Reply Brief — Bethesda University, et al., Petitioners v. Seungje Cho, et al.

Supreme Court briefJan 13, 2025

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No. 24-530

In the

Supreme Court of the United States

♦

BETHESDA UNIVERSITY, ET AL.,

Petitioners,

SEUNGJE CHO, ET AL.,

Respondents.

♦

ON PETITION FOR WRIT OF CERTIORARI TO

THE COURT OF APPEAL OF THE STATE OF CALIFORNIA,

FOURTH APPELLATE DISTRICT, DIVISION THREE

♦

REPLY IN SUPPORT OF CERTIORARI

♦

Kelly J. Shackelford

Jeffrey C. Mateer

Hiram S. Sasser, III

David J. Hacker

Jeremiah G. Dys

Ryan Gardner

FIRST LIBERTY INSTITUTE

2001 W. Plano Parkway

Suite 1600

Plano, TX 75075

Dominic E. Draye

Counsel of Record

Nicholas P. Peterson

Andrew Y. Lee

GREENBERG TRAURIG LLP

2101 L Street N.W.

Washington, DC 20037

(202) 331-3168

drayed@gtlaw.com

January 13, 2025

Counsel for Petitioners

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................. i

TABLE OF CITED AUTHORITIES .......................... ii

INTRODUCTION ....................................................... 1

ARGUMENT .............................................................. 3

I. The Circuit Courts and State Supreme

Courts Are Divided on the Scope of

Ecclesiastical Abstention .................................. 3

A. Respondents Do Not Refute the Circuit

Split Over the Property Exception but

Suggest Adding Corporate Law as an

Additional Exception .................................. 3

B. Hierarchical Churches ............................... 7

II. This Case Is an Ideal Vehicle for Clarifying

the Scope of Ecclesiastical Abstention ............. 8

A. Bethesda Was Not the Plaintiff, and

Party Alignment Is Immaterial ................. 9

B. Non-Publication by a State Court Is No

Barrier to Certiorari................................. 10

C. This Is an Ideal Vehicle Implicating a

Non-Hierarchical Religious Institution

and a Non-Property Issue ........................ 11

CONCLUSION ......................................................... 12

TABLE OF AUTHORITIES

CASES

Burgess v. Rock Creek Baptist Church,

734 F. Supp. 30 (D.D.C. 1990) ................................ 8

Cha v. Korean Presbyterian Church of Wash.,

262 Va. 604 (2001)................................................... 4

Crowder v. S. Baptist Convention,

828 F.2d 718 (11th Cir. 1987) ............................. 4, 8

Dowd v. Soc’y of St. Columbans,

861 F.2d 761 (1st Cir. 1988) ................................... 4

EEOC v. Catholic Univ. of Am.,

83 F.3d 455 (D.C. Cir. 1996) ................................... 3

El-Farra v. Sayyed,

226 S.W.3d 792 (Ark. 2006) .................................... 4

Heard v. Johnson,

810 A.2d 871 (D.C. 2002) ........................................ 4

Henderson ex rel. Henderson v. Shinseki,

562 U.S. 428 (2011) ........................................... 9, 10

Hiles v. Episcopal Diocese of Mass.,

773 N.E.2d 929 (Mass. 2002) .................................. 4

Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. E.E.O.C.,

565 U.S. 171 (2012) ............................................... 11

Hutchison v. Thomas,

789 F.2d 392 (6th Cir. 1986) ................................... 3

Hutterville Hutterian Brethren, Inc. v. Sveen,

776 F.3d 547 (8th Cir. 2015) ..................... 4, 5, 6, 10

Lynce v. Mathis,

519 U.S. 433 (1997) ............................................... 10

iii

Marshall v. Munro,

845 P.2d 424 (Alaska 1993) .................................... 4

McRaney v. N. Am. Mission Bd.

of S. Baptist Convention, Inc.,

980 F.3d 1066 (5th Cir. 2020) ....................... 1, 4, 11

Meshel v. Ohev Sholom Talmud Torah,

869 A.2d 343 (D.C. Ct. App. 2005).......................... 4

Minker v. Balt. Ann. Conf. of United Methodist

Church,

894 F.2d 1354 (D.C. Cir. 1990) ............................... 4

Molina-Martinez v. United States,

578 U.S. 189 (2023) ............................................... 10

Myhre v. Seventh-Day Adventist Church Reform

Movement Am. Union Int’l Missionary Soc’y,

719 F. App’x 926 (11th Cir. 2018) ........................... 4

Old Chief v. United States,

519 U.S. 172 (1997) ............................................... 10

Our Lady of Guadalupe Sch. v. Morrissey-Berru,

591 U.S. 732 (2020) ............................................... 11

Piletich v. Deretich,

328 N.W.2d 696 (Minn. 1982) ................................. 4

Plumley v. Austin,

135 S. Ct. 828 (2015) ............................................. 10

Puri v. Khalsa,

844 F.3d 1152 (9th Cir. 2017) ....................... 4, 5, 11

Serbian E. Orthodox Diocese v. Milivojevich,

426 U.S. 696 (1976) ................................................. 2

Smith v. United States,

502 U.S. 1017 (1991) ............................................. 10

Watson v. Jones,

80 U.S. 679 (1871) ................................................... 8

Westbrook, Jr. v. Penley,

231 S.W.3d 389 (Tex. 2007) .................................... 4

Wipf v. Hutterville Hutterian Brethren, Inc.,

2012 S.D. 4 .............................................................. 5

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I .................................. 2, 8, 10, 11

U.S. Const. amend. XIV ............................................. 2

OTHER AUTHORITIES

Hon. Donna S. Stroud, Unpublished Opinions, 37

Campbell L. Rev. 333 (2015) ................................. 10

INTRODUCTION

The Pentecostal founders of Bethesda University

stand to lose their school because California courts

have declared that Presbyterians on the Cho Board

“subscribe to the theology consistent with Bethesda

University as is required of all Board members

pursuant to the Bylaws.” App. 37a. Because that

question is one of religious adherence, the courts

below lacked subject matter jurisdiction to secondguess the Kim Board’s contrary determination. As this

Court’s precedent and the ten amicus briefs filed in

support of certiorari confirm, Bethesda’s ability to

place religious conditions on Board membership

strikes at the heart of church autonomy. See Religious

Colleges Amicus Br. 8.

Respondents seek to avoid this Court’s review with

a blizzard of meritless vehicle challenges and a merits

argument that “corporation law” cannot possibly

implicate ecclesiastical abstention. Opp. 23. Their

frequent references to corporate law and corporate

documents—nearly 100, by Petitioners’ count—

attempt to obscure the basic issue in this case:

“personnel is policy.” McRaney v. N. Am. Mission Bd.

of S. Baptist Convention, Inc., 980 F.3d 1066, 1067

(5th Cir. 2020) (Ho, J., dissenting from denial of

rehearing). However sterile “corporation law” might

sound, there is nothing neutral about the selection of

a religious organization’s leadership. Here, Bethesda’s

Board decides whom to hire, what to teach, and how

to form the young people in their university in

accordance with their religious doctrine and

convictions. There is nothing neutral about that work.

The California courts’ willingness to decide the

question of Board membership reflects a mistakenly

expansive view of the “neutral principles” exception.

This Court and others have cabined that exception to

property cases. Pet. 19–28. Respondents would extend

it to corporate governance, either outright or because

religious organizations own property. Opp. 22–23.

That position might make for interesting merits

briefing, but it does not resolve the division among

lower courts and State supreme courts. If anything,

Respondents offer further confusion by introducing

another alternative—no ecclesiastical abstention

where board members lead an organization that in

turn owns property. Id.

Nor do Respondents explain away the split among

lower courts regarding whether ecclesiastical

abstention extends to non-hierarchical churches. Pet.

28–35. They address almost none of the cases

Petitioners cite but rely instead on the fact that

“hierarchical” does not appear in the decision below.

Opp. 26. That, of course, does not prevent the Court

from ordering abstention in this case and thereby

resolving the uncertainty created by precedents

focused on hierarchical churches. See, e.g., Serbian E.

Orthodox Diocese v. Milivojevich, 426 U.S. 696, 724

(1976) (“the First and Fourteenth Amendments

permit

hierarchical

religious

organizations”

autonomy over their “government”).

Perhaps mindful that they cannot hide the

divisions over ecclesiastical abstention, Respondents

focus on vehicle challenges. They open their brief with

a strange objection to the caption, which comes

verbatim from the decision on appeal. App. 1a. They

then assert that Petitioners “brought this dispute” to

the civil courts, when in reality Petitioners filed

counterclaims in Respondents’ lawsuit. Opp. 15. And

they pin their hopes on the fact that the decision below

is unpublished, Opp. 18, even as that classification

does nothing to restrict this Court from deciding the

question presented. These vehicle arguments appear

designed to spook the Court into overlooking a

recognized circuit split and a lower-court decision that

offends both Religion Clauses. It is time for the Court

to revitalize ecclesiastical abstention.

ARGUMENT

The Circuit Courts and State Supreme

Courts Are Divided on the Scope of

Ecclesiastical Abstention.

A. Respondents Do Not Refute the Circuit

Split Over the Property Exception but

Suggest Adding Corporate Law as an

Additional Exception.

Although Respondents attempt to wave away

lower-court division over whether the “neutral

principles” exception applies in non-property cases,

they fail to engage with many of the cases Petitioners

cited. As more fully recounted in the Petition, in the

half century since this Court’s most recent cases

exploring this issue, many circuit courts and State

supreme courts have fallen on different sides of

whether the neutral principles exception applies

outside of the context of property disputes. Pet. 19–28.

Numerous circuits and State high courts have

declined to expand the neutral principles exception

and have aligned themselves with the Sixth Circuit’s

articulation that “[t]he ‘neutral principles’ exception

to the usual rule . . . applies only to cases involving

disputes over church property.” Hutchison v. Thomas,

789 F.2d 392, 396 (6th Cir. 1986) (emphasis added);

see, e.g., EEOC v. Catholic Univ. of Am., 83 F.3d 455,

465–66 (D.C. Cir. 1996) (declining to apply the

exception outside of the property context or to

entangle the court “in questions of religious doctrine,

polity, and practice”); Minker v. Balt. Ann. Conf. of

United Methodist Church, 894 F.2d 1354, 1358–59

(D.C. Cir. 1990) (same); Dowd v. Soc’y of St.

Columbans, 861 F.2d 761, 764 (1st Cir. 1988) (same);

Myhre v. Seventh-Day Adventist Church Reform

Movement Am. Union Int’l Missionary Soc’y, 719 F.

App’x 926, 927–28 (11th Cir. 2018) (same); Westbrook,

Jr. v. Penley, 231 S.W.3d 389, 399 (Tex. 2007) (same);

El-Farra v. Sayyed, 226 S.W.3d 792, 795–96 (Ark.

2006) (same); Hiles v. Episcopal Diocese of Mass., 773

N.E.2d 929, 935–37 (Mass. 2002) (same); Heard v.

Johnson, 810 A.2d 871, 880–82 (D.C. 2002) (same);

Cha v. Korean Presbyterian Church of Wash., 262 Va.

604, 615 (2001) (same); Marshall v. Munro, 845 P.2d

424, 428 (Alaska 1993) (same). Respondents try to

distinguish the Hutterville cases and Crowder v. S.

Baptist Convention, 828 F.2d 718 (11th Cir. 1987) by

pointing to lower court comments and speculative

dicta. Opp. 24–25. They otherwise make no attempts

to grapple with this wall of authorities.

And as for the other side of the split, Respondents

mention Puri v. Khalsa, 844 F.3d 1152 (9th Cir. 2017),

and correctly recognize it as favoring an expansive

view of “neutral principles.” Opp. 25. But that is

merely an endorsement of one side of the split, which

is a merits argument, not a denial of the split or an

attempt to explain it away. Respondents do not deny

the fact that multiple circuit court and State high

court decisions have disagreed with the limitation to

property cases and rejected ecclesiastical abstention

in favor of “neutral principles” to decide non-property

disputes. See, e.g., McRaney, 966 F.3d at 349; Meshel

v. Ohev Sholom Talmud Torah, 869 A.2d 343, 357

(D.C. Ct. App. 2005); Piletich v. Deretich, 328 N.W.2d

696, 701 (Minn. 1982). The division among these

authorities

persists

Respondents.

entirely

unrebutted

Deep in their brief, Respondents answer a strawman version of this division. They insist that there is

no split because no court “has held itself disabled from

adjudicating any dispute involving the structure or

governance of a religious corporation,” and courts

have not “categorically refused” to resolve corporatelaw issues involving religious organizations. Opp. 23

(emphases added). Of course not. Pure questions of

corporate law are still possible. The division arises

when a seemingly sterile question of corporate law

implicates religious membership or adherence.

When not distracted by straw men, Respondents

reiterate the division Petitioners and the ten Amici

identified. For example, they note (Opp. 25) the Ninth

Circuit case that views church governance as

“quintessentially” suited to civil adjudication. Puri,

844 F.3d at 1167; accord Pet. 24. On the other hand,

the Eighth Circuit and the South Dakota Supreme

Court recognized in related cases that civil courts

must abstain when “the governance issue is deeply

intertwined with the religious dispute of who is

properly a member of the true church and therefore

also a member of the colony and a voting member.”

Hutterville Hutterian Brethren, Inc. v. Sveen, 776 F.3d

547, 556 (8th Cir. 2015); Wipf v. Hutterville Hutterian

Brethren, Inc., 2012 S.D. 4, ¶24; Pet. 21–22; Opp. 25.

Respondents fail to appreciate that the Hutterville

scenario mirrors this case, but with a different

outcome on abstention.

Here, the issue is whether the Presbyterians on the

Cho Board can satisfy the Constitution and Bylaws’

requirement

“Pentecostal

Evangelical

perspective” and adhere to Bethesda’s 12-point

Statement of Faith. App 7a, 16a. The only way

Respondents get to a sterile question of “arithmetic,”

Opp. 2, is by assuming that the Presbyterians were

members of the Board and thus included in the

computation of a quorum. But that begs the question.

If they could not serve because they were not

Pentecostal, then there was, in fact, a quorum of

eligible Board members at the vote to revoke the

Presbyterians’ Board seats and terminate Respondent

Cho as President.1

Respondents’ merits argument that corporate

governance is a neutral question typifies the error in

numerous courts. It isolates a seemingly irreligious

question from an interwoven question of faith (e.g.,

the meaning of Bethesda’s Statement of Faith). As

Amici illustrate, that mistake might occur honestly,

but avoiding it is the very reason for ecclesiastical

abstention. See Manhattan Institute and Jewish

Coalition for Religious Liberty Amicus Br. 6–7

(whether swordfish have scales). The correct course is

for courts to abstain where a seemingly secular

question is “deeply intertwined with the religious

dispute.” Hutterville, 776 F.3d at 556.

1 Here, for the record, is the “arithmetic:” the Kim Board voted to

add six new seats, bringing the total to 17. App. 4a. Four of the

seats were filled by Presbyterians. Ibid. Realizing their error,

eight members of the Kim Board convened and invalidated the

election of non-Pentecostal Board members. App. 5a–6a. The

California courts found a lack of a quorum because eight is not a

majority of 17. App. 5a. But if the four Presbyterians were

ineligible to serve, then there were only 13 members, and eight

is a quorum. Thus, the arithmetic depends wholly on the

question of whether Presbyterians satisfy the religious

prerequisites for Board membership.

B. This Case Typifies the Different

Treatment of Hierarchical and NonHierarchical Churches.

A striking contradiction in the Brief in Opposition

is its denial that this case implicates the split over

non-hierarchical

churches,

Opp.

26,

while

simultaneously arguing that the case is a poor vehicle

due to alleged uncertainty over the “ecclesiastical

authority to which courts should defer,” Opp. i. In fact,

if Bethesda belonged to a hierarchical religion, the

courts below could have deferred to a local bishop or

church judicatory regarding whether Presbyterians

satisfied the criteria for Board service. But because

Bethesda was non-hierarchical, the California Court

of Appeal hazarded an answer itself, declaring that

“nothing in the Constitution and Bylaws prevents a

‘Protestant’ minister, or someone not of the

Pentecostal faith, from serving on the Board.” App.

14a. The Court of Appeal summarized Respondent

Cho’s testimony that “the key requirement for Board

members was not the church they belonged to” but

their commitment to “Pentecostal ideals”; the court

concluded that its reading of the Bylaws “supported”

this view. App. 17a; see also App. 4a (noting that the

trial court “interpret[ed] the governing documents”

and made “factual findings”).

Indeed, the trial court’s declaration that

Bethesda’s

constitution

and

bylaws

were

“unworkable” because there was no way to resolve

conflicts between competing factions reveals its

assumption that no deference is due to nonhierarchical religious bodies. App. 25a. Contrary to

this assumption, Bethesda had resolved the dispute

before the court improperly intervened. To their

credit, Respondents eventually recognize that “the

University board stood as its own authority on

religious issues.” Opp. 26. Petitioners agree and, on

the merits, will argue that the decision of the Kim

Board—the last Board whose legitimacy no one

questions—is the decision to which courts should

defer. That, of course, contrasts with the California

courts’ installation of the Cho Board on the premise

that the Bylaws “supported” Cho’s view that

adherence to “Pentecostal ideals” was sufficient. App.

17a.

The ultimate answer to that question, however, is

less important than clarifying that “[t]he distinction

drawn in Watson [v. Jones, 80 U.S. 679, 724–725

(1871)] between the types of congregational and

hierarchical church polities was relevant only to

determining the ecclesiastical body to which the civil

court must defer in determining rights to use of

property.” Crowder v. S. Baptist Convention, 828 F.2d

718, 726 n.20 (11th Cir. 1987). This concern also

applies to minority religions with which courts are

often unfamiliar. See Council on American-Islamic

Relations Amicus Br. 8–12. Circuit courts and State

supreme courts are far from uniform in their

approach, see Pet. 29–34, and “there is a dearth of

federal case law on whether civil courts should hear

lawsuits in which a congregational church is a party.”

Burgess v. Rock Creek Baptist Church, 734 F. Supp.

30, 31 n.2 (D.D.C. 1990).

II. This Case Is an Ideal Vehicle for Clarifying

the Scope of Ecclesiastical Abstention.

The bulk of the Brief in Opposition attempts to cast

this case as a poor vehicle. Those attacks rest on

incorrect factual assertions and legally meaningless

arguments. Nothing in this case’s posture or history—

or the much-discussed unpublished decision

steamrolling Bethesda’s First Amendment rights—

prevents the Court from ordering abstention in this

case and thereby resolving entrenched uncertainty in

the lower courts.

A. Bethesda Was Not the Plaintiff, and

Party Alignment Is Immaterial.

Bethesda University and the Kim Board did not

bring this case, and party alignment is immaterial to

the question of subject matter jurisdiction.

Respondents argue that Bethesda University

“insisted on obtaining the precise judicial ruling they

now claim the courts could not make” and that “[i]t

was petitioners who brought this dispute.” Opp. 15.

This is false. At trial, “[t]he complaint was filed by the

‘Cho Board.’” App. 30a. “The Cross-complaint was

filed by the ‘Kim Board.’” Id. Respondents are

disingenuous to state that Petitioners sought to bring

this case before the civil courts. Opp. 15.

Curiously, the first line of Respondents’ brief is:

“Petitioners are not ‘Bethesda University.’” Opp. 1.

But the caption comes verbatim from the decision on

appeal. App. 1a. And the reason the California courts

listed Bethesda University both “as plaintiff and as

cross-complainant” is that both parties purport to act

on behalf of Bethesda. App. 30a. In any event, the

caption is not an obstacle to review. Respondents’

focus on this non-issue only underscores the weakness

of their other arguments.

Most importantly, Respondents never argue that

the question presented is waived or estopped.

Objections to subject-matter jurisdiction may be

raised at any time. “Thus, a party, after losing at trial,

may move to dismiss the case because the trial court

lacked subject-matter jurisdiction . . . even if the party

had previously acknowledged the trial court’s

jurisdiction.” Henderson ex rel. Henderson v. Shinseki,

562 U.S. 428, 434–35 (2011) (internal citations

removed). Petitioners argued on appeal that “the

superior court did not have subject matter jurisdiction

to decide Bethesda’s religious leadership.” App. 55a.

Whatever the party alignment or arguments

presented below, this Court may review lower courts’

unconstitutional exercise of jurisdiction.

Respondents’ argument that the judgment below

has independent state grounds also falls short. Opp.

17–18. The First Amendment divests California

courts of jurisdiction over claims that depend on the

composition of a board with religious criteria. See n.1

supra; Hutterville, 776 F.3d at 556.

B. Non-Publication by a State Court Is No

Barrier to Certiorari.

Respondents also complain that the opinion below

was unpublished. Opp. 18. That classification might

matter for California procedure, but it does not

restrain this Court. The Court regularly reviews

unpublished opinions. See, e.g., Molina-Martinez v.

United States, 578 U.S. 189 (2023); Lynce v. Mathis,

519 U.S. 433 (1997); Old Chief v. United States, 519

U.S. 172 (1997); Hon. Donna S. Stroud, Unpublished

Opinions, 37 Campbell L. Rev. 333, 340 n.20 (2015)

(“[T]he Supreme Court has granted review of a

number of unpublished opinions, so the unpublished

status of a case certainly does not always protect an

opinion from review.”). In fact, when lower courts

violate constitutional rights in an unpublished

decision, that is a “reason to grant review.” Plumley v.

Austin, 135 S. Ct. 828, 831 (2015) (Thomas, J., joined

by Scalia, J., dissenting from denial of certiorari).

“Nonpublication must not be a convenient means to

prevent review.” Smith v. United States, 502 U.S.

1017, 1020 (1991) (Blackmun, J., dissenting).

C. This Is an Ideal Vehicle Implicating a

Non-Hierarchical Religious Institution

and a Non-Property Issue.

The Court has recently reinforced one form of

ecclesiastical abstention, namely the ministerial

exception. See Our Lady of Guadalupe Sch. v.

Morrissey-Berru, 591 U.S. 732 (2020); Hosanna-Tabor

Evangelical Lutheran Church & Sch. v. E.E.O.C., 565

U.S. 171 (2012). But the lower courts’ unconstitutional

broadening of “neutral principles” undermines the

broader doctrine in cases involving ecclesiastical

matters like religious board positions, Puri, 844 F.3d

at 1162, and church governance, McRaney, 980 F.3d

at 1069.

Here, the trial court sua sponte entered an

injunction not only installing non-Pentecostal Board

members to govern Bethesda but also ordering those

Board members to redraft the University’s

constitution and bylaws. App. 23a–25a. That is an

affront to both the Free Exercise and Establishment

Clauses of the First Amendment. It also makes this

case an ideal vehicle for confirming that “neutral

principles” is a limited exception for property cases,

not an invitation to remake religious institutions into

more “neutral” corporate entities.

The First Amendment protects sincere believers

like those who founded Bethesda and enshrined

religious criteria in its foundational documents. The

California courts’ willingness to interpret those

criteria for themselves, water them down, and order

that the documents be rewritten strikes at the core of

the Religion Clauses. This Court should take the

occasion to restore the ecclesiastical abstention

doctrine to its central place under the First

Amendment.

CONCLUSION

The Court should grant the Petition.