(dissenting).
I respectfully dissent because I do not interpret the Supreme Court’s remand order as a holding that Tennessee’s biology textbook law is patently unconstitutional. The Supreme Court’s order was as follows:
The judgment is vacated and the ease is remanded to the United States District Court for the Middle District of Tennessee so that it may enter a fresh judgment from which a timely appeal may be taken to the Court of Appeals.
*493This is not a holding that no three-judge District Court was necessary because this state statute is patently unconstitutional,” as the majority interprets the remand order. Had the Supreme Court meant that, it would have said so and would have remanded “to the District Court with directions to enter a decree granting appropriate in-junctive relief,” as it did in Turner v. City of Memphis, 369 U.S. 350, 354, 82 S.Ct. 805, 807, 7 L.Ed.2d 762 (1962), and Bailey v. Patterson, 369 U.S. 31, 34, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962), the cases the majority cites in support of its view. Furthermore, if this view of the Supreme Court’s order is valid, the majority’s discussion of the merits of the Tennessee statute is pure surplusage.
I believe that the proper interpretation of the Supreme Court’s remand order is that this Court, rather than the Supreme Court, should review the merits of the three-judge District Court’s abstention order. Under 28 U.S.C. § 1253 (1970), the Supreme Court does not have jurisdiction to review abstention orders of three-judge district courts which do not grant or deny interlocutory or permanent injunctive relief. Section 1253 allows a party to appeal an order from a three-judge district court to the Supreme Court only if it is an “order granting or denying ... an interlocutory or permanent injunction.” The abstention order appealed from does not grant or deny injunctive relief; it merely postpones decision, without dismissing the complaint. Thus, this case is within a growing line of decisions where the Supreme Court has denied its jurisdiction over appeals from orders of three-judge district courts. See Gonzalez v. Automatic Employees Credit Union, 419 U.S. 90, 95 S.Ct. 289, 42 L.Ed.2d 249 (1974); McCann v. Babbitz, 400 U.S. 1, 91 S.Ct. 12, 27 L.Ed.2d 1 (1970); Gunn v. University Committee, 399 U.S. 383, 90 S.Ct. 2013, 26 L.Ed.2d 684 (1970); Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970); Rockefeller v. Catholic Medical Center, 397 U.S. 820, 90 S.Ct. 1517, 25 L.Ed.2d 806 (1970); Wilson v. City of Port Lavaca, 391 U.S. 352, 88 S.Ct. 1502, 20 L.Ed.2d 636 (1968). See also Thoms v. Heffernan, 473 F.2d 478 (2d Cir. 1973), rev’d on other grounds, 418 U.S. 908, 94 S.Ct. 3199, 41 L.Ed.2d 1154 (1974).
The appeal falls within the rule announced in Goldstein v. Cox, 396 U.S. 471, 90 S.Ct. 671, 24 L.Ed.2d 663 (1970), that an order of a three-judge district court which falls short of adjudicating the constitutional merits of a challenged statute and does not grant or deny preliminary injunctive relief is not appeala-ble to the Supreme Court. Rather, the relevant Court of Appeals must review the appeal’s merits. See also Hutcherson v. Lehtin, 399 U.S. 522, 90 S.Ct. 2238, 26 L.Ed.2d 781 (1970), where the Supreme Court remanded for consideration by the Ninth Circuit of an appeal of a three-judge district court order which had abstained from considering one aspect of the plaintiffs’ constitutional attack on a state statute (313 F.Supp. 1324 (N.D.Cal. 1970)). Here the District Court took no action on Appellants’ motion for preliminary and permanent injunctive relief, so that Goldstein v. Cox required the Supreme Court to remand the appeal to this Court1.*
The language used by the Supreme Court has been standard for several years *494when remanding appeals from three-judge district courts on the ground that they lack jurisdiction under 28 U.S.C. § 1253. See 9 J. Moore, Federal Practice 79 (2d ed. 1973). I do not believe that we are in a procedural quagmire, as the majority suggests exists. The Supreme Court simply directed that this Court,, rather than itself, hear the appeal of the abstention order. We should do so.2
Having jurisdiction over the abstention order’s validity, we might rest our decision on a ground not briefed or argued by the parties — that the three-judge district court should have held that the case involves “no substantial constitutional claim,” and therefore should have dissolved itself for want of jurisdiction under 28 U.S.C. § 2281 (1966). Had this happened, the single district judge would have entered appropriate relief based on the holding that the Tennessee statute is patently unconstitutional on its face. This is the ground on which the majority rests its decision.
I cannot concur. The constitutional issue in this case is not “wholly insubstantial” for the purpose of determining whether' a three-judge district court is necessary under § 2281.
A reading of Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973), reveals a strict standard for refusing to convene a three-judge district court on the ground that the constitutional issue involved is insubstantial.3 In Goosby, the Supreme Court unanimously held:
Title 28 U.S.C. § 2281 does not require the convening of a three-judge court when the constitutional attack upon the state statutes is insubstantial. “Constitutional insubstantiality” for this purpose has been equated with such concepts as “essentially fictitious,” Bailey v. Patterson, 369 U.S., at 33, 82 S.Ct. [549] at 551, 7 L.Ed.2d 512; “wholly insubstantial,” ibid.; “obviously frivolous,” Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 30 S.Ct. 326, 327, 54 L.Ed. 482 (1910); and “obviously without merit,” Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 4-5, 78 L.Ed. 152 (1933). The limiting words “wholly” and “obviously” have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably- render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U.S.C. § 2281. A claim is insubstantial only if “ ‘its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.’ ” 409 U.S. at 518, 93 S.Ct. at 858.
The Goosby plaintiffs had attacked as unconstitutional a Pennsylvania statute which allegedly prohibited persons jailed *495before trial from voting. The Third Circuit affirmed the dismissal of the complaint by a single district judge, citing McDonald v. Board of Election Comm’rs, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969), where the Supreme Court had upheld the constitutionality of an Illinois statute denying absentee ballots to pretrial detainees. The Supreme Court reversed the Third Circuit, holding that McDonald merely upheld the right of a state to limit access to its absentee ballot procedures. The Goosby complaint alleged that Pennsylvania pretrial detainees were absolutely prevented from voting. This was a different case, said the Supreme Court, at least for the purpose of determining whether a three-judge court should have been convened.
The Tennessee biology textbook statute is different from the laws challenged in Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968), and Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 725 (1971), contrary to the holding of the majority. Epperson overturned a. statute which made it unlawful for a publicly employed teacher to teach the theory of Darwinian evolution. The Tennessee statute, by contrast, contains no criminal sanctions and prescribes that religious theories of evolution and the creation be included in the teaching of biology. Thus, it cannot be said that Epperson “leave[s] no room for the inference that the question sought to be raised [by Ap-pellees] can be the subject of controversy.” Goosby, 409 U.S. at 519, 93 S.Ct. at 859.
Likewise, Lemon v. Kurtzman does not foreclose inquiry into Appellees’ defense of the Tennessee statute. Lemon, itself a case provoking five separate opinions, struck down certain state statutes authorizing the expenditure of public funds for particular kinds of support to nonpublic schools. As this Court held in Protestants and Other Americans United v. United States, 435 F.2d 627 (6th Cir. 1970), cert. denied, 403 U.S. 955, 91 S.Ct. 2277, 29 L.Ed.2d 865 (1971):
The decisions of the Supreme Court construing the Free Exercise and Establishment Clauses of the First Amendment have drawn fine distinctions and have laid down rules not easy to apply. They have been decisions by divided courts. 435 F.2d at 630.
Accordingly, we held in Protestants that a substantial question was presented by a complaint and that a three-judge district court should have been convened to consider it. The complaint attacked the constitutionality of a federal statute which authorized “the loaning of library books and materials directly to the parochial schools, rather than the issuing of textbooks directly to the school children,” the latter procedure having been upheld in Board of Education of Central School District No. 1 v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968).
It is impossible satisfactorily to reconcile our holding in Protestants with the decision here. See also Anderson v. Richardson, 454 F.2d 596 (6th Cir. 1972). Like Epperson, Lemon does not foreclose all argument that the Tennessee statute, or a part thereof, is constitutional, at least within the strict test set forth in Goosby. The “establishment” and “entanglement” issues are not “fictitious” or “frivolous.” They deserve consideration by a three-judge district court. They warrant more than the cursory briefing and argument which the parties gave them on this appeal, since the basic issues briefed before us were those of jurisdiction and abstention. Indeed, the three-judge District Court itself, which had the benefit of briefing, stated that it was not “persuaded that the [statute] is clearly lacking in constitutional validity.” The majority’s decision not only violates the rule set forth in Goosby, but it does not accord with the basic Congressional purpose behind the three-judge court statutes. That purpose was succinctly stated by Mr. Justice Frankfurter in Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 483, 85 L.Ed. 800 (1941):
*496The crux of the business is procedural protection against an improvident state-wide doom by a federal court of a state’s legislative policy.
Through the three-judge district court procedure Congress intended to limit the power of single district judges to enjoin the operation of state laws.4
In Goosby, the single judge’s decision had been to dismiss the complaint, thus not infringing the basic purpose behind section 2281. Its decision was nonetheless reversed.
Here, however, the majority orders a single judge to enjoin the operation of a statute. The law may or may not require that the Tennessee statute not be enforced. The law does require that a three-judge .district court be convened to make that determination. A three-judge . court determination is needed “to allow a more authoritative determination and less opportunity for individual predilection in sensitive and politically emotional areas.” Swift & Co. v. Wickham, 382 U.S. 111, 119, 86 S.Ct. 258, 263, 15 L.Ed.2d 194 (1965). Cf. Potter v. Meier, 458 F.2d 585, 588-89 (8th Cir. 1972). Given the slightest room for argument that prior decisions of the Supreme Court do not foreclose the possibility that the Tennessee statute, or a part thereof, is constitutional, the three-judge district court should have been allowed to determine its validity.5
I have found only a handful of cases where the Supreme Court or a Circuit Court has affirmed or ordered the entry of injunctive relief against the operation of a state law by a single district judge on the ground that the statute lacked even a colorable claim of constitutional validity (the Bailey principle).
The most prominent instance involves state laws mandating racial segregation, in the face of Supreme Court decisions which “foreclosed as a litigable issue” the validity of segregative statutes. Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); City of New Orleans v. Barthe, 376 U.S. 189, 84 S.Ct. 636, 11 L.Ed.2d 602 (1964); Turner v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762 (1962); Evers v. Jackson Municipal Separate School District, 328 F.2d 408 (5th Cir. 1964); Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963); City of New Orleans v. Adams, 321 F.2d 493 (5th Cir. 1963); United States v. City of Jackson, 318 F.2d 1 (5th Cir. 1963); Potts v. Flax, 313 F.2d 284 (5th Cir. 1963); Meredith v. Fair, 305 F.2d 343 (5th Cir.), cert. denied, 371 U.S. 828, 83 S.Ct. 49, 9 L.Ed.2d 66 (1962); Christian v. Jemison, 303 F.2d 52 (5th Cir. 1962).
*497A second use of the Bailey principle occurred in Alabama Civil Liberties Union v. Wallace, 456 F.2d 1069 (5th Cir. 1972), where the Fifth Circuit affirmed an injunction issued by a single district judge against enforcement of ■ a statute requiring Bible reading in the public schools, in explicit contravention of School District of Abington v. Schemp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963).
A third instance involved the reversal of a single judge’s denial of relief from the operation of a statute making it a misdemeanor to print or circulate “any notice . . . that a boycott or ban exists or has existed or is contemplated against any person, firm, corporation, or association of persons doing a lawful business.” The Fifth Circuit found “legion” support for its decision that the statute was overbroad on its face and cited Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940), which had held a nearly identical companion statute unconstitutionally vague. Kirkland v. Wallace, 403 F.2d 413 (5th Cir. 1968). The decision provoked a strong dissent. 403 F.2d at 417—25.
The fourth and only other use of the Bailey principle by a Circuit Court involved an attack on Arizona’s vagrancy statute. The Ninth Circuit held that Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972), which had overturned a nearly identical vagrancy law, governed the case. Anderson v. Nemetz, 474 F.2d 814 (9th Cir. 1973). The Ninth Circuit pointed out that the state defendants conceded that the statute was constitutionally indefensible and were merely contesting standing and abstention issues.
None of these cases, supports the majority. The Bailey principle was meant to be confined to instances where the defense of a statute would raise only “frivolous” or “fictitious” constitutional arguments. Gong v. Kirk, 375 F.2d 728, 729 n. 2 (5th Cir. 1967); Trombetta v. State of Florida, 339 F.Supp. 1359, 1362 (M.D.Fla.1972). Professor Currie, whose article “The Three-Judge District Court in Constitutional Litigation,” 32 U.Chi.L.Rev. 1 (1964), remains the classic work on the subject, warned that “the [Bailey] principle is a violatile one that could easily get out of control.” 6
This Circuit has previously noted the drain placed on judicial resources by the three-judge court statutes. Jones v. Branigin, 433 F.2d 576 (6th Cir. 1970), cert. denied, 401 U.S. 977, 91 S.Ct. 1205, 28 L.Ed.2d 327 (1971). But this Circuit has always followed procedures mandated by Congress. See Protestants, supra; Anderson v. Richardson, 454 F.2d 596 (6th Cir. 1972). The three-judge court procedures sometimes lead to futile procedural remands and to consideration by three judges of issues a single judge can easily decide. See Farley v. Farley, 481 F.2d 1009, 1012 (3d Cir. 1973). The remedy, however, is up to Congress. I would apply section 2281 in its present form and under its current interpretation by the Supreme Court. I would not order the process Congress has mandated for this case to be short-circuited in the manner the majority prescribes.
Because I am in dissent, there is no need to explain in depth my view of the basic issue presented by this appeal — • whether the District Court erred in abstaining from decision on the merits of Appellants’ claims. Simply stated, my position is that the District Court erred in abstaining because no state court construction of state law could avoid ultimate decision of the constitutional issues presented by the Tennessee statute. However narrowly the Tennessee Supreme Court might confine the statute’s reach, its basic thrust must remain. Its central core is review by the Tennessee Textbook Commission to see that biology textbooks carry scientific disclaimers as to any particular theory of creation and evolution and that biology textbooks contain religious accounts of the creation and evolution. Whether the entangle*498ment that must result between government and religion will exceed the permissible degree is a question that must ultimately be faced. See Protestants, 435 F.2d at 630.
Abstention is therefore improper. Harman v. Forssenius, 380 U.S. 528, 534-35, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965); Baggett v. Bullitt, 377 U.S. 360, 375—79, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964). The fact that a state constitutional provision might also decide the case does not warrant abstention, because the state provision here is substantially similar to the federal First Amendment. Carden v. Bland, 199 Tenn. 665, 672, 288 S.W.2d 718 (1956). Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971).
The case on which the District Court relied to justify abstention, Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970), does not apply to this dispute. In Reetz the basic issue concerned management of natural resources, which the Supreme Court stated was “a matter of great state concern.” 397 U.S. at 87, 90 S.Ct. at 790. Furthermore, the Supreme Court held that the Alaskan Constitution, which deals in detail with fishery rights and private interests, might be “the nub of the whole controversy.” 397 U.S. at 87, 90 S.Ct. at 790. Thus, Reetz is a far different case from ours, where the challenged state statute is attacked on essentially one ground— conflict with the constitutional clause guaranteeing freedom of exercise and freedom from establishment of religion.
The District Court should have proceeded to adjudicate Appellants’ claim on the merits.
Were this Court to reverse the abstention order, it could only remand for consideration of the merits of the statute by the three-judge District Court. As the Supreme Court held in Goosby, 409 U.S. at 522 n. 8, 93 S.Ct. 854, 35 L.Ed.2d 36 once it is determined that a claim is properly one for a three-judge court to decide, the jurisdiction of the Court of Appeals ends. We are without jurisdiction to consider the merits of Appellants’ constitutional contentions, and I intimate no view about them.
In summary, I believe that the Supreme Court’s remand order meant only one thing—that this Court should decide the merits of the District Court’s abstention order. The constitutional issues concerning the Tennessee statute are not “frivolous” or “fictitious.” They merit consideration by a three-judge district court, as required by 28 U.S.C. § 2281. The District Court should not have abstained, but should have promptly adjudicated Appellants’ claim. Thus, we should reverse the District Court’s order and remand for consideration of the merits of the Tennessee statute. We have no jurisdiction to decide the constitutional issues ourselves.
. It would have been desirable for the Supreme Court to have explained its action more fully. This appears to be the first instance where the Supreme Court has declined jurisdiction over an appeal of an abstention order of a three-judge district court. The Hutcher-son case involved abstention in part but also concerned other rulings by the district court.
While this opinion was at the printer’s, the Supreme Court held in MTM, Inc. v. Baxley,- U.S. -, 95 S.Ct. 1278, 43 L.Ed.2d 636 (1975), that “a direct appeal Will lie to this Court under § 1253 from the order of a three-judge federal court denying interlocutory or permanent injunctive relief only where such order rests upon resolution of the merits of the constitutional claim presented below.” This holding makes crystal clear that we, rather than the Supreme Court, have jurisdiction to hear the appeal of the three-judge court’s abstention order.
. An abstention order is appealable to this Court under 28 U.S.C. § 1291 (1966). Idlewild Liquor Corp. v. Epstein, 370 U.S. 713, 715 n. 2, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962); Druker v. Sullivan, 458 F.2d 1272, 1274 n. 3 (1st Cir. 1972).
We have jurisdiction over this appeal from a three-judge district court because its order is not appealable directly to the Supreme Court. Section 1291 extends our jurisdiction to all district court appeals “except where a direct review may be had in the Supreme Court.”
. Goosby has caused other circuits to restrict dismissals of complaints by single-judge district courts on the ground that constitutional issues are insubstantial. See, e. g., Roe v. Ingraham, 480 F.2d 102 (2d Cir. 1973) (reversing dismissal of complaint and remanding for three-judge court consideration, citing the “strict test” of Goosby). Contrast the pre-Goosby decision in Johnson v. New York State Education Department, 449 F.2d 871 (2d Cir. 1971) (with strong dissent), vacated, 409 U.S. 75, 93 S.Ct. 259, 34 L.Ed.2d 290 (1972). Likewise, the Third Circuit, whose Goosby decision, 452 F.2d 39 (3d Cir. 1971), was reversed, has recognized that the Supreme Court “has interpreted the requirement for a substantial federal question liberally” since Goosby. Farley v. Farley, 481 F.2d 1009, 1011 (3d Cir. 1973); Rowland v. Tarr, 480 F.2d 545 (3d Cir. 1973).
. For a discussion of the history of the three-judge court statutes, see C. Wright, Federal Courts § 50 (1963); Hutcheson, “A Case for Three Judges,” 47 Harv.L.Rev. 795 (1934).
The resentment which action by single judges had engendered before the enactment of section 2281 is evident in the remarks of Senator Overman of North Carolina during the debates on that section:
“I saw in Moody’s Magazine last week that there are 150 cases of this kind now where one federal judge has tied the hands of the state officers, the governor, and the attorney general. . . . My experience is that the state is sometimes delayed a solid year in collecting taxes. . . Whenever one judge stands up in a State and enjoins the governor and the attorney-general, the people resent it, and public sentiment is stirred, as it was in my State, and you find the people of the State rising up in rebellion.” 45 Cong.Rec. 7256 (1910).
. The majority’s decision leaves substantial doubt as to exactly what parts of the Tennessee statute are unconstitutional. The majority finds that the proviso in section 2 which excepts the Holy Bible from the requirement that accounts of the creation carry disclaimers of scientific accuracy violates the establishment clause of the First Amendment. The statement at the end of section 1 that “the teaching of all occult or satanical beliefs of human origins” need not be included in biology textbooks is found condemned by the “excessive entanglement” principle. With these two items removed from the statute, the majority’s opinion gives no guidance to the single judge who is instructed to grant “preliminary injunc-tive relief in accordance with this opinion.” Whether he is to enjoin operation of the entire statute or to prohibit particular actions based on particular objectionable sections is unclear. This is true despite a severability clause in the Tennessee statute which leaves operable any provision which is not held to be unconstitutional.
. 32 U.Chi.L.Rev. at 66. See also Note, “The Three-Judge District Court: Scope and Procedure under Section 2281,” 77 Harv.L.Rev. 299, 315 (1963).