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 couple of prior updates (CTX Update: When Courts Do Not Know Their Limitations and 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.

Under that rule, in September 2025 a couple such letters of supplemental authorities were filed. You can read about those in my prior post, CTX Update: After Briefing and Oral Arguments, Supplemental Authority Filed.

On January 22 and 26, 2026, three new such letters of supplemental authorities were filed, as follows:

1. By the Becket Religious Fund for Religious Liberty, an ally of the LCMS in this case, about the new case of Union Gospel Mission of Yakima v. Brown, a decision of the U. S. Court of Appeals for the Ninth Circuit on January 6, 2026.
2. By CTX, Christian, and Bannwolf also about Union Gospel.
3. By CTX, Christian, and Bannwolf about the new case of Rx Solutions, Inc. v. Caremark, L.L.C., a decision by the U. S. Court of Appeals for the Fifth Circuit on January 14, 2026.

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

First Letter, Becket Fund re Union Gospel:

Union Gospel demonstrates that the First Amendment’s church autonomy doctrine can be raised by religious plaintiffs as a claim, that it can be the basis for types of relief other than dismissal, and that it is not subject to a broad “neutral principles” exception. It thus rebuts Concordia’s contention that “closing the federal court doors” to LCMS somehow “does not inhibit” church autonomy. Resp.34-35.

In Union Gospel, a religious group challenged Washington’s regulation of the group’s religious employment decisions, claiming it violated the church autonomy doctrine. 2026 WL 32636, at *2-4. Washington argued that, if a case can “be decided under neutral and generally applicable legal principles,” church autonomy is not offended. Opening Br. at 40, Union Gospel, 2024 WL 6468614. The Ninth Circuit ruled for the religious group, agreeing that the church autonomy doctrine “forbids” governmental second-guessing of “an internal church decision that affects the faith and mission of the church itself.” Union Gospel, 2026 WL 32636, at *12. The court then affirmed a preliminary injunction protecting the group’s “internal management decisions” regarding religious hiring practices, since they reflected a key “way [this] religious community defines itself.” Id. at *8-9 (quotation marks omitted).

Union Gospel is instructive here. First, it shows that plaintiff religious organizations may invoke the protections of church autonomy even when they initiate suit. Contra Resp.35; cf. Reply Br.10-13. Second, it illustrates that the relief available under the church autonomy doctrine is not limited to dismissal. Contra Resp.36; cf. Reply Br.12. And third, it exemplifies the point that a religious group cannot be “forced to disregard or alter its religious mission to satisfy secular law” on matters that fall within church autonomy’s protections, Union Gospel, 2026 WL 32636, at *9, even where a defendant frames the compulsion as being required by neutral principles of law. Contra Resp.38-41; cf. Br.29-32; Reply Br.14- 15. Rather, as in Union Gospel, the way that the LCMS’s religious community has chosen to define its polity is an internal church decision intertwined with the faith and mission of the Church and is thus entitled to First Amendment protection.

Second Letter, CTX, Bannwolf, and Christian re Union Gospel:

Union Gospel adds nothing to this case. It involved a religious ministry’s pre-enforcement declaratory judgment action against state officials to invalidate a state statute—interpreted to apply to religious organizations’ hiring of non-ministerial employees—on the ground that the church autonomy doctrine barred its application to Union Gospel’s hiring decisions. Slip op. 9. The only issue was whether the church autonomy doctrine protects church hiring policies favoring co-religionists for non-ministerial positions, id., an issue not present here.

Union Gospel’s pre-enforcement declaratory judgment action challenging a state statute under the church autonomy doctrine was defensive, using the doctrine as a shield against future government intrusion into church hiring. Here, in contrast, LCMS seeks to use the church autonomy doctrine offensively in a private dispute, as a sword to obtain a federal court ruling “confirming” an internal decision by the church’s highest ecclesiastical body about a private property dispute. ROA.1255 (¶50). The two types of legal claims are fundamentally different, and concluding that Union Gospel’s claim could be brought in federal court offers no guidance on whether LCMS’s can. Union Gospel filed its federal claim using the church autonomy doctrine to avoid threat of enforcement, whereas LCMS filed its federal claim using the church autonomy doctrine to enforce an ecclesiastical decision. Federal courts do not have jurisdiction to hear what amounts to an appeal of an ecclesiastical decision, Watson v. Jones, 80 U.S. 679, 728 (1872), a rule fitting this case but not Union Gospel.

LCMS’s argument that Union Gospel rejects Concordia Appellees’ waiver argument is unsupported by the Union Gospel opinion and contradicts this Court’s recent decision in McRaney II, 157 F.4th at 644-45 (church autonomy doctrine “analogous to the jurisdictional doctrine of state sovereign immunity,” and “state sovereign immunity is waivable”). McRaney II, not Union Gospel, fits Concordia Appellees’ waiver argument.

LCMS likewise errs in characterizing Union Gospel as rejecting any “neutral principles exception.” It does nothing of the sort, whereas McRaney II expressly acknowledges its applicability in property disputes of the sort here. 157 F.4th at 640 n.3.

Third Letter, CTX,, Bannwolf, and Christian re Rx Solutions:

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, Rx Solutions, Inc. v. Caremark, L.L.C., 2026 WL 100806, No. 25-60084 (5th Cir. Jan. 14, 2026) (slip opinion filed with this letter).

In Rx Solutions, the Court rejects the argument by the appellees in that case that their answer to an original complaint that had been superseded by an amended complaint should not be considered for determination of jurisdiction. Rather, holds the Court, a superseded pleading may be considered “an evidentiary admission.” Slip Op. 12, 2026 WL 100806 at *6.

LCMS’s later-amended original complaint averred that the legal claims in this case are “by and on behalf of the Synod.” ROA.35 n.10 (emphasis added). The Concordia Appellees argue that “diversity must be determined by Synod’s citizenship because it is the real party in interest and the real party in controversy.” Concordia Appellees Br. 25. They cite LCMS’s admission in its original complaint that the lawsuit is by and on behalf of the Synod as evidentiary support for the argument. Id. 16 n.8. LCMS argued in reply that its original complaint does not perform “any function” in the case. LCMS Reply Br. 2.

Rx Solutions settles the disputed question of how to treat LCMS’s admission in its original answer in favor of the Concordia Appellees. The admission is evidentiary support for the determination below that the district court did not have jurisdiction over LCMS’s lawsuit because there is a lack of complete diversity due to the fact that, as LCMS itself alleged when filing the lawsuit, it was brought “by and on behalf of the Synod.”

So, as to the new Union Gospel decision, was ist das?

First, CTX has argued that the church autonomy doctrine only protects a religious organization when it is defending a suit, not when it initiates a suit. Union Gospel indeed, as the Becket Fund says, shows the contrary. This matters because The LCMS initiated this lawsuit, so is it protected by the church autonomy doctrine or not? CTX would like The LCMS not to be protected by it, because that would give it a greater prospect of getting away with its moral rebellion and theft of the university contrary to the Fourth, Seventh, Ninth, and Tenth Commandments

Second, if the church autonomy doctrine only applied in cases where the religious organization is on the defense, where the relief it wants is dismissal of the suit against it, that could be seen as limiting the relief available under the church autonomy doctrine to dismissal. But the Becket Fund argues that Union Gospel shows this is not the case. Other remedies could be granted in the context of the religious organization being the initiator of the suit. This matters because the reliefs The LCMS seeks are such things as declaration that amendments to CTX’s corporate documents are void or voidable, damages, and the like. None of those is dismissal, so it is important whether the relief available to The LCMS is limited to dismissal, which would be a useless relief here because it would be dismissal of The LCMS’ suit.

Third, Union Gospel shows a substantial limitation on the doctrine of deciding cases involving religious organizations on the basis of secular law when the principles of that law are neutral with regard to religion. The Becket Fund argues that Union Gospel helps show that in this case the purely secular law would not be neutral because the decision by the synod to be a corporation, and to be a Missouri corporation, that is, a decision about its polity, is an inherently religious decision that must be protected by the First Amendment and the church autonomy doctrine. This matters because, insofar as the diversity of citizenship appeal to the Fifth Circuit, that’s the issue: Must the court recognize that synod is a Missouri corporation and not an unincorporated association. Must the court recognize that the synod is a citizen of Missouri and not a citizen of Texas. The jurisdiction of the federal courts depends on which it is, so this matter is not peripheral to this appeal.

CTX says Union Gospel does not matter because it was about a church hiring matter and the case presently on appeal is not. Maybe that is going to make a difference, but it sounds like hair splitting to me. The decisions of different religious organizations in different cases do not have to be about the same matter to be protected by the church autonomy doctrine. They just need to be religious, even if on different religious matters. In Union Gospel, the hiring decision was religious, so it is protected. In the present appeal, if the decision to be a Missouri corporation is religious, the fact that it is not about hiring is beside the point. CTX is attempting to deflect from the issue whether the decision to be a Missouri corporation is religious.

The other parts of CTX’s argument about Union Gospel depend on what the parties have already said in briefing and oral argument about Watson v. Jones and McRaney II. My hunch is that the briefs and oral argument, not this letter, is where those Watson and McRaney points will be decided by the court.

The Rx Solutions Argument

In the third letter, CTX gets pretty far down into the weeds. Let me see if I can make this simple enough.

There is some inside baseball about what happens when pleadings in a case are amended. What is the ongoing status, if any, of the earlier pleading that now has been amended. Sometimes there are some continuing effects. Sometimes, while the earlier pleading is no longer the pleading because it has been replaced by the amendment, nevertheless some of what was said in the earlier pleading is an evidentiary admission to certain facts.

In this case, CTX answered the complaint with the new and novel theory that the synod is an unincorporated association. Who knew? Should The LCMS have had to anticipate such innovative invention and plead against that in is opening pleading? I should think not, but I am not the court. We shall see.

CTX is trying to use the Rx Solutions case to say that because The LCMS did not add to its pleadings against the theory of unincorporated association until after that strange new idea had been stated by CTX, now and forever in this suit The LCMS is stuck with only its earlier pleading and does not benefit from its amendment. That seems fundamentally unfair to me and frankly, almost childish. It is like saying, “I get to make up stuff, and you don’t get to answer it. You are stuck with only what you said before I made stuff up.” But again, I am not the court. We will have to wait to see if that sells.