concurring dubitante1.
I essentially agree with the court’s conclusions that: (1) the Department of Com*203munity Affairs has the power to waive enforcement of the Rooming and Boarding House regulations; (2) there was no justiciable controversy between TSA and the state regarding the waived provisions of the regulations; (3) with respect to the non-waived provisions of the regulations and the residents’ “bill of rights,” TSA’s objections based on the free exercise claim alone must be rejected on the authority of Smith; (4) in view of the change in the law wrought by Smith, it is appropriate to explore on appeal the existence vel non of a hybrid right of association reinforced by free exercise claim concerns even though the issue was not raised in the district court; (5) no hybrid right based upon religious association can survive Smith; and (6) TSA’s equal protection and entanglement claims are without merit. I therefore join in parts III, IVA, V and VI of the court’s opinion. However, although I agree with some of the underpinnings of parts II and IVB, I doubt the correctness of the ultimate conclusions of those segments of the opinion, hence this separate statement.
I.
With the narrow exception carved out in Part IV of its opinion (relating to a hybrid right of association reinforced by free exercise claim concerns), the court has held that TSA’s constitutional challenge to various provisions of the New Jersey Rooming and Boarding House Act (“the Act”) and the “bill of rights” fails for two independent reasons: (1) the Department of Community Affairs’ “waiver” of regulatory enforcement and the unlikelihood of a private suit by a resident render TSA’s challenge unripe; and (2) the Supreme Court’s recent decision in Employment Division, Department of Human Resources of Oregon v. Smith, — U.S.-, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), precludes TSA’s free exercise challenge. Although I generally concur with these two rationales and the court’s result, I am concerned that the court, to TSA’s detriment, has painted with too broad a brush, at least in one spot on the canvas.
In particular, I am concerned about clause (n) of the residents’ “bill of rights.” This clause empowers a resident (“beneficiary”) of a TSA facility to bring a private suit against TSA to enforce his or her “right ... to practice the religion of his or her choice, or to abstain from religious practice.” N.J.S.A. 55:13B-19(n). As with other provisions of the Act and “bill of rights,” TSA believes that clause (n) infringes upon its free exercise rights, and thus would have us render a declaratory judgment that the provision is unconstitutional. I believe that TSA may have a point with respect to clause (n). I am not sure that either of the court’s rationales— ripeness or Smith — is sufficient to deny TSA’s clause (n) challenge.
A.
Although the Department of Community Affairs may waive enforcement of administrative regulations, it clearly lacks the authority to waive the private right of action granted beneficiaries under the “bill of rights.” The court does not hold to the contrary. Thus, a genuine possibility remains that a beneficiary will sue TSA, for actual and punitive damages, for violating clause (n). See N.J.S.A. 55:13B-21. The question is whether, in light of this possible suit, TSA’s free exercise challenge to clause (n) is ripe for review.
The standard applicable to determination of ripeness is whether the prospect of suit is “not imaginary or speculative.” Younger v. Harris, 401 U.S. 37, 42, 91 S.Ct. 746, 749, 27 L.Ed.2d 669 (1971). I am not convinced that it is imaginary or speculative that a beneficiary would sue TSA alleging that he or she improperly was forced to attend religious services. Indeed, I believe it is quite possible that such a suit eventually will be brought. This threat of suit is sufficiently tangible and immediate, in *204my view, to warrant holding TSA’s clause (n) claim ripe.
The argument for ripeness becomes even more compelling, however, when one considers TSA’s claim that the threat of such a suit also will have a significant and immediate “chilling” effect on the exercise of its first amendment rights. The court intimates that any such “chilling” would be the product of TSA’s “subjective,” which I take to mean irrational, idiosyncratic, or unreasonable, fear of a private suit. See majority at 194. I disagree.
In purely rational, if somewhat simplified, terms, the appropriateness of TSA’s feeling “chilled” can be analyzed in terms of its expected damages for continuing to engage in its mission. This expected damage calculation is the product of three variables: (1) the probability that a suit will be brought; (2) the probability that TSA will be adjudged to have violated its beneficiaries’ rights; and (3) the magnitude of damages that would be awarded. As I have already noted, the possibility of suit is not insubstantial. The possibility that TSA will be adjudged liable is difficult to assess (a circumstance that itself warrants additional caution by TSA). Considering, however, that it appears to be violating the plain language of clause (n), TSA must assume its prospect of liability to be significant. If TSA’s activities were ultimately found violative of clause (n), its liability— considering the numerous beneficiaries who might join in a class action — could be sizeable.
Admittedly, this is a cursory review of TSA’s prospects. No doubt TSA has assessed its prospects in considerably greater detail. I am unwilling, however, based on this analysis, to conclude that TSA is irrational or unreasonable on this point. Indeed, I think it obvious that TSA has an eminently rational reason to feel “chilled” in the ongoing exercise of its mission.
In light of TSA’s objectively reasonable claim that it will be “chilled” in the exercise of important constitutional rights, the court’s “realistic” standard for ripeness may be too high. See majority at 193-94 (arguing that “[njothing in the current record indicates that TSA has been threatened with suit by a former beneficiary or provides any other reason to believe that TSA’s professed fear of a beneficiary suit is a realistic one.” (emphasis added)). The caselaw seems to support my view. See, e.g., Planned Parenthood Ass’n. v. Kempiners, 700 F.2d 1115, 1122 (7th Cir.1983) (“Requirements of ripeness are less strictly construed in the first amendment context due to the chilling effect on protected expression which delay might produce.”); see also 13A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3532.3 (2d ed. 1984) (“First Amendment rights of free expression and association are particularly apt to be found ripe for immediate protection, because of the fear of irretrievable loss.”).2
B.
In addition to the ripeness concerns explained above, I find the court’s avoidance of TSA’s clause (n) claim unsatisfactory for another reason. I believe that it is possible that clause (n) is specifically directed to religious practice and therefore not within the ambit of Smith. The holding in Smith is that generally applicable laws that, although not intended to regulate religious beliefs or practices, do so incidentally, cannot be challenged on free exercise grounds. 110 S.Ct. at 1602. Hence, Oregon’s decision to criminalize the possession of controlled substances, including peyote, was found not to infringe upon the free exercise rights of members of the Native American Church. I am not convinced, however, that clause (n) fairly can be described as a generally applicable law not intended to regulate religion. Indeed, the plain lan*205guage of the clause speaks directly to “religious practice.”
The implications of this conclusion, for me at least, are not clear. That is because I am not sure whose free exercise rights should properly concern us if TSA were permitted to challenge clause (n) — those of the beneficiaries or those of TSA. This is a subtle and difficult question. In most cases involving an organization’s challenge to governmental regulation, the interests of the organization and its members, vis a vis the government, are roughly or completely congruent. Here, however, the respective free exercise interests of TSA and its beneficiaries appear substantially at odds. That is because it seems likely that at least some of TSA’s beneficiaries are not interested in religion, or at least not in TSA’s type of religion, but rather are at the Center to put their lives in order. By contrast, TSA wishes to pursue its mission to rehabilitate the socially downtrodden, in part through religious indoctrination, notwithstanding the religious predispositions of its beneficiaries. In view of my dubi-tante posture, however, I do not attempt to resolve this difficult legal issue here.
C.
Despite what may be read as my intimation that the case is quite justiciable, and outside the scope of Smith, I am not sufficiently certain of my ground to lodge a dissent. This is, in part, because I think the ripeness issue is exquisitely close and because the considerable tension between the free exercise rights of TSA and its beneficiaries may well justify the court’s conclusion that TSA’s challenge is unripe. Arguably, the court will be in a better position to consider this issue in any future litigation brought against TSA by a beneficiary or class of beneficiaries. At such time, the beneficiaries would be able to present their interests personally, and presumably more forcefully than the state seems willing to do at this juncture. Nonetheless, I remain dubitante.
II.
I turn to the court’s recognition of the continuing viability, unhindered by Smith, of TSA’s hybrid right to associate for free speech purposes. I find the court’s legal analysis most impressive. However, I find the analogy upon which the court rests the final result (including the remand to the district court for factfinding) unpersuasive.
In NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), without which the court’s opinion falters, there was an “uncontroverted showing” that NAACP members whose identities were disclosed had suffered “economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.” See id. at 462, 78 S.Ct. at 1172. The analogy to NAACP in this case is founded on the Howell Affidavit, wherein TSA declares its desire for confidentiality and intimates that disclosure of the identities of beneficiaries might discourage their participation in its mission. However, considering the information required to be disclosed to the regulators (and to no one else), I think it implausible to suggest that we face here the kind of potential harm present in NAACP. The required information about the beneficiaries — name, date of birth, previous address, and next of kin — seems to me relatively innocuous in this context. Indeed, the beneficiaries might want such information kept for their protection, and the state interest in obtaining it seems strong.
At all events, there is a huge difference between disclosure of this kind of information — which at most would embarrass someone trying to shield his or her misfortune from prying eyes — and that involved in NAACP, which, if disclosed to the wrong persons, could have led to threats, to economic harm, and perhaps to serious personal injury. Although the court simply proposes to remand so that TSA can attempt to bring this case under the umbrella of NAACP, it seems to me extremely unlikely that TSA can do so. I doubt that the game is worth the candle.
III.
In short, the court may be right: (1) that TSA’s clause (n) challenge is neither ripe *206nor permitted by Smith; and (2) that TSA has a protectible, hybrid right of association based upon speech and reinforced by the free exercise clause that may have been infringed. But I remain dubitante, hence this separate statement.
. The term "dubitante" "is affixed to the name of the judge in the reports to signify that he doubted the decision rendered." Black’s Law *203Dictionary 448 (5th ed. 1979). Dubitante opinions are relatively rare, although not altogether novel; a computer assisted search of federal court cases yielded 101 cases containing or citing to dubitante opinions.
. It follows that TSA’s free exercise challenges to all of the provisions of the “bill of rights”— not just its challenge to clause (n) — may be ripe. This would not alter, however, the correctness of the majority’s rejection of TSA’s challenges to the provisions other than clause (n). As discussed below, because these provisions do not address religion directly, TSA’s challenges to them fail independently under Smith.