Southern Methodist University and Paul J. Ward v. South Central Jurisdictional Conference of the United Methodist Church and Bishop Scott Jones

Supreme Court of Texas

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No. 23-0703

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Southern Methodist University and Paul J. Ward,

Petitioners,

v.

South Central Jurisdictional Conference of the United Methodist

Church and Bishop Scott Jones,

Respondents

═══════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Fifth District of Texas

═══════════════════════════════════════

JUSTICE YOUNG, joined by Justice Devine and Justice Sullivan in

full, and by Chief Justice Blacklock as to Parts I, III, and IV, concurring.

The Court gets today’s case right. SMU’s articles of incorporation

clearly state that SMU is “to be forever owned, maintained and controlled

by the South Central Jurisdictional Conference of The United Methodist

Church,” whose predecessor created SMU as part of its religious mission.

Among the forms of “control[]” that the articles expressly reserve to the

Conference is that “[n]o amendment to these Articles of Incorporation

shall ever be made” unless the Conference “affirmatively authorize[s] and

approve[s]” the amendment.

But in 2019, SMU attempted to amend those articles of

incorporation without the Conference’s consent. They were not just any

old amendments, either. Instead, they purported to eliminate all the

Conference’s authority and indeed all reference to the Conference. SMU

sought to do to the Conference what Pharaoh (according to Cecil B.

DeMille, at least) sought to do to Moses: “Let the name of Moses be

stricken from every book and tablet, stricken from all pylons and obelisks,

stricken from every monument of Egypt.” The Ten Commandments

(Paramount Pictures 1956).

The Court holds today that Texas law allows the Conference—and

any religious organization that creates a corporation to achieve its

mission—to protect its rights and petition a Texas court to determine

whether the corporation’s articles of incorporation were lawfully

amended. And if they were not, the result will be to restore a religious

organization’s authority and autonomy.

Multiple paths lead to today’s judgment. The clearest and most

basic, as the Court describes, is found in § 22.207 of the Business

Organizations Code. That statute’s text focuses exclusively on religious

organizations’ authority to control nonprofit corporations—the exact

circumstance of this case. The statute does very little, if anything, if it

does not manifest authority for religious organizations to defend that

control even in the face of more generic statutory rules, such as the general

limitation on lawsuits in § 20.002 of the Business Organizations Code.

Beyond its correctness as a matter of pure statutory interpretation,

the Court’s approach prevents us from having to formally address a

different path to the same outcome: the church-autonomy doctrine. It is

always preferable to resolve a case on nonconstitutional grounds when

2

possible. But that constitutional doctrine still looms over the dispute, in

part because § 22.207 codifies some of its principles. I therefore gladly

join the Court’s opinion but write separately for three distinct reasons.

First, as the Court observes, its reading of § 22.207 would flow from

the doctrine of constitutional avoidance even if there were doubt about

whether § 22.207 authorizes declaratory-judgment actions. Ante at 18.

In fact, even absent § 22.207, this Court may have read § 20.002 in favor

of religious autonomy; with § 22.207, we face no such difficult choice.

Through that provision, the legislature has lifted a regulation that would

otherwise burden religious self-governance.

Second, the church-autonomy doctrine, which underlies § 22.207,

is a constitutional principle of literally transcendent importance.

Reaching any result other than the one the Court reaches today would

pose grave concerns under the doctrine because it would threaten

religious organizations’ authority to govern themselves. This Court has

had only a handful of opportunities to address the church-autonomy

doctrine (which, of course, protects religious entities of any faith despite

the “church” shorthand). Significant questions about its scope and

application remain, as illustrated by the dueling briefs of the two amici

curiae in this case, First Liberty Institute and the Becket Fund for

Religious Liberty. Their briefs share many foundational premises and

express a common goal, yet they reach diametrically opposed outcomes.

I hope that these amici and others will continue examining the church-

autonomy doctrine so that in future cases, the risk of error on the Court’s

part will be reduced.

Third, and relatedly, I write to call attention to the need to examine

3

the Texas church-autonomy doctrine. Our cases thus far have turned only

on federal constitutional law. Federal principles, of course, are binding—

but they are not necessarily limiting. The Texas Constitution’s text is

markedly different in ways that, I suspect, may materially affect how

Texas courts analyzing church-autonomy disputes will react. Our

Constitution strikes me as even more protective of the autonomy of

religious organizations. Texans have never purported to “grant” religious

freedom to anyone; they instead have always acknowledged it as an

inalienable right that government should protect. The Texas

Constitution’s church-autonomy doctrine reflects our People’s deep

humility in affirmatively disclaiming any power, much less any intention,

to interfere in the relationship between God and man. Mapping our

Constitution’s distinct contours based on its original public meaning will,

again, require assistance from amici, the bar, the public, litigating parties,

and our colleagues on the lower courts.

I

Business Organizations Code § 22.207 makes this an easy case. It

does not just permit a board to be “elected” by a religious organization but

to be “controlled” by one. Without that statute, the Conference would

have to overcome Business Organizations Code § 20.002, which SMU

compellingly argues forecloses the Conference’s ability to challenge the

validity of the amendments to SMU’s articles of incorporation. SMU

likewise persuasively argues that articles of incorporation generally

cannot be the foundation for a breach-of-contract claim.

As the Court today observes, the doctrine of constitutional

avoidance demands that we harmonize § 22.207 and § 20.002, thereby

4

safeguarding constitutional protections enjoyed by religious organizations.

It is possible, in fact, that § 20.002 would not apply to entities like the

Conference even if § 22.207 did not exist. The U.S. Supreme Court’s

decision in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979),

shows why that might be so.

In Catholic Bishop, the Court confronted the NLRB’s assertion of

authority to subject parochial schools to its jurisdiction under the

National Labor Relations Act. Id. at 504. If the Act in fact authorized

such jurisdiction, the Court would need “to resolve difficult and sensitive

questions arising out of the guarantees of the First Amendment Religion

Clauses.” Id. at 507. The Court was able to avoid those constitutional

questions by observing that “[t]here is no clear expression of an

affirmative intention of Congress that teachers in church-operated

schools should be covered by the Act,” id. at 504, and then refusing to

interpret the Act as conferring jurisdiction over schools operated by

churches “in the absence of a clear expression of Congress’ intent to” do

so, id. at 507. In other words, even though the Act did not expressly

exclude parochial schools, the Court refused to read it as including them

unless Congress made that intent clear.

Similarly, and especially in a State that likely privileges religious

self-governance more than the minimum required by the federal

Constitution, I would expect greater clarity from the legislature before

concluding that it had imposed the limitations of § 20.002 on religious

organizations like the Conference. Of course, the Court today does not

decide whether § 20.002 is insufficient on its own to foreclose a religious

organization’s recourse to court to vindicate its control over a nonprofit

5

corporation, and I do not purport to do so either. But under the Catholic

Bishop approach, it is far from implausible that this Court would

interpret § 20.002 in favor of religious autonomy.

Fortunately, our legislature has provided the further guidance that

was lacking in Catholic Bishop, which is where § 22.207 enters the scene.

Rather than supplying the “clear expression of an affirmative intention”

to subject religious organizations to § 20.002, what we find is § 22.207,

which pushes in exactly the opposite way. Far from confirming that

religious organizations may lose their control when § 20.002 would apply,

it resoundingly reaffirms their control, and “it is a permissible legislative

purpose to alleviate significant governmental interference with the

ability of religious organizations to define and carry out their religious

missions.” Corp. of Presiding Bishop v. Amos, 483 U.S. 327, 335 (1987).

As the Court observes, see ante at 20–21, our State’s Constitution—

unlike the federal Constitution—has imposed a duty upon the legislature

to pass laws to ensure that religious entities are not stymied in carrying

out their “mode” of worship. Tex. Const. art. I, § 6. Section 22.207 is one

such law. It offers extra protection for religious organizations, and only

for them. By dispensing with the general requirements of § 20.002 in the

context of religious self-governance, § 22.207 “lift[s] a regulation” that

otherwise “burdens the [Conference’s] exercise of religion.” Amos, 483

U.S. at 338. In so doing, it prevents § 20.002 from becoming a tool that

would diminish religious organizations’ ability to control corporations

that help them “carry out their religious missions.” Id. at 335, 339.

I thus agree with the Court that at the very least, § 22.207 must

be read as preserving religious organizations’ authority to seek recourse

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to the courts even when § 20.002 might drain that authority in other

contexts. In that way, § 22.207 is in part a manifestation of the church-

autonomy doctrine as enacted by the legislature.

II

Relevant to the Court’s invocation of constitutional avoidance is

the insistence from amici to apply the church-autonomy doctrine. That

doctrine is implicated here given the Conference’s efforts to preserve its

religious self-governance under Texas corporate-formation law. As

Justice Thomas recently observed, religious organizations “do not exist

apart from the secular world.” Cath. Charities Bureau, Inc. v. Wis. Lab.

& Indus. Rev. Comm’n, ___ U.S. ___, ___, No. 24-154, 2025 WL 1583299,

at *11 (U.S. June 5, 2025) (Thomas, J., concurring). Even if they are not

of the world, they are still in it, and they must regularly engage in

mundane tasks like buying and selling property, hiring and paying staff,

forming contracts, and (alas) filing lawsuits. See id. “These and other

considerations make the formation of corporate entities essential for

many religious institutions.” Id. And when they form corporations, “the

First Amendment . . . gives special solicitude to the rights of religious

organizations,” not lesser solicitude. Hosanna-Tabor Evangelical

Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 189 (2012).

Section 22.207 is a law that affords such “special solicitude,” but

beyond that provision, the courts must protect religious autonomy by

upholding the lawful secular choices that religious organizations make.

Doing so is not always as easy as it sounds (or as easy as it is in today’s

case). There are impermissible lines that courts may not cross. Courts

may not consider, much less rule upon, disputed doctrinal questions. Nor

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may courts intervene in a church’s mode of self-governance or second-

guess the resulting decisions. A court doing so may well intend to defend

religious autonomy, but such a court would both exceed its authority and

undermine the very principles it hoped to advance.

I turn first to the principles of the church-autonomy doctrine. I

only briefly sketch its central features, many of which are so well covered

in precedent and in scholarship as to warrant very little discussion here.

But other corners of the doctrine are somewhat less commonly recognized,

including why the church-autonomy doctrine can command the entire

government, including courts, whether affected parties invoke it or not. I

discuss those nuances at somewhat greater length. Second, I examine

how those principles apply here and conclude that but for our ability to rely

on § 22.207, and assuming we could not read § 20.002 as I hypothesized

above, the Court—and not just a concurring opinion—would have to

confront serious constitutional issues yet would reach the same result.

One final prefatory note: the tentative nature of what follows. It

is hard to imagine a corner of the law that is more important (or more

challenging) for the courts to get right. My goal is to identify several

central issues that warrant further analysis, describe corresponding

principles that seem grounded in our constitutions’ religious-liberty

provisions, and invite future parties, amici, and others to take aim at my

conclusions. Further research and analysis may confirm my provisional

views; perhaps those views will be dislodged in whole or part, and if so,

nothing said today will commit me in a case tomorrow to any particular

position. Either way, any resulting assistance will benefit us by making it

more likely that when the Court must bind itself to some understanding—

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when, unlike in this case, we face a concrete yet unavoidable constitutional

conflict—the understanding we adopt will be sound.

A

The church-autonomy doctrine represents a commitment inherent

in the federal and Texas Constitutions’ protections of religious liberty to

affirm the inalienable right of religious organizations, and their individual

adherents, to their own beliefs and forms of self-governance. It is a

substantive commitment that raises jurisdictional obstacles by delineating

a zone of belief and practice into which the government may not enter.

Those obstacles apply to the entire government—not only in litigation.

When the church-autonomy doctrine does arise in that context, how a court

should respond depends on the nature of the issues raised, not merely on

whether religious organizations are involved. Sometimes a court must

decline to exercise jurisdiction over part or all of a case; sometimes the

exact opposite is true. In every instance, what matters is which action is

consistent with the overriding principle of church autonomy.

1

“[T]he jurisdictional line prohibiting civil courts from intruding on

ecclesiastical matters is an ancient one” that became “so entrenched in

English history that even [Sir Edward] Coke—the seventeenth century’s

fiercest champion of civil jurisdiction and the common law—respected it.”

McRaney v. N. Am. Mission Bd. of S. Baptist Convention, Inc., 980 F.3d

1066, 1077 (5th Cir. 2020) (Oldham, J., dissenting from denial of

rehearing en banc). Governments and courts in America have not always

plotted this line with perfect clarity or fidelity, to put it mildly. But the

basic contours of the autonomy principle have always been present in this

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country, including before the Constitution itself was ratified.

In a striking and early example of the doctrine’s extrajudicial

force, a group of French Catholics in 1781 requested that Congress, then

operating under the Articles of Confederation, approve their appointment

of a bishop in America amid a political crisis with the French magisterium.

Carl H. Esbeck, Church Autonomy, Textualism, and Originalism:

SCOTUS’s Use of History to Give Definition to Church Autonomy

Doctrine, 108 Marq. L. Rev. (forthcoming June 2025) (manuscript at 144),

https://ssrn.com/abstract=5099688. In response, Benjamin Franklin was

instructed to notify the French minister that “the subject of his

application . . . being purely spiritual, it is without the jurisdiction and

powers of Congress.” Id.

Back in the judicial branch, the U.S. Supreme Court has outlined

the First Amendment’s protection of church autonomy in about a dozen

significant cases. Justice Alito recently summarized the substance and

scope of the Court’s church-autonomy precedents:

As early as 1872, our church-autonomy cases explained that

“civil courts exercise no jurisdiction” over matters involving

“theological controversy, church discipline, ecclesiastical

government, or the conformity of the members of the church

to the standard of morals required of them.” Watson v.

Jones, 13 Wall. 679, 733 (1872). That is so because the

Constitution protects religious organizations “from secular

control or manipulation.” Kedroff v. Saint Nicholas

Cathedral of Russian Orthodox Church in North America,

344 U.S. 94, 116 (1952). The religious organizations

protected include churches, religious schools, and religious

organizations engaged in charitable practices, like

operating homeless shelters, hospitals, soup kitchens, and

religious legal-aid clinics . . . among many others.

Seattle’s Union Gospel Mission v. Woods, 142 S. Ct. 1094, 1096 (2022)

10

(statement of Alito, J., respecting the denial of certiorari).

This Court, relying on the same line of cases, has similarly

emphasized that “[u]nder the First Amendment, . . . courts must abstain

from exercising civil jurisdiction over claims that require them to ‘resolve

a religious question’ or ‘impede the church’s authority to manage its own

affairs.’ ” In re Diocese of Lubbock, 624 S.W.3d 506, 509 (Tex. 2021)

(quoting Westbrook v. Penley, 231 S.W.3d 389, 397 (Tex. 2007)). The case

law reflects two basic boundary lines separating religious authorities

from the civil government: questions of religious doctrine and matters of

religious self-governance.

At its core, the church-autonomy doctrine is merely a formal

restatement of basic truths that the Constitution adopts. Specifically,

every individual has a preexisting and inalienable right to worship

according to his own conscience. That right encompasses associating with

others of like mind and includes each individual’s ability to join religious

institutions. The autonomy of a religious organization within the

religious sphere is a necessary consequence and manifestation of

individual religious liberty. Whether for a massive, international church

or a tiny cluster of believers, application of the church-autonomy doctrine

respects that “different and higher plane” upon which ecclesiastical

relationships stand. Minton v. Leavell, 297 S.W. 615, 622 (Tex. Civ.

App.—Galveston 1927, writ ref’d).

The government can avoid instructing citizens on matters of faith or

purporting to measure a church’s compliance with its own dogma without

being blind to the existence of religious practice. The federal and Texas

Constitutions require the government to protect religious liberty at least

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as thoroughly as other kinds. Thus, with respect to religious organizations’

self-governance, the government’s only (yet quite significant) role is to

vindicate an ecclesiastical community’s right to organizational and

doctrinal independence. When a religious organization chooses the

corporate form for one part of its mission—a parish church, an entity

committed to community outreach, or a university—the government,

including the courts, must respect and uphold that choice.

2

It can be tempting to think of the church-autonomy doctrine as

mostly about judicial “subject-matter jurisdiction.” It obviously extends

to the judicial power, see infra Part II.A.3, but it unduly constrains the

doctrine to view it as applying in court while forgetting about the rest of

the government.

Accordingly, I pause to emphasize that this Court has been clear

in stating that any “[g]overnment action that interferes with [religious]

autonomy or risks judicial entanglement with a church’s conclusions

regarding its own rules, customs, or laws is . . . prohibited by the First

Amendment.” Diocese of Lubbock, 624 S.W.3d at 513. The church-

autonomy doctrine “protect[s] the right of churches and other religious

institutions to decide matters of faith and doctrine without government

intrusion.” Our Lady of Guadalupe Sch. v. Morrissey-Berru, 591 U.S. 732,

746 (2020) (emphasis added) (internal quotation marks omitted). That

means that any “[s]tate interference in that sphere would obviously violate

the free exercise of religion, and any attempt by government to dictate or

even to influence such matters would constitute” an unconstitutional

“intrusion.” Id. (emphases added).

12

This broad prohibition against the “government” in toto, see

Diocese of Lubbock, 624 S.W.3d at 512–13, is “a structural restraint,” see

Westbrook, 231 S.W.3d at 397, that commands each branch of government

to consistently measure its own conduct against the substantive principle

that religious organizations must govern themselves. That principle does

not merely confer rights, as important as they are; it also provides an

absolute boundary dividing civil governmental power from a wholly

different realm of sovereignty.

And while religious organizations (and individual believers)

obviously benefit from the government’s refusal to meddle in matters of

religious doctrinal truth or self-governance, the civil government also

benefits. Steering clear of this forbidden area—resisting temptations and

even invitations to instruct any religious community about the contents of

its faith or the propriety of its internal governance—helps the government

preserve its own integrity. In short, limitations from the church-

autonomy doctrine, like other fundamental restrictions on judicial power,

do not belong solely to the litigants in a case to invoke or not as they deem

fit. The doctrine is the common inheritance of every citizen, and because

it represents an exclusion of civil authority and not just the recognition of

private rights, it becomes the common duty of any state actor to respect

the doctrine’s core limits however (or whether) it is invoked.

3

With that foundation, I now turn to the narrower question of what

the church-autonomy doctrine requires specifically of the judicial

department. Church-autonomy litigation often involves the government,

but it also arises within purely private disputes about the contested

13

ownership of property dedicated to religious use or, as in this case, about

corporate governance. Of course, a court’s initial obligation in any case is

to assess its own jurisdiction, and the church-autonomy doctrine can

specifically require courts to disclaim jurisdiction over part or all of a

lawsuit, even where the parties have not raised or may have arguably

forfeited the issue. By the same token, however, the church-autonomy

doctrine can require courts to exercise jurisdiction. I therefore proceed by

addressing the church-autonomy doctrine and (1) its relationship to the

doctrines of waiver and forfeiture, (2) its effects on courts’ jurisdiction,

and (3) its applicability to both public and private litigation.

First, it is notable at the outset how the church-autonomy doctrine

first arose in this case. It was not the parties, but the court of appeals,

that identified the risks of treading on prohibited grounds. The question

thus arises: When parties fail to timely invoke the church-autonomy

doctrine, or perhaps when they affirmatively want the courts to adjudicate

religious disputes, do the usual waiver and forfeiture tests apply? In

other words, may courts disregard the church-autonomy doctrine when

the parties themselves fail to raise it or ask the courts to look past it?

The court of appeals acted responsibly by addressing the matter

itself. Indeed, when a question is not merely one that implicates religious

rights but is altogether outside a court’s constitutional authority to answer,

such a limitation cannot be subject to ordinary invocations of waiver or

forfeiture. The ability to waive or forfeit an objection traditionally belongs

to the parties themselves, but as I have discussed, the church-autonomy

doctrine belongs to the People and applies as a structural limitation on

the government. When a religious organization fails to object to a court’s

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taking a constitutionally unauthorized step—or even if the organization

expressly invites it—the court remains duty-bound not to take actions or

decide questions forbidden by the church-autonomy doctrine.

That duty is no less relevant than if the parties are willing for the

court to render judgment in a collusive suit, or to opine on a case that is

now moot or in which the plaintiff never had standing, or to render an

advisory opinion on a matter of great interest to the public, or to answer a

political question that is not susceptible to principled judicial decision-

making. In none of those circumstances do notions of waiver and forfeiture

matter. Cf. Tex. Disposal Sys. Landfill, Inc. v. Travis Cent. Appraisal Dist.,

694 S.W.3d 752, 760 (Tex. 2024) (“[P]arties cannot confer jurisdiction by

agreement.”). Parties and counsel must identify plausible jurisdictional

objections as soon as they are aware of them. See, e.g., Tex. Right to Life

v. Van Stean, 702 S.W.3d 348, 356 (Tex. 2024). But whether they comply

with this obligation or not, what matters in each situation is that the

courts protect their own integrity as institutions exercising only judicial

power. The same is true here. Courts lack authority to opine on the true

meaning of religious doctrine or to inject themselves into a religious

organization’s self-governance regardless of the parties’ litigation conduct.

Second, it may be tempting to develop a jurisdictional “rule” that,

like a drop of arsenic in a glass, is fatal to justiciability whenever a

dispute is of religious significance to the parties. That circumstance

should alert judges to the potential for serious constitutional limitations,

but if religiosity automatically defeated subject-matter jurisdiction,

religious organizations would have fewer rights than everyone else.

The correct test derives from the doctrine’s substantive principles:

15

If a court cannot resolve an otherwise-proper claim without second-

guessing religious organizations’ modes of self-governance or purporting to

settle disputed questions of faith or doctrine, the court lacks jurisdiction

to act or answer. “ ‘Jurisdiction,’ it has been observed, ‘is a word of many,

too many, meanings’ . . . .” Steel Co. v. Citizens for a Better Env’t, 523 U.S.

83, 90 (1998) (quoting United States v. Vanness, 85 F.3d 661, 663 n.2 (D.C.

Cir. 1996)). Jurisdiction here bears its truest and rawest meaning: power.

Courts are not “divested” of jurisdiction in some formalistic sense—they

simply lack any power in the first place to opine as to religious truth or to

meddle in the inner-workings of religious entities.

The U.S. Supreme Court confronted a clear invitation to transgress

this boundary in Presbyterian Church in the United States v. Mary

Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440 (1969).

A local church sought to emancipate itself from the larger denomination,

and under Georgia law, “the right to [its real] property” depended on a

“jury decision as to whether the [larger] church abandoned or departed

from the tenets of faith and practice it held at the time the local churches

affiliated with it.” Id. at 441. The Supreme Court made clear that

awarding rights to property based on how a civil court assesses the

meaning and importance of religious doctrine is always impermissible.

Id. at 449. Instead, “civil courts [must] decide church property disputes

without resolving underlying controversies over religious doctrine.” Id.

Because of that limitation, a case that raises only purely religious

issues must be dismissed. Courts lack the power to resolve such issues.

But cases that seem to invite such religious assessment, at least at first

blush, may yet be justiciable. In Presbyterian Church, for example, the

16

dispute was religiously motivated but could be (and on remand to the

Georgia Supreme Court was) disposed of without resolving ecclesiastical

questions. See id.; see also Presbyterian Church in U.S. v. E. Heights

Presbyterian Church, 167 S.E.2d 658, 659–60 (Ga. 1969). Other examples

arise where courts exercise authority strictly to protect church autonomy

without ever addressing any religious issue. The issue in any case is how

to avoid red lines. Above all, the court may do nothing more than use

secular tools to recognize (and not actually itself make) decisions that the

religious entity alone can reach. See Presbyterian Church, 393 U.S. at

449 (noting the “severely circumscribe[d] role” of the courts).

This area is not the only one that presents significant difficulty for

courts, of course. The separation-of-powers context provides a useful

analogue. Some questions are beyond the courts’ capacity or authority to

address at all—particularly those that are expressly left to another branch

of government. But resolving separation-of-powers disputes is a core

judicial function—the courts do not themselves answer the underlying

issue, but they can identify the correct entity to do so and enforce whatever

decision that entity makes. See, e.g., Zivotofsky v. Clinton, 566 U.S. 189,

196–97, 201 (2012) (noting that the courts could not “decide the political

status of Jerusalem” but that they could decide which political actor

could make that choice); In re Tex. House of Representatives, 702 S.W.3d

330, 334 (Tex. 2024) (recognizing the Court’s inability to resolve the

underlying criminal-law dispute but addressing “the important but

unresolved separation-of-powers question presented” that asked “how

the People of Texas have structured their government and to which

governmental entities they have allocated specific kinds of authority”).

17

Just as courts may vindicate the authority of a properly authorized

branch of government to make decisions that the courts themselves may

not make, courts may vindicate property rights or the like even in cases

with obvious “religious implications.” Using civil tools to determine who

is authorized to make a decision that is binding in a civil court is—and

must be—wholly distinct from the court itself making such a choice,

which can be motivated by religious considerations. Assessing the

religious propriety of the choice goes beyond the courts’ authority, just as

resolving separation-of-powers disputes does not depend on the political

propriety of a choice belonging to another branch of government.

None of this is to say that it will always be easy for courts to use

secular tools to resolve disputes involving religious entities. The exercise

is fraught with peril, and courts must constantly guard against inadvertent

slippage into unauthorized terrain—to mistakenly slide from vindicating

church autonomy into supplanting it.

Compounding this difficulty is the important point that

jurisdictional limitations are granular; they are not necessarily case-level

decisions. The solution in Presbyterian Church was not dismissal—it was

for the Georgia courts to apply a standard that did not require them “to

resolve ecclesiastical questions.” 393 U.S. at 449.

The jurisdictional question, therefore, is not binary. Perhaps the

most famous church-autonomy case of them all is Watson v. Jones, which

involved another dispute among Presbyterian churches that heatedly

debated each other’s religious bona fides. 80 U.S. (13 Wall.) 679 (1871).

The Supreme Court declared that the theological controversy was

“strictly and purely ecclesiastical in its character” and thus beyond the

18

jurisdiction of civil courts to adjudicate. Id. at 733. But that did not mean

that the Court treated the case as failing to clear a genuine jurisdictional

bar, which would have required dismissal. Rather, it affirmed the circuit

court’s decree on the merits, which had in turn deferred to the governing

assembly’s decision as to who was properly authorized to constitute the

Presbyterian church in question. Id. at 700, 735. The case was

justiciable, even though the underlying religious controversy was not.

Watson provides enduring guidance to courts resolving property disputes

that arise amid religious quagmires.

This Court followed Watson when confronted with a similar fact

pattern. We did not declare the case nonjusticiable; we explained that

Watson “shows conclusively that the determination of an ecclesiastical

court as to its jurisdiction over a given question is as conclusive upon the

civil courts as is its decision of the question when made.” Brown v. Clark,

116 S.W. 360, 364 (Tex. 1909). We lacked jurisdiction to reopen an

ecclesiastical decision on a matter of doctrine, even where that doctrinal

decision in turn compelled a particular result for property ownership. Id.

Rather than requiring dismissal, we were required to reinstate the trial

court’s judgment, which had awarded the property consistent with the

church body’s decision, and even to assess costs against the plaintiffs in

error. Id. at 365; see also Masterson v. Diocese of Nw. Tex., 422 S.W.3d

594, 605–06 (Tex. 2013) (observing that Brown, properly understood,

adopted a “neutral principles” approach to church-property disputes).

The lack of civil jurisdiction over religious questions, therefore,

does not necessarily entail a lack of jurisdiction over the entire dispute.

Courts should maintain their focus on whether, in resolving an otherwise

19

justiciable controversy, they must cross one of the red lines that the

Supreme Court’s and this Court’s cases have identified. If so, they may

not take that step; if they can resolve the dispute in a way that does not

so trespass, then their jurisdiction is not threatened.

The same principle, however, can generate the contrary outcome—

where courts must exercise jurisdiction, at least so long as all other

jurisdictional prerequisites are met. In such circumstances, failing to

exercise jurisdiction would undermine and even violate the doctrine.

Consider the U.S. Supreme Court’s decision in Kedroff, in which rival

factions of the Russian Orthodox Church contested who was in control of

the cathedral and the church’s functions in New York—that is to say, who

was the true archbishop. See 344 U.S. at 96. The New York legislature

passed a law that had the effect of transferring this authority to one

faction. Id. at 97–99. Unsurprisingly, the Supreme Court held that the

statute violated the Constitution. Id. at 107, 119. The “controversy

concerning the right to use St. Nicholas Cathedral [was] strictly a matter

of ecclesiastical government,” implicating a power clearly lodged in the

mother church and certainly not susceptible to change by governmental

fiat. Id. at 115. Accordingly, exercising jurisdiction was necessary to

vindicate the relevant religious community’s allocation of authority.

Vindicating church autonomy is sometimes possible, in other

words, only when a court exercises subject-matter jurisdiction, which can

ensure that the substantive constitutional principle is not honored in

name while defiled in practice. This can require deeming governmental

actions invalid in some cases or restoring the status quo ante if private

parties seek to drain a religious entity of its control. In no instance may

20

a court become an arbiter of religious doctrine or the proper inner-

workings of a religious entity, but dismissing a case asking a court to

protect the religious entity’s authority to make those very choices for itself

would jeopardize the “spirit of freedom for religious organizations, an

independence from secular control or manipulation, in short, power to

decide for themselves, free from state interference, matters of church

government as well as those of faith and doctrine.” Id. at 115–116 (citing

Watson, 80 U.S. at 727). Taken to its extreme, a talismanic dismissal of

cases for “lack of subject-matter jurisdiction” risks closing the courthouse

doors to religious organizations, rendering them helpless to protect their

constitutional rights and achieving the exact opposite of the religious-

liberty aspirations of our constitutions.

In proper circumstances, therefore, the church-autonomy doctrine

may require a court to exercise jurisdiction and rule for the religious

entity on the merits—not because of any religious inquiry but because of

the church-autonomy doctrine’s substantive reach. In Hosanna-Tabor

and Morrissey-Berru, the U.S. Supreme Court again applied the church-

autonomy doctrine’s substantive principles, concluding in both cases

that the religious organizations (specifically, the religious schools) won

because of the substantive promise that the government will not second-

guess how a religious organization undertakes the fundamental task of

choosing its leaders. Hosanna-Tabor, 565 U.S. at 198; Morrissy-Berru,

591 U.S. at 762.

Such a win is on the merits. It does not depend on scrutinizing

religious choices, beliefs, or self-governance. The merits decisions did not

turn on whether the church’s reasons for terminating the teachers’ jobs

21

were sufficiently grounded in the faith—or whether they turned on

religious reasons at all. Instead, regardless of the reason, “it is

impermissible for the government to contradict a church’s determination

of who can act as its ministers.” Hosanna-Tabor, 565 U.S. at 185. The

church-autonomy doctrine’s breadth, in other words, can allow courts to

respect and vindicate the interests of religious organizations on the

merits and without crossing any impermissible red line.

Beyond cases in which the courts are facially deprived of

jurisdiction (i.e., when they are affirmatively asked to opine as to religious

truth) or cases in which the courts must exercise jurisdiction (i.e., when

doing so would vindicate a religious organization’s autonomy), there may

be a third variant. Specifically, dismissal may be inevitable for cases in

which it is impossible to impose general secular law against a religious

organization without affecting its internal governance, even if the court

does not formally address any question of doctrine. Several of our

precedents fit in this category, at least from my perspective.

Take the defamation and intentional-infliction-of-emotional-

distress claims in Diocese of Lubbock. We explained that “[a]lthough

tort law imposes a duty not to defame or intentionally inflict emotional

distress upon others, a civil suit that is inextricably intertwined with a

church’s directive to investigate its clergy cannot proceed in the courts.”

Diocese of Lubbock, 624 S.W.3d at 517 (internal citation omitted). The

principle, we said, was that “courts are prohibited from risking judicial

entanglement with ecclesiastical matters.” Id. at 514 (citing Morrissey-

Berru, 591 U.S. at 761). We concluded that “to the extent [the] suit

directly challenges the Diocese’s application of Canon Law in its internal

22

governance process, the court lacks jurisdiction.” Id. at 516. The

particular red line was that the suit was “ ‘inextricably intertwined’ with

the Diocese’s decision to investigate its own clergy, judicial review of

which would impermissibly interfere with a church’s ability to regulate

the character and conduct of its leaders,” and “exercising jurisdiction

would invade the Diocese’s internal management decision to investigate

its clergy consistent with its own norms and policies.” Id. at 516–18.

Likewise, in Westbrook v. Penley, we considered a legislatively

mandated duty of confidentiality for professional counselors as issued in

a state regulation. 231 S.W.3d at 402–03. “But however highly we might

rate the importance of that interest, it is by no means absolute when

impingement on free-exercise rights results.” Id. In that case, the same

defendant was a minister and a licensed counselor, and he revealed to his

congregation that the plaintiff had engaged in an affair and was thus to

be subjected to church discipline, to which she had agreed. Id. at 391.

There was no way to hold the defendant to his secular duties without

penalizing him for following the ecclesiastical process that the church had

mandated. Id. at 400.

Just as I described above the risk of courts too quickly dismissing

cases that should be adjudicated despite the initial appearance of serious

religious disputes, the converse risk also exists. We ultimately “must

carefully scrutinize the circumstances so as not to become entangled in

a religious dispute.” Pleasant Glade Assembly of God v. Schubert, 264

S.W.3d 1, 12 (Tex. 2008). In other words, we look hard to ensure that

what seems to be secular is not a mere stalking horse—intentional or

otherwise—for subjugating a religious organization to civil authority for

23

matters that actually are ecclesiastical.

Third, and finally, it is worth reiterating that while the church-

autonomy doctrine is one that limits the government, it also plays a

significant role in private litigation. What is more, many cases applying

the doctrine involve private litigation in which the courts must render

judgment rather than dismiss, thus vindicating religious autonomy. The

U.S. Supreme Court’s decision in Serbian Eastern Orthodox Diocese v.

Milivojevich, 426 U.S. 696 (1976), provides one good example. There, the

private lawsuit subjected a church to extensive judicial scrutiny about its

compliance with its internal canon law, which resulted in the

reinstatement of a particular bishop as the “Diocesan Bishop.” Id. at 708;

see also id. at 725 (Rehnquist, J., dissenting) (observing that the litigation

was purely private). The Supreme Court rejected this extraordinary

intrusion, but it did not demand dismissal for want of jurisdiction—it

instead required the state courts to accept the binding determination of

the “mother church,” which in turn determined the ownership of certain

property. Id. at 713 (majority opinion).

B

The Conference alleges a wrongful divestiture of its control over

SMU. Given the church-autonomy doctrine, the outcome that the Court

reaches today seems inevitable—if not under § 22.207, then under the

constitutional principles described above. I proceed in three brief steps.

First, there is sufficient governmental involvement here to implicate the

doctrine, although I doubt that any particular state action is even needed.

Second, litigating corporate articles and litigating property disputes are

materially indistinguishable for these purposes—both are delicate, but

24

both are doable. And third, this case does not come close to crossing any

of the red lines that would require dismissal rather than vindication of a

religious organization’s claim. Allowing the Conference to make its case

cannot possibly violate the church-autonomy doctrine, but denying it that

chance likely would.

1

First, SMU downplays the church-autonomy issue by depicting the

case as purely private, simply “requir[ing] resolution of settled, neutral

principles of law” to prevent what it depicts as a complete outsider—the

Conference—from wresting control of the university. (The Conference

likewise regards the case as simple, but it casts the board of trustees rather

than itself as the interloper.) Assuming that any particular state action

is needed, it is easy enough to find. To the extent the State is involved, it

was because SMU’s board asked the secretary of state to accept amended

articles that, if effective, would emancipate SMU from the Conference.

The days have long passed in Texas when corporate formation

required an express act of the legislature. See, e.g., Paxton v.

Annunciation House, Inc., ___ S.W.3d ___, 2025 WL 1536224, at *4–5

(Tex. May 30, 2025). It remains true, however, that corporations are

legally created and altered “dependent upon the consent of the sovereign

power.” A. B. Frank Co. v. Latham, 193 S.W.2d 671, 673 (Tex. 1946)

(citation omitted). Both parties agree that the secretary of state’s role

here, although ministerial, was legally decisive and indispensable.

Regardless of whether the board ought to have filed the amended articles

with the secretary, in other words, everyone agrees that her acceptance

of the filing is what makes it legally enforceable. By contrast, merely

25

deleting references to the Conference in some internal memo would have

had no force; removing any mention of the Conference from SMU’s

articles and then filing them with the State is what does. Such recourse

to state authority supplies sufficient connection to government to

implicate the church-autonomy doctrine, despite the involvement being

passive and the State’s lack of any interest in whether, under properly

amended articles, the Conference retains or relinquishes its control.

SMU was apparently left free, if its students and staff disagreed

with any doctrine of the larger United Methodist Church, to distance itself

from those doctrinal stances. SMU did so in numerous ways even as this

litigation was unfolding, assuring students that the university disagreed

with the church’s (now abandoned) “Traditional Plan,” that the university

would still provide the inclusive learning environment the plan

purportedly threatened, and that the university would continue to comply

with federal civil-rights guidance on sexual orientation notwithstanding

any (apparently illusory) contrary guidance from the church. Whatever

authority the Conference may have had to countermand any of these steps,

it seemingly chose restraint. And whatever else SMU might be able to do

to signal its own distinct views, it could not (1) demand that the State join

in by engineering an amendment that entirely ousts the Conference from

its position of control and then (2) prevent scrutiny either via a declaratory

action or under the church-autonomy doctrine. Texas’s constitutional

guarantee that “no human authority” will improperly interfere in

religious matters, Tex. Const. art. I, § 6, may not be so easily evaded.

In any event, as I discussed in Part II.A.3, supra, whether against

the government, purely private, or some hybrid, at least in some cases

26

the exercise of judicial power itself may amply implicate the church-

autonomy doctrine. See, e.g., Milivojevich, 426 U.S. at 708. Here, SMU

purported to unilaterally secede from the Conference despite being

subject to its control. SMU could have brought a declaratory action

before filing the amendments to obtain judicial approbation of its

contested authority to do so. Instead of turning to the courts, however,

SMU turned to the secretary of state, filing revised articles of

incorporation that deleted the Conference’s role and authority without

its consent, and by doing so, it purported to free itself of the Conference’s

preexisting control. Can it really be that the church-autonomy doctrine—

a fundamental precept of federal and Texas constitutional law, central

to our very identity, providing a defining limit to the structure of our

government, and imparting a core basis for the protection of religious

self-governance—has such a gaping loophole that its evasion requires

nothing more than a surreptitious filing of revisions to articles of

incorporation? Can it possibly be true that what a litigator could never

achieve, a transactional lawyer can do with a mere filing in the secretary

of state’s office? Religious liberty would be fragile indeed if SMU could

so easily deprive the Conference of any way to protect its substantial rights.

The overriding question is always whether the government will

protect church autonomy or whether the government will allow that

autonomy to be drained away. I see no real reason why this dispute, like

other cases in which private religious entities asserted conflicting secular

rights, see supra Part II.A.3, requires any additional “government”

involvement to implicate the doctrine.

27

2

One reason for that result is that this case shares the material

features of a property dispute, which everyone agrees requires no distinct

government involvement for civil courts to resolve. We have repeatedly

stated that “courts are to apply neutral principles of law to issues such as

land titles, trusts, and corporate formation, governance, and dissolution,

even when religious entities are involved.” Episcopal Diocese of Fort

Worth v Episcopal Church, 602 S.W.3d 417, 424 (Tex. 2020) (emphasis

added) (quoting Masterson, 422 S.W.3d at 606). We added that “specific,

lawful provisions in a corporation’s articles of incorporation or bylaws”

will govern how a corporation, including one set up for religious purposes,

“can change its articles of incorporation.” Id. at 432 (quoting Masterson,

422 S.W.3d at 609). The authority to make such amendments presents

“secular, not ecclesiastical, matters” unless the documents provide

otherwise. Id. (quoting Masterson, 422 S.W.3d at 609).

These statements, arising from cases that turned on scrutinizing

documents including articles of incorporation, are surely right. How is a

dispute among religious entities about which has the right to use real

property meaningfully different from a dispute about which has the right

to amend (or forbid amendment of ) a corporation’s articles? Someone

must have title to church property; the articles of incorporation of a Texas

corporation either were validly amended, or they were not. These are not

the kinds of cases that the church-autonomy doctrine bars at the

courthouse door.

Of course, religious organizations are free to make any of these

rights turn on religious questions that civil courts may not themselves

28

answer. When they do—such as by vesting title in a congregation on the

condition that it remains true to a particular doctrine—the courts’ work

becomes more complicated. But even then, that work does not

impermissibly extend to resolving the disputed religious questions; it

only looks to the proper authority to provide the binding answer. In that

sense, the “neutral principles” approach collapses into “deference,” as in

this Court’s seminal decision in Brown. If neutral principles—i.e.,

reading secular documents as they are usually read—themselves point to

a result predicated on religious determinations, then the issue becomes

ensuring that deference is properly yielded. That may sound hard, and

sometimes it is. But if it can be done in a property-rights context, then

I see no reason why it could not happen in a corporate-formation or

corporate-governance context.

Happily, there will be no such difficulty in this case. The articles

of incorporation simply state that SMU is “forever” part of the

Conference’s mission and under its control; they expressly forbid any

amendment to the articles absent the Conference’s consent. How the

Conference chooses to exercise that control or grant that consent, or

whether its decisions reflect true and pure Methodism, is wholly beside

the point—those are ecclesiastical matters. The text tells us everything

that civil courts need to know to assess the amendments’ validity. By

contrast, if the articles stated that the Conference remained in control

of SMU only so long as it remained true to John Wesley’s teachings, we

would obviously be unable to adjudicate a challenge on the grounds that

it has departed from that doctrine. Here, however, there are no religious

questions to answer—only religious rights to vindicate.

29

Thus, I again see no real difference from property cases. The

church-autonomy doctrine, at least sometimes, represents “an invitation

to churches, where they deem it appropriate, to ask courts to assist them

in resolving certain church property disputes.” McRaney, 980 F.3d at

1071 (Ho, J., dissenting from denial of rehearing en banc) (describing the

principles articulated in Jones v. Wolf, 443 U.S. 595, 602–04 (1979)). I

agree. That “invitation” is presumably open for the defense of other kinds

of rights besides claims to Blackacre.

3

The church-autonomy doctrine requires courts to act to protect

church autonomy subject to the now-familiar red lines—that a “court may

exercise jurisdiction over a controversy if it can apply neutral principles of

law that will not require inquiry into religious doctrine, interference with

the free-exercise rights of believers, or meddling in church government.”

Diocese of Lubbock, 624 S.W.3d at 513 (citing Westbrook, 231 S.W.3d at

398–400). These red lines are not at issue here, which is why the church-

autonomy doctrine does not bar consideration of the Conference’s claim.

The only question for a civil court will be whether the Conference in fact

has the authority that the articles of incorporation state or if, for some

other lawful reason that does not offend the church-autonomy doctrine,

SMU can nonetheless dislodge it. What will play no role is whether

SMU’s motivation for attempting to discard the Conference’s authority

was noble or base, was informed by the purest religious motives or the

least creditable, or was altogether uninfluenced by matters of faith.

To confirm all this, first consider whether the Conference’s case

against SMU requires ruling on a religious question. Though SMU’s

30

break with the Conference may have grown from a dispute over

Methodist ethics (despite the university’s protests to the contrary),

resolving the validity of the articles’ stated ownership or control of SMU

does not require selecting one exegetical approach over another, nor does

it require elevating one set of beliefs over another. No court will adjudge

one view of any religious question true or false.

Next ask whether resolving the case will threaten church authority

to manage internal affairs. Another easy no. All parties agree that the

Conference (a religious entity) owned SMU at one point in time. The

merits question is whether, in light of SMU’s unilateral attempt to break

away from the Conference, the Conference has any recourse to maintain

control over SMU. From that view of the facts and arguments, I see no

way in which reaching the merits question could “impede the church’s

authority to manage its own affairs.” Diocese of Lubbock, 624 S.W.3d at

509 (emphasis added). The opposite is true.

The case law draws a line between disputes that simply involve a

religious entity and those that threaten “government interference with an

internal church decision that affects the faith and mission of the church

itself.” Id. at 517 (citing Hosanna-Tabor, 565 U.S. at 190 (emphasis

added)). The Court is therefore right to recognize that, “far from

interfering with ecclesiastical matters,” the exercise of our jurisdiction

“respects and enforces” the Conference’s choice to structure SMU under

Texas corporate law. Ante at 10. That simple recognition makes this case

unlike, say, Diocese of Lubbock, where civil-court second-guessing of

internal church investigative procedures over clergy could have ended

with a hefty monetary judgment against the Diocese and in turn imposed

31

civil coercion on it regarding how it dealt with internal disciplinary

matters. Diocese of Lubbock, 624 S.W.3d at 517.

* * *

While courts should always approach questions that even

implicate religious practice with great humility and self-doubt, this case

is an example of when judicial inaction would undermine the larger

principle of church autonomy. Because a court will not need to answer

any religious question to decide the dispute, nor threaten to otherwise

interfere with church self-governance by hearing it at all, the church-

autonomy doctrine does not require dismissal. Dismissal is what would

jeopardize church autonomy. Refusing to recognize the Conference’s

authority over SMU—or, more precisely, refusing to allow the Conference

to try to prove that authority—would turn church autonomy on its head.

III

Finally, and briefly, I turn to the question that in the end may

prove most consequential: Given the Texas Constitution’s distinct

language and history, is its church-autonomy doctrine meaningfully

different from its federal counterpart? As with other important

constitutional guarantees, the answer is: “We still do not really know,

even as we approach the sesquicentennial of our current Constitution.”

Tex. Dep’t of State Health Servs. v. Crown Distrib. LLC, 647 S.W.3d 648,

664 (Tex. 2022) (Young, J., concurring).

Like the due-course clause in § 19 of the Bill of Rights at issue in

Crown Distributing, the freedom-of-worship provision in § 6 remains

unchanged since February 15, 1876, when the Constitution took effect.

Yet our church-autonomy cases are exclusively federal in character, with

32

only occasional references to our own Constitution. Chief Justice

Blacklock, for example, has observed that “[b]oth the Texas Constitution

and the United States Constitution compel judges to acknowledge that

there are places where our imperfect judicial system does not belong,

places where earthly judges have no power.” Diocese of Lubbock, 624

S.W.3d at 520 (Blacklock, J., concurring). That case did not offer the Court

any opportunity to explore how those two constitutions might differ.

Chief Justice Phillips has explained why our understanding of the

Texas Constitution’s religious-liberty provisions remains underdeveloped:

Because [the relator] has not argued persuasively for a

different application of the provisions of the First

Amendment and Article I, Section 6 as they pertain to the

free exercise of religion, we assume without deciding that

the state and federal free exercise guarantees are

coextensive with respect to his particular claims . . . . While

interesting developments are occurring in state religion

clauses in other jurisdictions, we are reluctant to decide an

issue as important as the scope of the Texas Constitution’s

free exercise guarantee under these circumstances.

Tilton v. Marshall, 925 S.W.2d 672, 677 n.6 (Tex. 1996) (citing Neil

McCabe, The State and Federal Religion Clauses: Differences of Degree and

Kind, 5 St. Thomas L. Rev. 49 (1992)). Nearly thirty years later, those

“circumstances” are unchanged. We have not had litigants accept Chief

Justice Phillips’s implied invitation—one that I extend again today.

To the varying extent that the parties and amici in this case have

discussed church autonomy, they (as in past cases) have proceeded as

though federal law and state law are identical in their potential to protect

the Conference’s religious autonomy from interference. And our cases

have uniformly and exclusively talked about “the First Amendment” in

33

church-autonomy contexts. See, e.g., Diocese of Lubbock, 624 S.W.3d at

509, 512–14, 516–19 & n.3; Episcopal Diocese, 602 S.W.3d at 420, 424,

426–29, 431, 435; Masterson, 422 S.W.3d at 596, 601–03; Pleasant Glade

Assembly of God, 264 S.W.3d at 2, 5–8, 13 (citing § 6 without discussion);

Westbrook, 231 S.W.3d at 394–97 & n.6, 399, 400–05.

It is not wrong, of course, to apply the First Amendment’s church-

autonomy doctrine, as our cases have done. The federal Constitution binds

the government of Texas, and its religious-liberty promises are fully

enforceable in our courts. But church autonomy is also an independent

principle arising from the Texas Constitution, and the federal Constitution

does not limit its scope so long as it violates no federal requirements.

There is reason to think that, compared to its federal analogue, the

Texas church-autonomy doctrine is at least as robust—and potentially far

more rigorous. In relevant part, the First Amendment forbids Congress

from making a law “respecting an establishment of religion, or prohibiting

the free exercise thereof.” U.S. Const. amend. I. The soaring text of the

Texas Constitution suggests an even more powerful commitment by our

People to leaving the high matters of religious self-governance and

doctrinal truth to religious communities:

FREEDOM OF WORSHIP. All men have a natural and

indefeasible right to worship Almighty God according to the

dictates of their own consciences. No man shall be

compelled to attend, erect or support any place of worship,

or to maintain any ministry against his consent. No human

authority ought, in any case whatever, to control or interfere

with the rights of conscience in matters of religion, and no

preference shall ever be given by law to any religious society

or mode of worship. But it shall be the duty of the Legislature

to pass such laws as may be necessary to protect equally every

religious denomination in the peaceable enjoyment of its own

34

mode of public worship.

Tex. Const. art. I, § 6 (emphases added).

Both with respect to prohibition (“No human authority”) and

affirmative protection (“the duty of the Legislature”), our Constitution

implies greater scope than its federal analogue. Moreover, our framers

were aware of the federal Constitution. Sometimes, as with the contracts

clause, they chose to copy its language almost verbatim. See City of

Baytown v. Schrock, 645 S.W.3d 174, 183 (Tex. 2022) (Young, J.,

concurring). Elsewhere, as with the takings clause, our framers

substantially expanded upon the federal language, presumably to generate

different results. Id. The freedom-of-worship clause in § 6 markedly

expands on its federal analogue, so it is at least plausible that the framers

and ratifiers of our Constitution anticipated substantially different and

more protective substantive outcomes. Particularly given that the First

Amendment had not yet been incorporated against the States by 1876, the

choice to not merely adopt the federal baseline but instead choose

ostensibly greater restrictions on government in the ecclesiastical sphere

should not be elided by reflexively conflating the First Amendment and § 6.

One specific potential distinction may—and I emphasize may—lie

in the extent of the church-autonomy doctrine’s jurisdictional consequences.

In Hosanna-Tabor, for example, the Supreme Court emphasized that “the

Religion Clauses ensured that the new Federal Government—unlike the

English Crown—would have no role in filling ecclesiastical offices.” 565

U.S. at 184 (emphasis added). Yet in the same case, the Court described

the ministerial exception (i.e., the aspect of the church-autonomy doctrine

at issue) as “an affirmative defense to an otherwise cognizable claim, not

35

a jurisdictional bar.” Id. at 194 n.4 (emphasis added). This Court has

stated that it will follow U.S. Supreme Court guidance with respect to

that question—although we have read that Court’s precedents more

aggressively than the Hosanna-Tabor Court itself might have,

emphasizing the clearly “jurisdiction[al]” holding in Watson instead. See

Diocese of Lubbock, 624 S.W.3d at 512 n.1.

But we have not yet considered whether, wholly aside from

wherever the U.S. Supreme Court leads, some matters treated as

“affirmative defenses” under federal law might be “jurisdictional bars”

under the Texas Constitution’s more rigorous structural limitation. In

other words, compared with how the U.S. Supreme Court views the First

Amendment, our Constitution may more resolutely preclude courts from

engaging with litigation that would risk judicial tinkering with religious

decision-making. If so, there could be a heightened need for Texas courts

to guard against stepping into forbidden terrain even when the parties

treat it as within the civil court’s domain.

Such a result would have at least two significant consequences.

First, it would mean that some cases may well turn out differently under

the Texas Constitution. And second, it would mean that the failure to

develop the full meaning of the Texas Constitution’s church-autonomy

doctrine may be preventing Texas courts from obeying their mandate.

While it is more than ideal for parties to develop Texas constitutional

arguments within the course of litigation, and at the earliest possible

stages, some requirements of our Constitution may constrain courts

whether parties invoke them or not. See supra Part II.A.3 (describing why

waiver and forfeiture are, at least in part, inapplicable in this context).

36

Given these possibilities, and looking to future cases, I therefore

hope that litigants will resist the “almost routine” pattern of assuming

that the protection afforded by federal and state constitutional provisions

must be coterminous. City of Baytown, 645 S.W.3d at 184 (Young, J.,

concurring). It is disquieting to think that the failure to consider the vivid

language in our own Constitution could lead courts to decide questions or

whole cases that are beyond their authority. The sooner we have high-

quality assistance, the better. I hope, therefore, that amici—like the two

excellent friends of the Court that have participated in this case, and

many others—along with the bar, the academy, and all other interested

parties on any side, will help us determine the church-autonomy contours

flowing from the original public meaning of § 6 of our Bill of Rights.

* * *

To be clear, I do not purport to resolve the extent of § 6’s possibly

unique protections. Suspicions aside, I can only speculate that the facial

textual differences between that provision and the First Amendment hint

at such a delta. I remain open to any possibilities, including that, in the

end, perhaps there will be no material differences between the two under

current law. If, for example, the U.S. Supreme Court’s religion-clause

jurisprudence has expanded the First Amendment’s church-autonomy

scope beyond what the framers of our Constitution would have expected,

then the practical gap between the two may have shrunk or even

disappeared. But it is not at all clear that this has happened or that they

are coterminous—even before taking newer provisions into account, such

as § 6-a’s religious-service provision, which the Court interpreted for the

first time earlier this month. See Perez v. City of San Antonio, ___ S.W.3d

___, 2025 WL 1675639, at *3–13 (Tex. June 13, 2025). With the benefit

37

of comprehensive briefing in future cases, I expect to form a firmer view.

IV

As a formal matter, today’s decision returns the case to the lower

courts for further proceedings. The Court holds only that § 22.207

allows the Conference to seek a judicial interpretation about the articles

of incorporation and, under the auspices of the same statute, to proceed

with its contract claim. In my view, the work of the courts on remand

will be quick, and I expect that the Conference’s rights will be fully

vindicated—if the case must proceed. In light of the Court’s clarifying

holding, however, I hope that it is not too late for these litigants to

reconsider. Must they settle what divides them in this way rather than

through some other kind of conciliation?

As my opinion today makes clear, most of those matters go beyond

my authority as a judge; if the litigation must continue, so be it. I cannot

help but express hope, however, that divisions of this sort can be repaired

by those who once walked arm in arm in unity of purpose without

recourse to the civil courts—courts that have the power to resolve

disputes and vindicate rights, and that will do so to the best of the abilities

of those who staff them, but that in so doing cannot help but tarnish with

earthly grime what should be holy.

Evan A. Young

Justice

OPINION FILED: June 27, 2025

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