concurring in part and dissenting in part:
I concur in the majority’s dispositions of all plaintiffs’ claims except those identified as the fourth, fifth, and sixth claims raised by Ms. O’Hair, and the portions of her final claim for damages which arise from those claims as to which I disagree.
In Craig v. State, 480 S.W.2d 680 (Tex.Cr. App.1972), the Texas Court of Criminal Appeals held jurors were not required to acknowledge the existence of a Supreme Being. The court in Craig did not explain the function of or indeed even mention Article 1, Section 4. It did assert that the Texas Constitution contained no requirement such as the Maryland constitutional provision condemned in Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (1965), which read in pertinent part: “... nor shall any person, otherwise competent, be deemed incompetent as a witness, or juror, on account of his religious belief; provided, he believes in the existence of God .... ” The only reasonable interpretation of Craig [which was followed in Cobb v. State, 503 S.W.2d 249 (Tex.Cr.App.1973), without reasoning] is that jurors serving the State of Texas hold no “office.” Again without discussing Article 1, Section 4, this court affirmed the refusal of a writ of habeas corpus based on a holding that exhaustion was required on a claim that atheists were excluded from grand and petit jury service by the statutory requirement of an oath which invoked God’s help. Madeley v. Kern, 488 F.2d 865 (5th Cir. 1974). Because of this possible ambiguity, I concur in the majority’s abstention on this claim.
A judge is an officer of the state in every sense of the term. Not even the broadest sweep of these juror decisions could convince me that a Texas court could say that the Texas Constitution’s explicit exclusion of atheists from holding “office” does not cover judges. Therefore, I see no possibility that article 1, section 4 could be interpreted so as to moot or substantially change this constitutional question for O’Hair’s case today. The majority asserts courts of Texas have not yet held that article 1, section 29 really preserves “inviolate” the command of article 1, section 4. Based on this assertion they see a remedy at law in the courts of Texas which warrants dismissal of her claims in this court. With deference, I cannot follow this reasoning. O’Hair asserts the courts of Texas are staffed with judicial officers who were chosen unconstitutionally. To say that she has an adequate legal remedy to redress this claim by going to the very system she seeks to have condemned seems illogical to me. Consequently, I would hold Pullman abstention as to article 1, sections 4 and 29 is inappropriate, Chancery Clerk of Chickasaw County, Mississippi v. Wallace, 646 F.2d 151 at 154 (5th Cir. 1981), and that O’Hair has no adequate remedy at law in the courts of Texas.
This brings me face-to-face with the issue of whether O’Hair presents a valid constitutional challenge to the trials described in claim four because they are before a judge or judges selected from a group which excludes atheists. My position that she can does not say that she is entitled to have an atheist try her cases. Clearly, she is not. I maintain no more than that due process and equal protection mandate her entitlement *314to have officials who exercise this intimate control over her affairs and effects chosen from a group which has no ordained religious bias. The same constitutional right that guarantees a black the right not to be tried by a judge who had to be chosen from an all-white group is operative here.
The same reasoning applies to the fifth claim in which O’Hair seeks injunctive relief against her criminal prosecution on the same ground — that her judge was chosen from a group which excludes atheists. I agree with the majority that the Society lacks standing to advance either the fourth or fifth claims.
The sixth claim seeks declaratory relief parallel to the injunctive relief sought in claims four and five. The majority rejects the claim in the name of consistency. The same consistency means I must dissent from that ruling on claim six since I reach the opposite result on claims four and five. Consistency also requires my dissent from so much of O’Hair’s claims for damages as relate to O’Hair’s fourth, fifth and sixth discussed above.