Tennessee.” The majority opinion cites cases such as Pickering v. Board of Education, supra; Civil Service Commission v. National Association of Letter Carriers, supra; and Arnett v. Kennedy, supra, for the proposition that the promotion of an “efficient and effective work force” can be a valid objective for a state. I agree with this general proposition.
However, none of these cases deals with this goal in the abstract. They all deal with the specific context of an employee-employer relationship and the rights of the state as an employer to discharge employees for certain reasons, and in this context sustain the state’s objective as an employer of promoting “an efficient and effective work force.” See Pickering (discharge of a *1431teacher for public criticism of a school board); Letter Carriers (upholding provisions of the Hatch Act prohibiting political involvement of federal employees); and Ar-nett (discharge of a federal employee who accused a supervisor of taking a bribe).
There is no indication in this record that AFSCME employees behave any differently on the job than TSEA employees in any specific context that would justify the State of Tennessee, as an employer, in limiting AFSCME’s activities. The state has not pointed to one specific instance where AFSCME’s activities conflict with a goal of “an efficient and effective work force.” Instead, in this context, the standard set by subsection (5) is abstract, ambiguous, standardless, and constitutionally vague. See Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969). Unlike the cases cited by the majority, which indeed recognize that in a specific context “an efficient and effective work force” can be a valid state objective, subsection (5) has no rational connection to this goal, and should not survive strict scrutiny.
I am equally unpersuaded by the majority’s reasoning in upholding subsection (7), the “wholly domestic” requirement. The majority correctly recognizes that, like subsection (6), this clearly impacts on First Amendment associational rights. However, it then goes on to cite and discuss cases that have upheld residency requirements, dealing with requirements favoring local residents over non-local residents for government jobs.
Respectfully, I suggest that this is not the point. Subsection (7) does not simply discriminate against non-Tennessee residents in favor of Tennessee residents. Perhaps this would be constitutionally permissible. Its infirmity lies in the fact that it also discriminates against Tennessee residents similarly situated. Two State of Tennessee prison guards, living next door to each other, both paying taxes to the State of Tennessee, both sending their children to Tennessee schools, both, perhaps, even voting for the same elected officials, will receive different treatment by the State of Tennessee if one decides, for First Amendment reasons, to affiliate with the AFSCME Union instead of the TSEA Organization. I think this is unconstitutional discrimination, having no rational relationship to any goal of favoring local residents over nonlocal ones, and certainly not related to any compelling state interest of the State of Tennessee. The brunt of the discrimination in subsection (7) falls not upon AFSCME members in New York or Michigan, even if this were permissible. The discrimination, instead, falls upon Tennessee prison guards, who are the plaintiffs in this case, working for the State of Tennessee, paying taxes in Tennessee, behaving in every way like all other citizens of Tennessee, who are punished for seeking to associate themselves with the AFSCME union.
For these reasons, I would strike down subsections (5) and (7), in addition to subsection (6). I agree with the majority’s conclusions regarding standing'and elision principles under Tennessee law.
. Similarly, City of Charlotte v. Local 660, 426 U.S. 283, 96 S.Ct. 2036, 48 L.Ed.2d 636 (1976), which found no right to dues checkoff by a union, did not involve discrimination between rival unions.