You all know that Creationist Ken Ham has been working for a long time on getting his Noah’s Ark Theme Park (a.k.a. Ark Encounter) built.
Ham hit a major snag in December of 2014 when the state of Kentucky said Answers in Genesis was ineligible to receive a tax incentive worth up to $18,000,000.
The argument 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 wasn’t buying it. He claimed that state officials took away his rebate due to some sort of anti-Christian prejudice and eventually filed a lawsuit against the state.
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 today’s decision by a judge is shocking to those of us who follow church/state separation cases.
A federal judge ruled Monday that Kentucky officials violated the ark builders’ First Amendment protections by blocking it from the sales tax tourism incentive that could have been worth up to $18 million.
U.S. District Judge Gregory Van Tatenhove ruled the state’s Tourism Cabinet cannot exclude the ark attraction from the incentive based on its “religious purpose and message.”
Here’s the gist of what the judge said: Ark Encounter is promoting Christianity, no doubt about it. But that’s not the issue. The issue is whether the park is a legitimate tourist attraction, eligible for state funds. The judge felt it was, so the fact that the park promotes religion was irrelevant to him.
You can read the 71-page decision here, but here are the highlights:
… 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, though?
… 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.
Ham, as you might expect, is doing backflips over this:
“I rejoice in the court’s decision today,” said Ken Ham, AiG president and the visionary behind the theme park. “The state gave us no choice but to bring this legal action. We, along with our attorneys, tried for many months to show these officials why their actions were blatantly violating our rights under the federal and state constitutions, as well as the federal Civil Rights Act of 1964 and the Kentucky Civil Rights Act. The law is crystal clear that the state cannot discriminate against a Christian group simply because of its viewpoint, but that is precisely what happened here. The decision today is a victory for the free exercise of religion in this country, including in hiring.”
State officials haven’t said if they will appeal the decision, but remember that when the lawsuit began, the governor was Steve Beshear, a Democrat. The current governor is Matt Bevin, a Republican who thinks Kim Davis is awesome and the Obergefell ruling was a travesty. So the odds of fighting back aren’t looking too good…
In short, a Kentucky judge — who was appointed by President George W. Bush and once served as a legislative assistant for Senator Mitch McConnell — just found a way to make a Christian ministry eligible for tax incentives worth up to $18 million, all because it’s a tourist attraction ostensibly open to everyone.
I’m sure non-Christians everywhere can’t wait to visit.
Edit: I should point out that the ruling doesn’t mean the state is giving $18 million to Answers in Genesis. It just says the state can’t exclude Answers in Genesis from applying for the tourism rebate:
The Commonwealth of Kentucky and its Tourism, Arts, and Heritage Cabinet are enjoined from applying the KTD Act in a way that excludes AE, LLC from the program based on its religious purpose and message or based on its desire to utilize any Title VII exception for which it qualifies concerning the hiring of its personnel.
There’s still plenty Ham has to do to get the money, but the biggest obstacle (that it’s a religious ministry and therefore not eligible for funding) has been taken out of his way.
(Large portions of this article were published earlier)