To avoid bloating this post with the background that led up to where we are now in the litigation about Concordia University Texas, I will simply link to the last update and let you read that (CTX Update: When Courts Do Not Know Their Limitations). With that background, we can get straight to the new events.
That last update was published on May 8, 2025. On June 5, 2025 the appellate court, which is the United States Court of Appeals for the Fifth Circuit, granted a motion by The LCMS to expedite the appeal. An expeditious written briefing schedule was established and a tentative date for oral arguments to be made after the completion of all written briefs was set.
The PACER (Public Access to Court Electronic Records) docket for the case shows that briefing was pursued apace with the expedited schedule. The LCMS, CTX, Christian, Bannwolf, and numerous friends of The LCMS filed briefs. Oral arguments were heard on schedule on August 4, 2025 by a three-judge panel drawn from the judges of the Fifth Circuit. They were the Honorable Judges Elrod, Jones, and Graves.
There are several ways you can listen to an audio recording of the oral arguments. One is the official court website at this link. I have had trouble accessing that page sometimes, so I also provide you an alternative official source, the court’s offical YouTube channel, at this link. There you will find recent arguments in reverse chronological order and can find Lutheran Church v. Christian, August 4, 2025, and the direct link to this argument is here.
It is evident to me that the briefing by The LCMS and its many friends has been effective in clarifying the issues and the positions of the parties. This is reflected in the questions the judges asked attorneys for both sides.
It also encouraged me to hear Resolution 7-03 of the synod in convention mentioned by The LCMS’ attorney. The the synod in convention is the highest authority in the Missouri Synod, and that resolution of the convention shows its interpretation of the governance structure of our church as it applies specifically to the litigation with CTX. Combine that with the law which says that the courts must accept the church’s own understanding of its governance structure and is not permitted to substitute their own interpretation by their own reading of our constitution and bylaws, and the resolution should have significant weight. I have said previously this was an unexploited argument, but it has now been exploited in the oral arguments, albeit in extreme brevity and without as much emphasis as I would have liked to hear. But the same law also applies to the declaration of Rev. Secretary John W. Sias informing the court of our church’s understanding of our chosen governance structure, and a very great deal of emphasis has been placed on that. These are not only matters of law about governance structure, but they are matters of religious liberty under the First Amendment because there are religious doctrinal reasons why our church chose its governance structure, so for the courts to alter that is to invade our religious liberty. That is why the Board of Directors of The LCMS really had to appeal the federal district court’s decision, because the district court did invade our religious liberty in just that fashion.
It is a favorite parlor game of attorneys to try to read tea leaves in how oral arguments seem to have gone to predict where the issue is going. I am no better than most attorneys at trying to resist doing that and also no better than other attorneys at accomplishing it. I sure hope I am not raising false or overly rosy expectations, but my impression is that the court did get clearly what the issues are, what the arguments are, and what the prior precedents are, so that if the court goes wrong, it will be entirely on the court. It will not be on the attorneys for The LCMS or our friends because of any deficiency in how they presented our case. There is no deficiency other than the late and faint use of Resolution 7-03, which I hope will not be fatal. Aside from that, our attorneys and the attorneys for our friends have done what they needed to do, and now the court needs to do likewise.
Passing on from the jurisdictional question, which is all this appeal is about, to the merits that eventually will be decided in either federal or state court depending on the outcome of this appeal, there were some interesting sections in the oral arguments. One of the judges asked the attorney for CTX, Christian, and Bannwolf whether, once the case reaches the merits, they don’t have to run the table on all the multiple claims, because if they lose any of them, they lose substantially. She asked, when you get to the merits, “what is your path to victory?” That, I believe, should have been a sobering moment for CTX, Christian, and Bannwolf.
