To avoid bloating this post with the extensive background that led up to where we are now in the litigation about Concordia University Texas, I will simply link to a prior update (CTX Update: When Courts Do Not Know Their Limitations), and the last update (CTX Update: Oral Arguments in the U. S. Circuit Court of Appeals), and let you read those. With that background, we can get straight to the new events.

As you can see from reading those prior posts, appellate briefing was completed, and oral arguments were heard by the U. S. Court of Appeals for the Fifth Circuit on August 15, 2025. Often the next thing we could expect is a decision by the appellate court. Rule 28(j) of the Federal Rules of Appellate Procedure provides, however, that:

(j) Citation of Supplemental Authorities. If pertinent and significant authorities come to a party’s attention after the party’s brief has been filed — or after oral argument but before decision — a party may promptly advise the circuit clerk by letter, with a copy to all other parties, setting forth the citations. The letter must state the reasons for the supplemental citations, referring either to the page of the brief or to a point argued orally. The body of the letter must not exceed 350 words. Any response must be made promptly and must be similarly limited.

On September 11, 2025, CTX, Christian, and Bannwolf filed a letter to the clerk of the appellate court supplying supplemental authority. In this context, the word authority signifies something constituting law, in this instance, a new decision issued by the Fifth Circuit on September 9, 2025 in the case McRaney v. The North American Mission Board of the Southern Baptist Convention, Inc., 2025 U.S. App. LEXIS 23281, 2025 LX 385718, 2025 WL 2602899 (5th Cir. No. 23-60494, 2025).

Under Rule 28(j), the letters to the clerk are expected to be short, no more than 350 words, not full-blown briefs. This lets me set out the letter verbatim here.

Under Fed. R. App. Proc. 28(j) and 5th Cir. R. 28.4, the Concordia Appellees bring to the Court’s attention a new opinion by this Court, McRaney v. The North American Mission Bd. of the Southern Baptist Convention, Inc., No. 23-60494 (Sept. 9, 2025) (“McRaney II”) (filed with this letter), which extensively discusses the church autonomy doctrine.

McRaney II re-stated the long-established principle that the church autonomy doctrine does not bar civil courts from adjudicating “certain disputes over church property” and that “churches cannot avoid civil courts’ jurisdiction” by themselves adjudicating property disputes. Op. 17-18 n.3. This mirrors the Concordia Appellees’ argument that there is no constitutional hands-off rule for federal courts in adjudicating church property disputes. Br. of Appellees 39. McRaney II further explains that “‘the ordinary principles which govern voluntary associations’” apply to church-property-dispute cases. Id. at 32 (quoting Watson v. Jones, 80 U.S. (13 Wall.) 679, 725 (1871)). This buttresses the Concordia Appellees’ position that applying the Texas Unincorporated Nonprofit Association Act here does not violate the church autonomy doctrine. Br. of Appellees 42-48.

McRaney II also explains that federal courts “have no power to resolve questions covered by the church autonomy doctrine,” Op. 24, later explaining that “the church autonomy doctrine reflects an independent limitation on courts sticking their noses in the church door, even when/if asked to do so.” Id. 28 n.6 (emphasis added). As the briefing explains, that is the situation here. It was the church that initiated the request that the federal district “enforce Synod’s internal decision” by confirming it. Br. of Appellees 1, 16. Confirmation of the Synod’s decision requires the Court to do exactly what is prohibited – stick its nose in the church door – therefore the Court lacks power to grant the relief requested in this appeal. Concordia Appellees argue that, in this situation, “closing the federal court doors as required by constitutional limits on federal judicial power does not inhibit the free exercise of religion,” id. 34-35, which is why the district court decided correctly.

On September 16, 2025, Amicus Curiae the Becket Fund for Religious Liberty filed a response to CTX’s letter about supplemental authority. It likewise is short, letting me set it out verbatim.

Concordia misunderstands McRaney.

 First, McRaney rejects the idea that the neutral-principles approach permits “government interference with an internal church decision that affects the faith and mission of the church itself.” Op.37-38, 32-33; Br.29-32; Reply Br.14-15. Noting that the Supreme Court “has never applied the neutral-principles analysis outside of the property-law context,” Op.32, McRaney emphasized that the approach “is not some freestanding exception” to church autonomy that “allows courts to tread on terra sancta in the name of ‘neutrality,’” Op.33. Yet that’s how the district court treated it below, ROA.3313, which requires reversal. Reply Br.14-15.

Second, McRaney confirms that the polity issue presented here—“how to structure a religious institution,” including “the choices religious organizations make about ‘the formation of corporate entities’”—“is itself a religious decision.” Op.39 (quoting Catholic Charities Bureau v. Wisconsin, 605 U.S. 238, 259 (2025) (Thomas, J., concurring)). Courts “cannot revise or question” a “church’s decision[s]” on such matters, but must accept them as “final” and “binding on the civil courts.” Op.32. Yet, again, the district court both questioned and revised LCMS’s polity, requiring reversal. Br.32-33.

Third, McRaney’s logic undermines Concordia’s attempts to “clos[e] the federal court doors” to church autonomy protections through dismissal or waiver. Resp.34-37. Recognizing that Milivojevich “did not order dismissal” but rather exercised jurisdiction to rule for the plaintiff church “on the merits,” McRaney likewise rejected dismissal and affirmed “judgment on the merits.” Op.29, 44 n.13; Reply Br.12-13. Further, McRaney quotes Texas Supreme Court Justice Young’s opinion explaining that forbidding plaintiff churches from raising church autonomy arguments would impermissibly disfavor churches by giving them “fewer rights than everyone else.” Op.29; Reply Br.12; see also Op.26 (indicating churches may affirmatively invoke church autonomy in a “motion for injunctive relief”). Finally, McRaney acknowledged that the Third, Sixth, and Seventh Circuits take “the view that the church autonomy doctrine is unwaivable,” stated that this “view has much to commend it,” and said nothing to support Concordia’s view that churches automatically waive structural autonomy rights by bringing suit. Op.27-28 & n.6; Reply Br.11.

In sum, McRaney’s explanation of church autonomy’s “wide-ranging scope” wholly contradicts Concordia’s positions. Op.11.

So, the parties are making an argument to the Fifth Circuit about what the Fifth Circuit meant in its new McRaney decision. Interesting, no? CTX tells the Fifth Circuit that the Fifth Circuit went south, so to speak, while the Becket Fund tells the Fifth Circuit that the Fifth Circuit went north, so to speak.

One of the holdings of interest is that the church autonomy doctrine applies to all religious organizations regardless of their hierarchical structure, including Baptist organizations. I was concerned earlier about a distinction that could be made between cases involving hierarchical denominations like the Anglican and Episcopal communions, on the one hand, and the Lutheran Church–Missouri Synod on the other hand with its congregational centering and synod as an advisory entity. With McRaney, that distinction might be dissolved, at least within the Fifth Circuit, which could benefit the LCMS.

Also interesting is the fact that in McRaney, the Fifth Circuit cited an LCMS case 35 times for multiple propositions. (Hosanna-Tabor Evangelical Lutheran Church Sch. v. EEOC, 565 U.S. 171 (2012).)

Some readers might wish for a simple upshot of all this. That is not easy to give, but here is one plausible though not necessarily correct scenario. The decision whether to supplement under FRAP 28(j) sometimes is a no-brainer because the new authority is squarely on point and dispositive or nearly so. Other times the decision whether to supplement is a judgment call because, while relevant, the new authority is not so squarely on point, not so clearly dispositive, or even not so clearly favorable to one’s position. The strong response from the Becket Fund makes me think the McRaney authority could be the latter insofar as its bearing on the CTX case. If that is true, then the filing about McRaney could look a little like a desperation move, one arising from a lack of confidence about how briefing and the oral arguments went, and looking for something to bolster CTX’s position. Becket’s response has an undercurrent of, “Thank you for bringing up McRaney, because that is good for us and the LCMS.” But just as I said in my earlier post about the oral arguments, reading tea leaves from oral arguments is a favorite parlor game of attorneys and other court watchers and not always a very good predictor of outcomes, this about the McRaney supplemental authority is in the same category. To find out, we will just have to be patient until the court rules.