After Losing Battle Against Noah’s Ark Theme Park, Kentucky Officials Pay $190,000 Legal Bill

Earlier this year, a Kentucky judge ruled that the Ark Encounter theme park was indeed eligible for an $18 million tax incentive from the state, despite being a religious ministry. And now the state has paid the bill for challenging that idea in court.

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A little background for you: Creationist Ken Ham hit a major snag in December of 2014 when Kentucky officials said his Answers in Genesis ministry was ineligible to receive that tax incentive.

The argument from the state went like this: Ark Encounter — a for-profit business — was discriminating in its hiring. That might have been okay for their non-profit ministry, but it was not okay for a business that wanted the tax incentive.

Ham fought back by saying state officials deprived him of the rebate due to some sort of anti-Christian prejudice and eventually filed a lawsuit.

Last March, lawyers for the state of Kentucky filed a motion of their own to dismiss Ham’s lawsuit. They said giving him the tax incentive would be a violation of church/state separation:

Even if the allegations in Plaintiffs’ Complaint are taken as true, Plaintiffs’ claims fail as a matter of law. The majority of the Complaint’s factual allegations are immaterial or implausible. Providing the public funding sought for religious purposes in this multi-count Complaint would constitute an unlawful establishment of religion under the federal Constitution and the more demanding Kentucky Constitution.

Further, the denial of public funds to Plaintiffs reflects no hostility toward Plaintiffs’ faith — and as a matter of law, there has been no violation of the Free Speech Clause, Plaintiffs’ Right of Expressive Association, the Free Exercise Clause, the Equal Protection Clause, or the Due Process Clause.

The Ark Park was going to be built either way, but without the tax incentive, there were a lot of questions about how Answers in Genesis was going to pay for it.

That’s why U.S. District Judge Gregory Van Tatenhove‘s decision in January was so shocking to those of us who follow these kinds of legal battles. He said the state’s Tourism Cabinet couldn’t exclude Ark Encounter from the rebate just because of its “religious purpose and message.” It was a legitimate tourist attraction, therefore it was eligible for state funds.

Tourists will pay money in order to gain entrance into the theme park, people will buy food and drinks there, and while many may come hoping to learn something about the Bible, the park will likely attract people of all different viewpoints. The reasonable observer would not think that AiG’s participation along with other qualified applicants in a facially neutral tourism program has the predominant purpose of advancing religion, nor would a reasonable observer think that Kentucky is officially endorsing AiG’s Christian beliefs any more than a reasonable observer would believe that the Commonwealth is officially endorsing a particular type of bourbon or artwork because Maker’s Mark or Hotel 21C received the tax rebate.

If AiG meets all the neutral criteria of the program but is excluded solely because of its religious affiliation, message, or beliefs, then the KTDA [Kentucky Tourism Development Act] is not being applied neutrally.

Whether AiG meets the criteria in the KTDA is not the question before the Court. The Court finds that the Commonwealth’s exclusion of AiG from participating in the program for the reasons stated — i.e., on the basis of AiG’s religious beliefs, purpose, mission, message, or conduct, is a violation of AiG’s rights under the First Amendment to the federal Constitution.

What about the discriminatory hiring?

… the Ark project meets the statutory definition of an entertainment facility, and its religious mission alone does not bar it from receiving any public funds. Moreover, nothing in the KTDA mentions adherence to particular hiring practices. Because AiG likely qualifies for the ministerial exception under Title VII, it can choose to hire people who adhere to certain religious beliefs while still being in compliance with state and federal law as agreed in the application and without their hiring practices being attributed to the Commonwealth.

Which brings us to what happened yesterday: The State finally paid its bill for losing the court case. $190,000 to Answers in Genesis.

“We have complied with the final order in the case and the payment was made,” said Leigh Powers, general counsel for the tourism cabinet.

Even more taxpayer money went to a religious ministry. My issue isn’t with this payment, though; when you lose a court battle, you have to pay the legal bill for the other side. The problem is that a judge ruled this wasn’t a constitutional violation.

When the state is giving money to an organization that is building a giant replica of Noah’s Ark in order to convince people the Bible is literally true so that they’ll convert to Christianity, how is that not a government endorsement of religion? This may look like a theme park, but it’s no different from a megachurch. There’s no reason Kentucky taxpayers should have to pay for any of it, even as a tax rebate down the road.

(Large portions of this article were published earlier)

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