AIC Recommendations Create Hidden Legal and Financial Risks

This Is What Ruling Elders Have Not Been Told

By RE Yvonne K. Chapman and RE Robert Flores¹

If the General Assembly adopts the recommendations of the Ad-Interim Committee (AIC) to permit the ordination of celibate homosexuals, it will have profound legal and financial consequences for churches in the EPC. These concerns are not addressed in the AIC final report or in any of the proposed documents that will be presented during the 46th General Assembly. In this article, we will examine the hidden costs and consequences of accepting the AIC recommendations. This article is for information only and does not constitute legal advice; always consult a qualified attorney for advice specific to your church.

Ruling Elders, in particular, must be mindful of our fiduciary duties to our congregations and our responsibility to perform due diligence when considering the business of governance in our Sessions, Presbyteries, and on the floor of the General Assembly.

We hope all Ruling Elders will become aware of the repercussions of the AIC recommendations which may expose your church to costly litigation. As fellow Ruling Elders, we want to inform you of the ramifications of potential lawsuits and harm to the reputation of your church and to the EPC.

We further hope that all will take to heart the admonition to “avoid foolish controversies, genealogies, dissensions, and quarrels about the law, for they are unprofitable and worthless.”² Even if you think the AIC recommendations are appropriate, remember your brothers and sisters in Christ. Think about all the churches in the EPC and consider the ethics of creating a divisive situation that can put any of our churches, their membership, and their missionaries in legal and financial jeopardy.

Consequences due to erosion of the ministerial exception doctrine

For decades the United States Supreme Court has provided protection to religious organizations through what it calls the ministerial exception doctrine. This legal protection falls under the First Amendment’s establishment and free exercise provisions³ and prevents the State and the courts from interfering with an employment relationship between churches or religious associations and their ministers and other ministerial employees; the ministerial exception pertains to and protects the internal governance of the church.⁴ The Supreme Court has stated that:

Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.⁵

Due to developments in the secular culture, a little over a decade ago Sessions within the EPC were tasked with updating and developing policies necessary to reinforce the ministerial exception against claims of discrimination in employment. These policies, pertaining to paid staff as well as volunteers in church ministry, were founded upon the Holy Scriptures and the Westminster Confession of Faith. At the time, these policies were founded also on positions then declared by the EPC.

Because the ministerial exception is not limited to the minister or pastor of a religious congregation⁶ but applies to all employees — as well as volunteers with ministerial roles — church policies should specify which job duties of employees or roles of volunteers fulfill a ministerial role (religious function), such as:

• Leading congregants, adults and/or children, in prayer;
• Teaching Bible studies and devotions;
• Attending and participating in church services;
• Leading worship music (song leader, musician, singer, adult and children choir directors, etc.);
• Volunteers and leaders of Vacation Bible School and other children’s ministry activities;
• Evangelical outreach to the community; and
• Otherwise carrying out the religious mission of the church.

In order to fortify the ministerial exception, clearly developed church policies and handbooks will include descriptions of these ministerial roles in employment contracts, acknowledged by the employee, and will require staff and volunteers to sign a statement of faith and adhere to a code of Christian conduct as conditions of employment and participation as volunteers in church ministries.

While the civil courts traditionally decline to impose a test in determining whether a ministerial exception applies, they will consider a variety of factors in determining whether a specific position falls within the exception. Some factors considered by courts are found in the policies and practices adopted by an individual church, such as those described above.

It may seem clear, under both the ministerial exception doctrine as well as the current EPC Constitutional documents, that an individual church decides who is or is not a suitable candidate for ordination and who it may hire or accept as volunteers in ministry.

However, if the AIC recommendations are approved by the General Assembly, it may cloud that assumption. An additional factor a court may consider in determining whether a ministerial exception applies in a particular case is the EPC’s position on who may be a suitable candidate for ordination or other positions of employment or leadership within a church.

Although the AIC attempts to differentiate a repentant homosexual who claims celibacy but continues to desire relationships with the same sex from the non-abstaining practicing homosexual, the federal discrimination laws make no such distinction. Persons who identify as same-sex attracted are homosexuals. If the Assembly passes the AIC recommendations, in the eyes of the government, we are ordaining homosexuals.

Consider the following:

What happens if the EPC changes its previous position to permit the future ordination of a candidate who the church previously considered unsuitable, pursuant to the formal written policies and long-standing practices of that church? That change will likely become the basis for litigation if the church does not ordain and hire an individual who was once considered unsuitable by the EPC, but the church could now hire without violating the EPC’s canon law.

What if the EPC, in the course of acknowledging progressive secular practices, established a working group which declared: Church Sessions and regional Presbyteries may consider for hiring and ordination as Pastors and Elders candidates who have continuing desires of sexual attraction to their same sex?⁷ Even if Federal law might still provide some protection, state courts might allow a Plaintiff who was not hired to bring a lawsuit and engage in discovery. And because discovery is extremely expensive and could involve time to review and produce thousands of documents, merely requiring the church, presbytery, and EPC to disclose internal documents relevant to decision making and debate to determine whether the decision in the case of the rejected applicant was merely a pretext designed to hide discrimination could bankrupt a church.

What if a majority of the voting members of the EPC approve the revised posture reflected by the working group in its publications, and amends the EPC’s governing documents to permit ordination of the candidates considered unsuitable by some member churches and presbyteries?

What if an individual church declines to hire the unsuitable candidate? The candidate might be able to seek redress before the EEOC and then the Courts. [The EEOC Compliance Manual unquestionably would be referred to/used by such individuals to challenge adverse decisions.]

What if a presbytery within the EPC declines to ordain those considered unsuitable candidates but another presbytery would permit such ordination?

Such a situation would put the EPC and presbytery at odds with each other, raising governance questions that are much more likely to be entertained by a court because the questions do not deal with religious belief, but with whether the EPC’s rules are being followed by those it governs.

Can a church or a presbytery which declines to embrace the new governance within the EPC successfully defend itself against litigation brought by a candidate seeking ordination and employment? The answer to this question is that a successful defense can be determined only after the costly litigation is concluded.

What is the financial cost of this litigation, which can be (and has been) substantial; the cost to the reputation of the church, presbytery, and EPC; the cost to the membership of the church? Can EPC churches obtain reasonably priced liability insurance covering negligent selection/retention/supervision litigation? Does it stop there? Once the EPC decides that ordaining homosexuals as officers is permitted by the Holy Bible, it is a small step to have homosexual staff and volunteers in children’s ministry.

The AIC’s recommendations erode the ministerial exception and may expose congregations who choose not to ordain unsuitable candidates to potential liability.

As noted above, the AIC recommendations open the door not only to candidates for Teaching Elders who claim to meet its new ordination standards, but to individuals who seek employment for all other positions in a church and others who seek to serve in volunteer roles in ministry. Moreover, since the AIC changes are not definitive and the meaning of words are not capable of being understood with mathematical precision, the EPC, its presbyteries, and their member churches should prepare to consider applications from people who believe they are qualified to be hired under the AIC proposals but who are unsuitable.

Ruling Elders who believe that the AIC proposal is limited and presents an “eye of the needle” entrance to ordination or hiring must remain mindful of their fiduciary duty to recognize that, regardless of the reasons for not hiring a homosexual applicant, a good faith decision is not a bar to litigation and legal claims once the new standard is approved.

Simply put, a homosexual candidate who is not ordained or hired will be able to bring a complaint to the Equal Employment Opportunity Commission (EEOC). And if the EEOC refuses to sue the church on behalf of the candidate, the EEOC could provide the individual with a Right to Sue Letter. This Letter allows the candidate to sue the church in Federal District Court. Commissioners to the 46th General Assembly should understand that when a case is brought by the EEOC against an employer, the case is much more expensive because the EEOC has the benefit of limitless resources paid for by the taxpayer — not the litigant.

Employment discrimination lawsuits take years to resolve, even if settled, and can easily cost in excess of $500,000. Church liability insurance may cover some of the cost, but the congregation will be responsible for the difference. Defense lawyers charge hourly fees and firms require payment of monthly invoices which include legal fees as well as litigation expenses.

With insurance costs already skyrocketing and insurers dropping coverage entirely, Ruling Elders have a fiduciary duty to determine whether to expose their church to these costs — costs that will be paid by funds that could be spent on foreign missions, church planting, and financial compensation for ministry staff who usually work for much less than their education and experience would command in the private sector.

Two additional hidden (unintended) consequences

1. Missionaries

For four and a half decades, the EPC has employed various means to shield the identities/assigned locations for those commissioned as missionaries to protect them and their families. This has been especially the case for those assigned to non-Christian countries, where groups like ISIS, Boko Haram, or al-Shabaab were/are present.

Ruling Elders meeting their fiduciary duty must consider the costs and risks to foreign mission staff that work in Muslim countries. If it should become known that the missionary belongs to a denomination that affirms homosexual clergy, it could expose EPC missionaries and their families — especially nationals who are already at risk from simply converting to Christianity — to heightened safety risks. These risks could result in the need to purchase additional insurance, as well as underwrite the costs to develop and initiate plans to deal with kidnappings, assaults, and arrests — along with the difficulty and legal costs should EPC missionaries be prosecuted. These are not illusory costs.

The AIC offers no evidence that it engaged missionaries over the two-year period of its work, nor that it even considered the impact of its progressive SSA recommendations on EPC missionaries’ work and their families, abdicating its own fiduciary responsibility. Given this void, should the 46th GA approve the recommendations of the AIC?

2. Continuing viability of the EPC and its churches

Already, the work of the AIC has resulted in the resignation of EPC members and church withdrawals. Conclusions reached by the AIC prompted five (5) presbyteries to offer overtures⁸ in opposition to the AIC SSA recommendations. Has the AIC considered how many red line⁹ members and churches the EPC will lose if its divisive recommendations are adopted? How many churches/presbyteries will no longer be viable?

Conclusion

If a majority of the General Assembly approves any recommendation proposed by the AIC, the churches that decline to ordain homosexuals who profess celibacy as Teaching Elder, Ruling Elder, or Deacon could face costly litigation. These are the churches who have long considered homosexuals unsuitable candidates because Scripture does not differentiate a practicing homosexual from a non-practicing one who continues to desire same sex relationships. These are the churches that joined the EPC when it supported their beliefs.

The AIC position will not strengthen the witness of EPC. The AIC position will not promote unity within the EPC or between presbyteries.  Like a small crack in a large dam, approval of the AIC position could unleash a flood of costly litigation for the church. The reputational harm to EPC churches and presbyteries will be immense. Ruling Elders must consider whether supporting the conclusions of the AIC will build up the EPC or cause harm and damage.

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¹ Yvonne Chapman (RE, Central South Presbytery) and Robert Flores (RE, Presbytery of the East) are both attorneys with litigation experience. RE Flores’ law firm successfully represented defendant World Vision in the lawsuit referenced below; RE Chapman served on the Permanent Judicial Commission (PJC) from 2017-2023 as was the PJC’s Moderator from 2019-2023.

² Titus 3:9.

³ The First Amendment reads, in part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof … ”.

⁴ “Freedom to select the clergy (by churches and religious associations), where no improper methods of choice are proven, we think, must now be said to have federal constitutional protection as a part of the free exercise of religion against state interference.” (Parenthetical added). See Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church, 344 U.S. 94, 116 (1952). The ecclesiastical abstention doctrine established in Kedroff evolved into the ministerial exception doctrine after several laws recognizing civil rights in employment were passed by Congress.

⁵ See Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171, p. 188 (2012), a unanimous decision by the U.S. Supreme Court. See also McMahon v. World Vision Inc., 24-3259 (August 5, 2025) and Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. 732 (2020).

⁶ See Hosanna-Tabor, p. 190.

⁷ “Additionally, we affirm that ‘Courts may consider for ordination candidates whose ongoing experience of SSA is a corrupted sin nature unindulged, repented of, and mortified; a temptation not entered into, but rather fled; a weakness not embraced, but rather mourned as they rest upon the grace and strength of the Lord.’ (e.g. Pastoral Letter, page 9-10, “Our Counsel to Pastors, Sessions, and Presbyteries”; Book of Government recommendations), AIC Final Report of the Ad-Interim Committee on Same-Sex Attraction and Ordination Standards, p. 3.

⁸ https://epconnect.org/ga/ga2026documents/#overtures

⁹ https://sites.google.com/view/epcopenletter/redlinestatement