In a "special concurrence", Judge Moss was unusually critical of the Supreme Court. He wrote:
The Supreme Court cannot continue to speak out of both sides of its mouth if it intends to provide real guidance to federal courts.... [I]t cannot continue to hold expressly that the injury in fact requirement is no different for Establishment Clause cases, while it implicitly assumes standing in cases where the alleged injury, in a non-Establishment Clause case, would not get the plaintiff into the courthouse. This double standard must be corrected because ... it opens the courts' doors to a group of plaintiffs who have no complaint other than they dislike any government reference to God.Dissenters, in two separate opinions, argued that the trial court's pre-trial order makes clear that plaintiffs' attendance at board meetings was not a contested issue and that defendants impliedly admitted those facts. 2theadvocate reports on the decision. The splintered 3-judge panel decision in the case was discussed in a previous posting. [Thanks to Alliance Alert for the lead.]