This essay will report on today’s decision by the United States Court of Appeals for the Fifth Circuit about federal court jurisdiction over the case brought the LCMS, Inc. against Concordia University Texas (CTX), and others. For those who are not familiar with this litigation, I have written many prior essays, and perhaps the single essay best suited as a background to the motion to dismiss is  CTX Update: When Courts Do Not Know Their Limitations – T. R. Halvorson. Letting that suffice to provide background, let’s turn to today’s developments.

When lawyers involved in important litigation receive a decision from a court, they are tempted to scroll to the bottom to see whether the court affirmed or reversed rather than reading straight through from the top. Then with that suspense resolved, we go back to the top and start from there. We try to resist that temptation, with varying results.

Though I am not directly involved in the litigation between LCMS, Inc. and CTX, it is litigation very important to me about which I have written many essays, so when the decision of the Fifth Circuit was issued today, I expected to feel the temptation strongly.

To my surprise, the temptation was not great, because unlike many opinions where the introductory material gives away very little about where the opinion is going, in this one, the direction was immediately clear: the lower court was headed for a smack down and its faulty decision was to be reversed “no-duh.”

Refreshingly, the opinion starts by quoting 1 Corinthians 6:1. In short order the clues rolled in. When you read the first quotation below, note the words:

• Unfortunately
• Necessary
• Forced

Yeah, these were sympathetic to LCMS, Inc. and not good omens for CTX, Christian, Bannwolf, the CTX majority regents, or architect and provost turned imposter president, Kristi K. Kirk. Then, equally refreshingly, the court grounded what it was about to say on the Lutheran doctrine of two kingdoms. It did that because the appellate court recognized, unlike the lower court, that the church has a right to define its polity and self-understanding in this country under the First Amendment. See for yourself how this started out.

In his first Epistle to the Corinthians, the Apostle Paul cautions believers against taking their disputes to the secular courts. 1 Corinthians 6:1. Unfortunately, litigation within a church is sometimes unavoidable. In such cases, however, the courts of this country are infused with a history of religious tolerance and are guided more specifically by the First Amendment to interfere as little as possible in the affairs that constitute governance of ecclesiastical bodies. See Our Lady of Guadalupe Sch. v. Morrissey-Berru, 591 U.S. 732, 746, 140 S. Ct. 2049, 2060 (2020); McRaney v. N. Am. Mission Bd. of the S. Baptist Convention, Inc., 157 F.4th 627, 633–34 (5th Cir. 2025).

The Lutheran Church—Missouri Synod, a Missouri nonprofit corporation, was forced to seek judicial restoration of control over Concordia University, an “agency” of the church in Austin, Texas. Taking advantage of the church’s unique governance structure, the University responded by asserting lack of diversity of citizenship. The district court agreed. It reached this result only by overlaying a secular corporate law interpretation on the church’s spiritually crafted governance documents, and then imposing Texas unincorporated association law on the Lutheran Church, whose special status has been recognized by Missouri law for more than a hundred years. The district court’s ruling quintessentially violated the church autonomy doctrine. The judgment of dismissal is REVERSED and REMANDED.

Here are some standout elements of those first two paragraphs.

First, the Missouri Synod’s governance structure is unique, and the Fifth Circuit paid enough attention to understand it. The lower court did not.

Second, the lower court (the district court) reached its erroneous result by imposing secular corporate law onto the church’s “spiritually crafted” governance documents. In a free country with religious liberty, that is on the extreme end of bad.

Third, based on that bad superimposition of secular law that essentially disallowed the synod from having its own religiously crafted governance, it imposed a hallucinogenic status as an “unincorporated association” onto the synod so that it could say the synod was a citizen of Texas despite the synod’s intentional and religious decisions:

• to be a corporation, and
• to be a Missouri corporation.

It did that to make LCMS, Inc. a citizen of Texas. The defendants are citizens of Texas, so if the plaintiff is a citizen of Texas too, that would mean their state citizenships were not diverse. Diversity would require that all plaintiffs be citizens of a different state than any of the defendants.  Having erroneously dispatched the diversity of citizenship, the lower court denied federal jurisdiction over the case for which, in this instance, diversity of citizenship is required.

Fourth, the lower court’s error was not merely an error. It “quintessentially violated” the church’s religious liberty. In other words, within the judiciary and legal profession this is way off in “don’t let this be you” territory. The lower court’s error was shamefully incompetent. It is striking because the federal district judge has a very solid reputation, but if all we had to go by was this case, we could be forgiven for thinking he got his law license out of a Cracker Jack box.

With the Fifth Circuit having found all this to be erroneous, that means there is diversity of citizenship, and therefore the federal courts do have jurisdiction. What is being reversed is the lower court’s dismissal from federal court on the theory that the federal courts have no jurisdiction because there is no diversity of citizenship between the plaintiffs and the defendants.

As we proceed through the rest of the opinion, things never get any brighter for the lower court or the defendants until we come to the dissent, in which one justice of the Fifth Circuit would have affirmed.

In the balance of the majority opinion, Circuit Judge Edith H. Jones delineates in a way that must be painful for the lower court and the defendants to read how they mucked up the church autonomy doctrine of American law, the law of who is a real party in interest, and the law of diversity of citizenship federal jurisdiction. I will let you read that yourself in the full opinion posted along with this blog post.

There is a concurring opinion. From case to case there can be a variety of reasons for concurring opinions. In this case Chief Judge Jennifer Walker Elrod said she agreed with much of the majority opinion, but thought it could have been simpler. She says:

I agree with much of Judge Jones’s reasoning. However, I believe that this is a straightforward case that can be decided by relying upon the Church’s corporate documents and declarations. The district court opinion focuses on one subsection of the Lutheran Church–Missouri Synod’s Policy Manual to arrive at a conclusion that conflicts with both the best reading of the Church’s corporate documents as well as the Church’s own understanding of its structure. This was error. When considering the documents together and in context, it is clear that the LCMS is the real party to the controversy for purposes of diversity jurisdiction.

Why would that be simpler? Because that only required the lower court and CTX to understand ordinary secular corporation law. According to the Chief Judge, this case never even required resort to deep levels of the First Amendment, the church autonomy doctrine, and such.

The district court opinion applies Texas law and relies on an application of Texas corporate law to arrive at the determination that the Synod was an unincorporated association with the capacity to sue or be sued in Texas. But in doing so, the district court opinion does not adhere to a key tenet of corporate law. An entity’s documents, such as articles and bylaws, should be harmonized and construed as a whole with the objective of capturing the documents’ “general intent.”

As the Texan George W. Bush would say, “That ain’t rocket surgery.” In case you think this assessment is too harsh, the Chief Judge goes on:

To be sure, the district court opinion states that it reviewed the Church’s constitution, bylaws, and LCMS Board of Director’s Policy Manual. But its review of these documents does not appear to have been accompanied by an application of the principles of corporate law discussed here. As such, the district court opinion errs on its own terms when it sought to resolve this case on corporate law grounds. In my view, this is enough to warrant reversal.

Even on their own theory, the lower court and CTX were wrong, and simple secular corporation law was enough to warrant reversal.

There is a lesson in this also for the naysayers in our Synod, those who have condemned the Board of Directors, the Synod President and others first, for conducting this litigation and second, for pressing federal jurisdiction. This opinion preaches. It starts right where it should, with Scripture, as should we. It proceeds next to Lutheran theology, the doctrine of the two kingdoms, as should we. It got both Scripture and Lutheran theology right. With those straight, then it got our governance documents right. It got our freely and deliberately chosen polity right. Then, it got the issue of diversity of citizenship and federal jurisdiction right. Maybe some who have been criticizing synod leadership could hear Scripture and Lutheran doctrine in this secular jurisprudential homily.

Let’s remember that morally, this case is about rebellion and theft, as the last synod convention rightly determined in  Resolution 7-03, “To Call Concordia University Texas Leadership to Repentance,” Today’s Business, First Edition, 68th Regular Convention, pp. 139-141:

Resolved, That the Synod in convention affirm CCM Op. 23-3006 in its entirety; and be it further

Resolved, That the Synod in convention affirmatively conclude that the CTX BOR members who voted in favor of the April 4, 2023 action that affirmed the CTX BOR’s purported separation have acted in direct conflict with the Constitution and Bylaws, as well as CCM Op. 23-3006; and be it further

Resolved, That the Synod in convention affirmatively conclude that the CTX president and those CTX administrators who have advocated for and supported the purported separation have acted in direct conflict with the Constitution and Bylaws; and be it further

Resolved, That the Synod in convention encourage the appropriate ecclesiastical supervisors to investigate and to determine any appropriate disciplinary action that should be taken against the CTX president and any member of the CTX BOR who is a rostered church worker; and be it further

Resolved, That the Synod in convention encourage the President of the Synod, LCMS BOD, the CUS and its board, and the appropriate district presidents to take all appropriate actions to address this situation; and be it further

Resolved, That the Synod in convention call upon the CTX president, those CTX administrators who have advocated for and supported the purported separation, and the CTX BOR to submit to the governance of the Synod as laid out in the Constitution and Bylaws; and be it further

Resolved, That the Synod in convention call upon the CTX president, those CTX administrators who have advocated for and supported the purported separation, and the CTX BOR to repent for having broken the Fourth, Seventh, Ninth, and Tenth Commandments, and to apologize publicly for the illegitimate and wrongful purported separation; and be it finally

Resolved, That the President of Synod stand prepared to grant holy absolution to those who repent and want to do better by rescinding their actions resulting in reconciliation and restoration.

The naysayers and critics of synod leadershp could bear in mind that synod leadership is carrying out as stewards what the synod in convention commanded.