Briefs filed in support of Synod

By Cheryl Magness

On Nov. 8, 2022, the Board of Regents (BOR) of Concordia University Texas (CTX), Austin, Texas, voted to amend its governing documents in a bid to remove it from the governance and ecclesiastical supervision of The Lutheran Church—Missouri Synod (LCMS). The CTX board’s action was in direct violation of LCMS Bylaws, which state that a Concordia University System (CUS) institution may not change its own bylaws without the approval of the Synod’s Commission on Constitutional Matters of such changes as consistent with the Synod’s governing documents.

CTX, as an agency of the Synod, is subject — as has always been the case for all agencies — to the Constitution, Bylaws and resolutions of the Synod. These set forth clearly how the Synod’s universities are to be governed: not autonomously, as laws unto themselves, but — in the interest of maintaining unity of doctrine and practice, and in the diversity of gifts truly being for the good of all — as subject to the Synod.

After repeated appeals to CTX to reconsider its action, the LCMS filed a civil complaint against CTX — and several individuals connected to CTX leadership — on Sept. 1, 2023, in federal district court, seeking either the university’s return or damages. The filing came on the heels of the 2023 LCMS convention’s adoption of Resolution 7-03, which called for CTX “to submit to the governance of the Synod as laid out in the Constitution and Bylaws” and encouraged the LCMS Board of Directors to take “all appropriate actions to address this situation.”

The last public communication from the LCMS on the CTX matter was in September 2024 following CTX’s selection of a new president who was not authorized by the LCMS. At that time, in a letter to the CTX board, the CUS Board of Directors again appealed to CTX “to reverse course and undo the damage it has done to itself and the countless faithful individuals and congregations that founded, prayed for, attended and selflessly supported the school over these many years.” That reversal, however, has not happened.

In a recent interview with Reporter, LCMS Chief Administrative Officer Felix Loc reviewed the current state of the case. “It’s important to remember,” Loc said, “that recent developments in the case have focused not on the merits of the case but on jurisdiction.” Federal courts have jurisdiction over cases that feature parties from different states. The LCMS’ filing in 2023 was in federal court because CTX is in Texas and the LCMS is legally incorporated in Missouri.

CTX’s response to the LCMS filing was to try to bypass the LCMS corporation and instead directly litigate against the ecclesiastical Synod itself as an “unincorporated association” that had congregations in Texas. CTX argued that including the Texas congregations meant that federal courts no longer had jurisdiction, requiring the case to go to state courts instead. The LCMS explained that CTX’s argument was directly contrary to the Constitution and Bylaws of the Synod and over 130 years of church governance. But CTX argued that the LCMS was wrong and that the federal court should adopt CTX’s views of how the Synod is run.

On Feb. 3, 2025, a federal judge ruled in favor of CTX, agreeing that the court does not have jurisdiction. The LCMS responded by appealing to the U.S. Court of Appeals for the Fifth Circuit. Christian Preus, chairman of the LCMS Board of Directors, said, “The current jurisdictional issue being presented to the Fifth Circuit is particularly important because it is influenced by the First Amendment rights of The Lutheran Church—Missouri Synod as a church body. This includes specifically whether a secular court can create a new legal entity to carry out the governance of our church body, in direct conflict with how we, for almost 130 years, have operated and established in our governing documents.”

Who runs the church?

In its February 2025 ruling, the federal court claimed a definition of “Synod,” for legal purposes, that is at odds with the definition held by the LCMS itself. The court’s decision was based on its own interpretation of the Synod’s internal governing documents. The appeal of the February decision will determine if the church — not civil courts — has the final say in how the church structures its ministry.

In an affidavit filed in the case, LCMS Secretary Rev. Dr. John Sias responded to CTX’s claim that there are two versions of “Synod” that have standing in the legal proceeding. Sias’ affidavit states that CTX created a “fictitious” version of the LCMS that “appears to be CTX’s attempt at recasting and transforming the ecclesiastical denomination named The Lutheran Church—Missouri Synod … into a separate civil law entity, alongside the actual civil law entity the Synod has definitively established for itself in LCMS, Inc.”

Sias noted that the LCMS “does not exist as a separate civil entity from LCMS, Inc.” While the Synod as a church body consists of rostered workers and congregations that carry out their work in many states, they are represented by “a single civil law entity called The Lutheran Church—Missouri Synod, … which was incorporated in the State of Missouri more than 125 years ago as a civil law reflection of its ecclesiastical denomination. … Contrary to CTX’s allegations, the Synod is not and has not been, at any relevant time, an unincorporated association of Lutheran congregations under civil law.”

Sias’ affidavit continues in some detail, citing the history of the LCMS and drawing on the Synod’s Constitution and Bylaws to outline that there are not two “Synods” but one, and that it is legally represented by its corporation based in Missouri.

In the weeks since the LCMS filed its appeal, numerous organizations have filed statements, called friend-of-the-court briefs, in support of the LCMS. As of this writing, seven church-affiliated organizations filed friend-of-the-court briefs in support of the LCMS, including the National Association of Evangelicals, the Anglican Church in North America and the Texas Catholic Conference of Bishops. The friend-of-the-court briefs point out that this kind of judicial disregard of settled church law and internal governance can negatively impact religious organizations across the country. The State of Missouri has also filed a friend-of-the-court brief, citing concerns about religious freedom and the right of a church to run itself according to the law of the state in which it is incorporated, without outside interference by other states.

As the legal process continues to play out, the Rev. Dr. Matthew C. Harrison, LCMS president, said that the process, while unfortunate, is necessary for the church:

“Although it is a shame the church has to go to the law to defend the congregations’ governance of their university, the Board of Directors must, for the common good, responsibly defend the Synod’s ability to govern itself and its institutions as the congregations have determined. It does so while continuing to pray for restoration and reconciliation.”

Becket, a non-profit, public-interest legal and educational institute “with a mission to protect the free expression of all faiths,” has taken up the LCMS’ case. Find out more at becketfund.org/case/lcms-v-concordia.

Posted May 27, 2025