Kentucky has a legal right to exclude the Ark Encounter from tax programs

Kentucky has a legal right to exclude the Ark Encounter from tax programs January 25, 2016


In Monday’s ruling by Judge Greg Van Tatenhove of the U.S. District Court for the Eastern District of Kentucky, stating the State of Kentucky was in violation of federal law when they denied Ken Ham’s Ark Encounter from taking part in the Kentucky Tourism Development Program, the judge made a major error in his decision.

In the 2004 Supreme Court ruling in Locke v. Davey, the court ordered that states had a right to exclude religious institutions if the state had a “substantial interest” in denying the organization enrollment.

The judge stated in his decision 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.”

This clearly ignores the Supreme Courts 2014 ruling that should be applied to this case when the Tourism Board decided to exclude the Ark Encounter after it was discovered that they had violated both state and federal hiring laws.

Judge Tatenhove believes the park has every right to discriminate, calling the park a ministry in his ruling. “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,” the judge wrote.

One issue with the court’s ruling, however, is that it continues to apply its hiring ruling to Answers in Genesis (AiG) and not the Ark Encounter. The Ark Encounter, unlike the nonprofit AiG, is a for-profit business and not a ministry. Something the judge did not seem to take into consideration during his ruling.

Given the judge clearly did not do his homework when siding with Ken Ham’s argument, the Commonwealth has a case to be made if they choose to appeal.

Sadly, the likelihood of them filing an appeal is slim since the election of Matt Bevin as the state’s governor. Bevin stated on the campaign trail that he supported the Ark Encounter being awarded the tax incentive.

The ruling does not immediately mean that AiG is getting the $18 million incentive. It simply means they have to apply for it again and their application will be moved forward.

The $18 million incentive is based on the amount of visitors that AiG claims the park will get in a given year, 1.2 million people. However, an independent survey of the project by Chicago’s Hunden Strategic Partners puts the visitor totals at around 320,000. A Far cry from 1.2 million.

The state will also have the ability to deny the park, again, based on a number of factors. A still unlikely scenario, given Bevin’s support, but still a possibility once the Tourism Board has another look at the application.

This is a disheartening decision, but remembering that Ken Ham will never see $18 million because the park will never be approved for that kind of money given the audit will, at least, let us know we can minimize the damage done to the state if they decide not to pursue legal action.

Americans United for the Separation of Church and State has said they will look at their legal options should the state pass on the appeal.

[Image: Ark Encounter]

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