Introduction
On June 4, 2026, the U. S. Court of Appeals for the Fifth Circuit published its decision about federal jurisdiction of the lawsuit by The Lutheran Church—Missouri Synod against Concordia University Texas (CTX), Donald Christian, and Christian Bannwolf. I wrote about that in the essay, CTX: A Refreshing Decision from the 5th Circuit Court of Appeals.
Concordia now petitions for panel rehearing. A copy of the petition is available at this link.
What the Petition Argues
This kind of petition for rehearing is not supposed to simply reargue points already decided. With that rule in mind, CTX makes three requests, each directed at what it characterizes as a gap or tension the panel’s reasoning.
I. The waiver issue should be decided now
CTX says that after holding that the church autonomy doctrine applies, the majority opinion noted CTX’s argument that LCMS had waived any church autonomy defense by choosing to sue in federal court on diversity grounds, then declined to resolve the question of waiver.
CTX argues this was a mistake that should be corrected on rehearing. It says the church autonomy rationale rests on the premise that the doctrine applies. If the doctrine was waived, that foundation collapses regardless of how sound the rest of the analysis is. Because waiver is potentially outcome-determinative, the petition contends, it cannot properly be left unaddressed.
II. The relegation of the property dispute to secondary status
CTX challenges the majority opinion’s characterization of the case as principally about church governance, with the property dispute being secondary. CTX says it knows of no legal authority that sorts a case that includes a property dispute into primary and secondary components, or that divides such a case into sequential phases, one for governance and one for property.
CTX argues that property is front and center. It notes that LCMS itself alleges that CTX is trying to walk away with a historic property, described its own assigned role in terms of property and civil functions, and made property the subject of the first count of its complaint. The petition asks, at minimum, for guidance on when the property phase will arrive.
III. Whether the Church’s documents show the Synod separately owns property
CTX takes aim at a specific factual conclusion in the concurring opinion where Chief Judge Elrod said the Church’s corporate documents repeatedly state that the Synod as distinct from LCMS, the Missouri corporation, owns no property. CTX says the opposite is true. It quotes the Synod’s bylaw defining “Property of the Synod” to include assets titled or held in the name of the corporate arm or an agency, and a 2004 convention resolution asserting that the Synod owns the properties of all its agencies, including its universities, regardless of how title is held, with the institutions holding title subject to a reversionary interest in the Synod’s favor.
CTX also revisits the Policy Manual. Where the concurrence faulted the district court for giving dispositive weight to one isolated provision, CTX responds that another provision draws the very same distinction between “Synod” and “Corporate Synod,” requiring board approval to file suit on behalf of either, and argues that this deliberate, repeated distinction is not a drafting accident. It adds that Missouri law has long recognized that religious organizations retain a separate existence even after forming nonprofit corporations, and cites Justice Thomas’ recent concurrence for the proposition that a religious institution is not defined by the corporate entities it chooses to form. Taken together, CTX argues, the documents show the Synod and LCMS are not the same and that the Synod is the real party in interest.
We await the filing of a response by LCMS.
