Written by Don Byrd
Newly elected Governor Matt Bevin (R-KY) announced the state of Kentucky will not appeal a judge’s ruling that tax subsidy benefits cannot be denied the Ark Encounter theme park, despite the park’s discrimination in hiring based on religion. The state previously denied the request from creationist advocate Answers in Genesis (AiG) for tax incentives to build a tourist attraction based on the biblical story of Noah’s Ark. The park “advances religion,” in a way that disqualifies it for taxpayer funds, the state ruled.
In a lengthy opinion siding with AiG, which filed a lawsuit last year challenging the state’s decision, a federal judge ruled that concerns about advancing religion in this case did not threaten the constitutional separation of church and state, and that to deny Ark Encounter funding that is available to secular entities as tax incentives amounts to religious discrimination forbidden by the Free Exercise clause of the First Amendment.
Here is an excerpt from the decision (via Religion Clause):
Because the KTDA is neutral, has a secular purpose, and does not grant preferential treatment to anyone based on religion, allowing AiG to participate along with the secular applicants cannot be viewed as acting with the predominant purpose of advancing religion.
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We must keep in mind that AiG’s proposed project is an amusement park centered on the Biblical story of Noah’s Ark, but it is not a non-profit or a church. If the Ark Project meets the stated criteria for participation in the program, then by definition it is a tourist attraction, and as such, clearly has an entertainment element as well as a religious component. 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.
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[T]he Commonwealth admits that it denied AiG’s application because of AiG’s religious beliefs, evangelical message, and desire to hire those who agree with its religious views. Such action is essentially employ[ing] the taxing power to inhibit the dissemination of particular religious views,” which is unconstitutional because it discourages AiG’s First Amendment rights of religious expression. Therefore, even if AiG is not actually prohibited from expressing its religious views, denying a potential tax benefit because the claimant engages in certain kinds of speech “is in effect to penalize them for such speech.”
The Commonwealth has forced AiG to choose between expressing its religious views on its own property at the theme park and receiving the tax rebate under the KTDA. . . . Here, because of their religious activity, AiG is being denied an equal share of the benefits and privileges enjoyed by the other applicants.
The Courier-Journal reports on the decision.
