A bill protecting churches from frivolous Covid lawsuits is working its way through the Missouri Legislature. Proponents say with recent amendments, it would provide the highest legal protection for houses of worship and expect it to pass.
The bill had previously been opposed by many because the standard for having brought a lawsuit was seen as too broad. The bill now raises the hurdle for liability for COVID-19 related lawsuits by protecting against unmerited civil actions against health care workers, first responders and small businesses. Additional provisions provide heightened protections for religious institutions from pandemic-related lawsuits.
Senate Bill 51 (SB 51) will raise the standard in which churches can be sued to one of “intentionality,” a much higher standard than “recklessness” or “negligence,” which were in earlier versions.
The bill language states:
No individual or entity engaged in businesses, services, activities, or accommodations shall be liable in any COVID-19 exposure action, as defined in the act, unless the plaintiff can prove by clear and convincing evidence that:
(1) The individual or entity engaged in recklessness or willful misconduct that caused an actual exposure to COVID-19; and
(2) The actual exposure caused personal injury to the plaintiff.
“The rule without SB 51 is that you might lose if you ‘mistakenly’ fail to comply with mandates and harm someone. ‘That’s negligence,’” said Jonathan Whitehead, a Kansas City attorney who specializes in First Amendment issues and serves as legal counsel for the Missouri Baptist Convention (MBC). “So, the new rule makes it harder to sue a church and win, because mistakes by members, visitors and third parties aren’t enough.
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“I’m not aware of any church getting sued for any kind of ‘exposure’ case, whether intentional or negligent. It’s near impossible to prove a particular exposure caused a particular case of COVID, unless the church confesses. And if they did sue a church for intentional misconduct, Missouri’s Religious Freedom Restoration Act would be a stronger protection against mandates than anything we could get put in this bill,” Whitehead said.
The “intentionality” standard requires a plaintiff to prove that a church “intentionally” gave them COVID, a standard most observers say is nearly impossible to prove. The original bill did not include “intentionality,” a move Don Hinkle, editor of the Missouri Baptist Convention’s Pathway newspaper and public policy advisor for the MBC, criticized as an attack on the Church. “The amendment that makes “intentionality” the standard improves the bill substantially and therefore, the MBC will not oppose its passage,” he said, adding that it would have been preferable to give churches immunity but that did not seem politically viable. He said that the convention has not spoken to the business aspects of the bill and urged business owners to contact their representatives with questions or concerns.
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At one point during Senate debate on the measure, some senators demanded that churches erect signs warning people about contracting COVID. Hinkle voiced opposition to the move. “The state has no authority to dictate any message of the Church of Jesus Christ,” he said. “The Church takes its messaging orders from God alone. A church may volunteer to do so, but the state cannot force it, according to the Missouri and United States Constitutions.” Missouri churches have widely supported Gov. Mike Parson’s call for precautions during the COVID pandemic, Hinkle noted.
The bill also provides necessary liability protection for Christian ministries and other religious non-profits in Missouri.
If SB 51 passes a final vote in the Senate, it will then go to the House. Protection from frivolous COVID-related lawsuits against businesses and health care workers is a priority with Parson. If passed, he is expected to sign the bill into law.
The Senate spent nearly 15 hours perfecting the bill in early February, marking the first lengthy filibuster in the upper chamber this session.