dissenting:
This case involves a dispute over zoning restrictions placed by Jefferson County, Colorado, on places of worship.
In July 1974, the Messiah Baptist Church (Church) purchased approximately eighty acres of vacant land in Jefferson County, Colorado. The land was located in an area of the County which was zoned Agricultural Two District (A-2). The A-2 zoning district allowed general ranching, intensive agricultural use, and agriculturally-related uses. Land in the A-2 zoning district could be used for single-family dwellings, barns, stables, poultry hatcheries, fish hatcheries, dairy farms, forestry farms, fur farms, greenhouses, roadside stands, feedlots, dog kennels, catteries, veterinary hospitals, and certain other related uses. Land in the A-2 zoning district could not be used for schools, community buildings, and churches, even as special uses, under the 1974 zoning regulations.
In 1974, the Jefferson County zoning regulations provided for twenty-five zoning districts. Sixteen of these districts, including A-l, A-2, and R-T, authorized a residential use in some form. Even though *828churches were permitted as of right in every other zone where residences were permitted, churches were not permitted in the A-l, A-2, and R-T .districts.
In September 1974, the Church applied for a building permit to erect a single structure which was to be used for worship, administrative offices, and school purposes. The application was denied. Two years later, in July 1976, the County amended the A-2 zoning regulations to authorize church uses by special-use permit, subject to approval of the planning commission and the County.
In April 1978, the Church applied for a special-use permit to build a 12,000 square foot structure to be used for worship services, administrative offices, classrooms, recreation purposes, parking areas for 151 vehicles, and an “amphitheater” where worshipers could park and, without leaving their cars, listen to religious services through means of individual sound transmission devices similar to those used by “drive-in” movie theaters.
A public hearing was held before the planning commission concerning the Church’s application for a special-use permit. The planning commission denied the special-use permit. Without any attempt to suggest ways of eliminating or reducing its concerns, the commission gave nine reasons for the denial, which included access problems, erosion hazards, and the fact that fire protection for the site was inadequate. There are no constitutionally adequate standards in the ordinance which specifically guide the commission in its exercise of discretion to grant or deny a use permit for a place of worship in the subject zone.1
Places of worship have in almost all religions been as integral to their religion as have Sunday School, preaching, hymn singing, prayer, and other forms of worship which we have traditionally recognized as the “exercise” of religion.2 Churches are the situs for the most sacred, traditional exercise of religion: baptisms, confirmations, marriages, funerals, sacramental services, ordinations, and rites of passage of all kinds.
In the free exercise context, churches serve much the same function as public forums do in the free speech context. Since time immemorial, citizens have gathered in public forums for speech and assembly purposes under the highest level of constitutional protection. The right to assemble or speak in a public forum cannot be absolutely prohibited, and may only be *829infringed by narrowly-drawn and manner restrictions. Similarly, the place of worship is central to the first amendment concept of free exercise as essentially the only place of religious “assembly” and the central place for the expression of religious “speech.” Thus, when government agencies seek to encumber the use of buildings for religious worship, they are, in fact, impinging on speech, assembly, and religious exercise through the use of zoning ordinances. The impingement is the same as when government prohibits the use of buildings for live entertainment, see Schad, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (zoning ordinance prohibiting use of building for live entertainment anywhere in town found unconstitutional); the use of public forums, such as roads or sidewalks, for parades or protests, see United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983), Shuttlesworth v. Burmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969), Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939), and the use of property for other speech-related activities whether within or without buildings. See City of Lakewood v. Plain Dealer Publishing Co., — U.S. -, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). The outright prohibition or the discretionary power (unaccompanied by adequate standards) to deny parade or protest permits on public property surely is not more odious to the first amendment than the outright prohibition or legally power deny the right to use buildings for worship, religious communication, and religious assembly on one’s own property.3 As already suggested, to distinguish building permit cases such as the case at hand from those involving the “use” of already-existing buildings is facile.4 What is at stake is the power of the County, through zoning ordinances, to prohibit legitimate and protected first amendment uses at particular locations. Recently, in a similar case, the Fifth Circuit properly refused to apply that kind of distinction where a Muslim church sought to use an existing building as its place of worship. Islamic Center of Mississippi, Inc. v. City of Starkville, 840 F.2d 293 (5th Cir.1988). Indeed, if first amendment free exercise rights are not triggered by the impingement on places of worship, the right of free exercise of religion is for practical purposes subject to broad infringement in all of its aspects except perhaps belief.
In these zoning cases involving places of worship, we have implicated at a minimum three different and cumulative interests recognized by the first amendment itself: speech, assembly, and religious exercise. In fact, insofar as I can discern, even the cases which have sustained zoning ordinances against free exercise claims have nearly always acknowledged some degree of encroachment upon free exercise interests.5
*830In noting the vital importance of places of worship to the free exercise of religion, the exercise of speech, and the exercise of the right to assemble, I do not here suggest that the state is powerless to regulate either the location or the use of places of worship. Nor is it necessary to this case or perhaps even wise to suggest that the correct standard to be applied is one of the highest standards known in the law, the compelling state interest. However, it would be inappropriate to continue to apply the lowest known standard — rational basis —to zoning ordinances, when they are used to prohibit the use of buildings as churches. See generally West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628 (1943) (“The right of a State to regulate ... may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a ‘rational basis’ for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds.”).
Property is not an unlimited commodity. Congregations pay an onerous price in time, money, and convenience when forced to select worship sites at a considerable distance from their homes. See, Islamic Center, 840 F.2d 293. Although other sites may be available, the first amendment demands that we know where, how many, how suitable, how convenient, and at what cost before we properly can judge the burden on exercise as compared to the burden on the state’s legitimate interests.6
In cases involving the free exercise clause of the first amendment, courts typically have engaged in the characterization game by declaring which activities are “secular,” “fundamental,” or “integral.” See, e.g., Grosz, 721 F.2d 729; Lakewood, 699 F.2d 303. Thus, it is not surprising that at least one other circuit, in a case with facts and issues very similar to the one before us, has characterized this type of dispute as one concerning the mere construction of a building and thus a secular activity. See Lakewood, 699 F.2d at 303. In Lakewood, as a result of the zoning ordinance, the congregation was prevented from building a church on its own property. The Sixth Circuit did not justify or explain its characterization, but rather declared that the restrictive zoning ordinance didnot force the congregation to abandon its religious beliefs through financial coercion or criminal penalty and did not tax the exercise of religion. No consideration was given to the magnitude of the financial or convenience burden which an alternate site location might impose. It is not self-evident that an attempt to acquire and use an alternate site is always a trivial burden. Nor is it self-evident that a congregation’s attendance pattern can be easily accommodated at an alternate site without substantial individual and collective burden.
Here, the majority opinion does not adopt quite such an extreme view but nonetheless targets the activity as implicating only minor or insignificant free exercise interests. Naturally, if we characterize the restricted activity as secular, there is no point to this litigation or to a discussion of the restrictions, since the minimum threshold of a rational basis, required in zoning cases not implicating the first amendment, can be satisfied so simply as to not admit of argument. See Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). A colorable claim of infringement upon first amendment liberty demands more. “ ‘One is not to have the exercise of [one’s] liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.’ ” Schad, 452 U.S. at 77, 101 S.Ct. at 2187 (citing Schneider v. State, 308 U.S. 147 at 163, 60 S.Ct. 146 at 151, 84 L.Ed. 155 (1939)). The facts of this case easily present such a colorable claim.
To claim that this case is only concerned with the construction of a building is to miss the point. Surely no one would con*831tend that it would be constitutional to zone an entire state or for that matter the whole country so as to prohibit churches. Even the justices who would broadly uphold zoning of some first amendment activities have not endorsed such a sweeping view. See Schad, 452 U.S. at 85-88, 101 S.Ct. at 2191-92 (Burger, C.J., dissenting). Congregants would be free to hold whatever religious beliefs they chose, but none would have a house of worship in which to come together. Such a situation would undoubtedly infringe upon “free exercise.”
Initially the Supreme Court analyzed free exercise cases in terms of whether they involved “belief” or “conduct,” upholding the protection of religious “belief” while sometimes declaring certain “conduct” to be unprotected. Compare Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977); United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965), with Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1978); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). More recent Supreme Court decisions have broadened and added substance to the term “exercise.” In my view, church-based “religious exercise” is as clearly protected under modern first amendment jurisprudence as is refusal to work on the Sabbath or refusal to send one's children to public schools. See Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), and Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). It seems to me that even under the pre-Sher-bert/Yoder standards, the building, maintenance, use places for first amendment protection not only because housed worship has been historically central to religion but also because such activities necessarily involve speech and assembly.
The rational basis standard applicable under Euclid, 272 U.S. 365; 47 S.Ct. 114, 71 L.Ed. 303, trivializes the burdening role which zoning can and does play in the exercise of religious expression. On the other hand, the complexity of meeting the legitimate public concerns expressed in Euclid suggests that applying the most rigid compelling state interest test would be improvident when there is available a set of well-developed standards cautiously worked out for balancing these unavoidable and constantly recurring conflicts between the two constitutionally acknowledged interests.7
Fortunately we are not left to such extreme tests as the only alternatives in adjusting the difficult balance between first amendment protection of worship and the state’s interest underlying the validity of zoning ordinances. Through a solid body of precedent, the Supreme Court has developed a standard for reviewing government regulations which infringe on first amendment interests. In those cases the Supreme Court has applied a time, place, and manner test to speech and assembly cases. In my view, cases involving the effect of zoning on religious “exercise” are properly subject to the same analysis.8 It is not apparent to me how place-of-worship cases can be analytically distinguished from oth*832er speech and assembly cases involving time, place, and manner restrictions. Indeed, the Supreme Court has already indicated that regulation of religious speech must be reviewed by applying time, place, and manner restrictions. See Heffron v. International Soc’y for Krishna Consciousness, 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981). Rather than being cast adrift to engage in decision by ad hoc characterization, reliance on the speech and assembly cases provides a useful standard and procedural framework for determining the proper balance between the interests of the state and of persons seeking to engage in religious speech, assembly, and worship activities.
If it is conceded, as I believe it must be, that using buildings as places of worship is not a mere fringe or tangential part of religious exercise but rather central to the congregational worship experience, then it seems much easier to select and apply appropriate standards to the case which is before us.
In addition to avoiding the ad hoc characterization problem, application of time, place, and manner restrictions to cases involving zoning laws would result in at least four significant benefits:
First, the approach provides a higher level of judicial protection, appropriate to the religious interests involved, than does the due process analysis. The burden of proof is shifted definitively to the government once the initial infringement is recognized. Moreover, there are several steps at which the government may fail to carry its burden: it may fail to demonstrate that the ordinance is a neutral one; it may fail to demonstrate that its interests are sufficiently substantial; or it may fail to demonstrate that its chosen means are least burdensome on protected activity.
Second, the least restrictive alternative inquiry, like the due process analysis, provides a flexibility that enables a government to justify its regulation by demonstrating, upon the particular facts of the case, that the ordinance is the least restrictive possible. For example, a municipality may well be able to demonstrate that the construction of a particular church would be unsuitable to a residential area because it would be “basically incompatible with the normal” residential use.
The analysis has the third advantage of enabling a court explicitly to recognize the religious interests involved without inquiring into the nature of the religious interests. A court need not decide that an asserted interest is “fundamental,” “cardinal,” or even not “bizarre” in order to apply the analysis. All it must do is accept the plaintiff’s sincere assertion that the activity restricted by a state regulation is religiously motivated. This removes judicial temptation to shop for the appropriate analysis by categorizing the nature of the religious interest involved.
Fourth, and perhaps most important, the approach eschews the ad hoc balancing process engaged in by the state courts. While such an approach may sometimes arrive at appropriate results, it does so only inconsistently, and at the price of obscuring the relative weights the court has assigned to competing religious and secular interests.
Comment, supra at 1160-61 (footnotes omitted).
From the time, place, and manner cases, a four-step analysis may be distilled. The first step is to determine whether the challenged regulation does indeed infringe upon a first amendment interest. Although characterizing the infringement as “indirect,” the majority and the defendants have acknowledged that the challenged ordinance at least infringes to some degree on a first amendment interest. As I have previously suggested, the infringement is substantial if not central to notions of “exercise” of religion. See ante at 832. The second step is to determine whether the ordinance is content-neutral. Islamic Center is an example of a case where a zoning ordinance was on its face content-neutral among churches, but as applied discriminated against the Muslim religion. In our case, neither ordinance on its face seem to discriminate among churches, although the *8331978 ordinance invites through its overly discretionary use permit device. The third step is to determine the governmental interest at stake. At least since Euclid in 1926, courts have recognized that the government’s interest in zoning is significant, important, or substantial. However, “the presumption of validity that traditionally attends a local government’s exercise of its zoning powers carries little, if any, weight where the zoning regulation trenches on rights of expression protected under the First Amendment.” Schad, 452 U.S. 61, 77,101 S.Ct. 2176, 2187, 68 L.Ed.2d 671 (Blackmun, J., concurring). Finally, under this analysis the state must carry the burden in the first instance to prove that the means it has chosen are narrowly tailored to achieve the state’s legitimate ends.
Because in my view the improper standard was applied, the County never had an opportunity to justify its initial denial of a building permit nor its subsequent denial of the use permit. I do not believe that the 1974 ordinance could facially satisfy the time, place, and manner standard, because its absolute prohibition of churches in the A-2 zone was not narrowly tailored to meet the state's legitimate ends. The limited and inadequate guidelines governing the exercise of discretion in the granting of special use permits also fails to pass constitutional scrutiny. Furthermore, it is doubtful that the reasons actually given by the County for denying the special use permit under the 1978 ordinance were narrowly tailored to minimize infringement on religious exercise. While the very device of a use permit is designed to allow the zoning authorities a means of adjusting particular applications to the site and circumstance, such a device is not intended to grant the authorities unbridled discretion. In the record before us, Jefferson County made no attempt to demonstrate that its denial of the special use permit was narrowly tailored to meet the County’s legitimate ends. At least under the amended ordinance, the defendant could not argue that the zone is incompatible with churches under all circumstances. The amended ordinance declares churches acceptable subject only to a “it must be narrowly drawn and must further a sufficiently substantial government interest.” Schad, 452 U.S. at 68, 101 S.Ct. at 2182.
Under the appropriate test, then, the zoning authorities would have the burden of demonstrating that the access and erosion problems cannot be otherwise solved. The County would have to demonstrate that the Church represented a greater erosion hazard than agriculture or, particularly, feed yards in the same zone. But even if the defendant makes this showing, their burden would also require a showing that the erosion hazards could not be ameliorated in the site plan sufficient to satisfy the minimum standards required for other activities permitted as a matter of right in the same zone. The same analysis is true of fire protection. A requirement in the use permit that an automatic sprinkling system be installed comes to mind.
Left to its own devices, the first time the trial court considered this case it correctly, in my opinion, “accepted the view that because the denial of a special use permit application precluded the plaintiffs from constructing a facility designed for use in religious worship and related activities, the defendant must demonstrate a government interest of sufficient magnitude to override the interest protected by the free exercise clause.” Messiah Baptist Church v. County of Jefferson, 697 F.Supp. 396, 398 (D.Colo.1987). Between that time and the review which resulted in the decision now before us, two decisions of sister circuits, Lakewood, 699 F.2d 303, and Grosz, 721 F.2d 729, intervened. In the absence of guidance from this circuit, the trial court understandably felt it likely that this circuit would follow the characterization of the interest at stake as being merely a secular “building activity”. The trial court did not then have the benefit of the more detailed analysis of the interest at stake contained in the Islamic Center an even more recent decision from the Fifth Circuit. Once the trial court felt directed by those intervening circuit decisions to characterize the interest at stake as the mere secular activity of *834building a building, it reached the only result that such a characterization would permit. Had the court continued in its own original analysis of the interest at stake it undoubtedly would not have granted summary judgment in favor of the defendant zoning authority on the state of the record at that time. The court could not possibly have concluded that as a matter of law the County had satisfied its burden of showing that, facially, the zoning ordinances were narrowly tailored to meet a “sufficiently substantial” government interest or that the alternatives left open were “ample.” See Clark v. Community for Creative Nonviolence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984); Schad, 452 U.S. at 68, 101 S.Ct. at 2182.
The trial court was faced with an additional obstacle which this court also must face. The plaintiffs alleged that the statute was invalid on its face and made no attempt to allege that the statute was invalid as applied. If the correct standard is applied to this case, I conclude that the original ordinance that excluded all church uses from the zone, and the amended 1978 version that permitted churches, subject to essentially standardless permit requirements, were in fact invalid on their face. The 1974 ordinance which flatly prohibited the use of buildings in the A-2 zone as houses of worship unconstitutionally violated both the due process clause of the fourteenth amendment and the free exercise clause of the first amendment. A greater showing than is contained on the face of that ordinance is required to carry the state’s burden when it is demonstrated that it imposes a significant burden on free exercise. The subsequent 1978 amendment allowing churches to be built only with a special use permit lacked adequate standards to guide the discretion of the zoning officials, thus it too fails to pass constitutional muster.9 Indeed, by conceding that churches are in general compatible with the zone subject to the special supervision which use permits entail, the defendant is left without the usual justification that churches are simply incompatible with the overall character of the zone. In the parallel free speech cases, where government has used the permit device as a means of regulating time, place, and manner, the Supreme Court has made clear that the grant of the authority to administer the permit system must be accompanied by adequate objective standards reasonably calculated to insure against arbitrariness, capriciousness, or subterfuge. Plain Dealer Publishing Co., — U.S. -, 108 S.Ct. 2138, 100 L.Ed.2d 771. While there is room for debate about the amount of specificity and detail required of those standards, there is no statute or regulation in this case providing specificity sufficient to meet even the minimum standards.10
Therefore, I would hold that these regulations are invalid on their face. Because the case was presented to the trial court under an improper standard, it is premature to consider possible defenses or any of the other issues presented. I would remand the case to the trial court with the guidance herein given. The court may then shape and judge the case fairly, with each party having advance knowledge of the standard and burdens they must meet. If necessary, amendments to the pleadings should be permitted to insure due process.
In light of the views expressed herein, I must respectfully dissent from the opinion of the court.
. "[W]hen a zoning law infringes upon a protected liberty, it must be narrowly drawn and must further a sufficiently substantial government interest.” Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68, 101 S.Ct. 2176, 2182, 68 L.Ed.2d 671 (1981).
. At least one scholarly piece has synthesized this notion by suggesting:
Even for religious groups that place less emphasis on ritual, the assembly of a community of believers is an integral part of religion. The periodic reaffirmance of belief in an assembly of fellow believers reinforces the members’ commitment to their individual faith. A religious group is more than the sum of its individual believers: the assembly of its members is essential to the creation of a unified community with a shared spiritual life and common goals. The assembly of the members of the church serves not only to create a sense of community among the members themselves through the shared expression of common beliefs, but also to communicate to outsiders the church’s identity as a group committed to a common ideal.
An individual's participation in group worship may serve not only to communicate her views within and without the group, but also as a form of self-expression, important to the inward self. Worship according to a given ritual has a psychological significance for believers, providing them with support and a sense of historical continuity with past participants in the same rituals. The spiritual and aesthetic experience that religious ritual offers contributes to the inner life of many individuals. The sense of community created by group worship is a factor in many persons' sense of self. Moreover, the very decision to be a member of a religious group, and to publicize that decision by attending religious services, may serve as a statement to the world of the way in which the believer chooses to be identified. As one commentator has observed, “freedom to have impact on others —to make the ‘statement’ implicit in a public identity — is central to any adequate conception of the self.”
Comment, Zoning Ordinances Affecting Churches: A Proposal for Expanded Free Exercise Protection, 132 U.Pa.L.Rev. 1131, 1150-51 (1984) (footnotes omitted).
.Although the parade and protest cases involved speech on public, as opposed to private property, if anything, the Government interest in controlling public property is greater than its interest in controlling private property. At stake in the instance of private property is the individual’s interest in speech, assembly, free exercise, property, and the uses to which their own land may be put. The Government has correspondingly less interest (and the individual land owner has greater interest) in regulating private rather than public property. Even in the Eleventh Circuit case of Grosz v. City of Miami Beach, 721 F.2d 729, 740 (1983), cert. denied, 469 U.S. 827, 105 S.Ct. 108, 83 L.Ed.2d 52 (1984), where the constitutionality of a zoning ordinance prohibiting churches was upheld, the court acknowledged that: "Admittedly, restriction of religious conduct on public streets and in airports is less burdensome than restriction of such conduct on an individual’s property.”
. Clearly, this dispute is not about building activity but rather is about the "uses” to which a building may be put. It is the County’s zoning code, not the building code, that prohibits worship without a use permit. If the owners of the lot in question wanted to build a 12,000 square-foot manger in which they intended to shelter a flock of sheep, they could do so as a matter of right. If, on the other hand, the land were owned by a hypothetical church, called the Church of the Nativity, which intended to build the exact same structure, every nail and shingle the same, with the purpose to shelter a flock of worshippers, they could not do so without the unguided dispensation of the planning commission.
. See Grosz, 721 F.2d 729; Lakewood, Ohio Congregation of Jehovah’s Witnesses, Inc. v. Lakewood, 699 F.2d 303 (6th Cir.), cert. denied, 464 U.S. 815, 104 S.Ct. 72, 78 L.Ed.2d 85 (1983).
. ‘‘[W]hen the government intrudes on one of the liberties protected by the Due Process Clause of the Fourteenth Amendment, 'this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.’ ” Schad, 452 U.S. at 71, 101 S.Ct. at 2184.
. As one scholar has put it:
A better solution would be to acknowledge that zoning ordinances can affect religious freedom and to subject them to an analysis that explicitly confronts the first amendment interests at stake. Because zoning regulations do not prohibit belief or outlaw behavior that is central to any faith, the government should not have to prove a compelling interest to justify a zoning ordinance. Rather, the analysis appropriate for a neutral government act, like a zoning ordinance, that restricts religious expression should be the same as for neutral government acts that circumscribe secular expression. That analysis, well-established as applied to ordinances regulating the time, place, and manner of a person’s speech, requires that the government justify every such regulation by proving not only that it serves an important government purpose, but also that the purpose could not be accomplished by a means less restrictive of expressive freedom.
Comment, supra, at 1153.
. Although traditional time, place and manner analysis has taken place in the context of cases involving public property, it is not the public/private distinction that is crucial for present purposes, but the nature of the protected activity. It is activity involving speech, assembly, and free exercise which falls under the rubric of first amendment protection.
. "[A] law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional.” Shuttlesworth, 394 U.S. 147 at 150-51, 89 S.Ct. at 938-39.
. ‘‘[M]unicipalities may regulate expressive activity — even protected activity — pursuant to narrowly drawn content-neutral standards; however, they may not regulate protected activity when the only standard provided is the unbridled discretion of a municipal official.” Schad, 452 U.S. at 84, 101 S.Ct. at 2190 (Powell, J., concurring).