Stanley Carlson-Thies

Is it an unconstitutional establishment of religion if the state of Kentucky allows Ark Encounter, a biblical theme-park-in-the-making, to participate in the state’s tax incentive program designed to boost tourism and thus the state’s economy? On Jan. 25, 2016, a federal judge rightly ruled that it isn’t: what would violate the Constitution is to exclude Ark Encounter for allegedly being “too religious.”

The state’s Kentucky Tourism Development Act created a tax incentive program intended to promote tourist destinations and thus the local and state economies. Ark Encounter’s parent company, Answers in Genesis, was assured in 2011 that Ark Encounter qualified for the tax program, which has assisted a range of other projects, including “multiple bourbon visitor centers,” as the judge observed in his decision. But in 2014 Kentucky officials withdrew their support, claiming that the proposed theme park had been changed into a too-religious extension of the Answers in Genesis biblical ministry and that the State was not allowed to fund religion. Ark Encounter sued to reverse that rejection.

As the judge stressed in overruling the state’s exclusion, the tax incentive program is open to any and all tourism projects that meet its non-religious criteria. No endorsement is meant or can be interpreted from the approval of a project, whether one showcasing Noah’s ark or a different one featuring a Kentucky bourbon. And, of course, no tourists would be forced to visit Ark Encounter nor to agree with any religious messages they might hear. The State is required to be neutral between religion and secularism, not to be hostile to religion. And while it would be unconstitutional for Kentucky to create a program to support the building of churches, Ark Encounter fit all the criteria of a tourist attraction, not a church. What the prohibition on a government establishment of religion rules out is what Kentucky officials did: troll through comments and documents to determine whether Ark Encounter matched the officials’ template of an organization that is safely not too religious.

Many Americans are religious, and diversely so. Not surprisingly, many of the organizations they create or are drawn to, whether for-profits and nonprofits, are also shaped by religion. That is so in higher education, k-12 schools, child care, drug treatment, hospitals . . . and tourist destinations. For a tax incentive program designed to promote tourism to uniquely ban religious theme parks would be the opposite of the neutrality that must rule government’s action.

Interestingly, and importantly, the judge specifically ruled that Ark Encounter’s policy only to hire people compatible with its religious beliefs was no barrier to state support of the theme park. That is: religious hiring by religious organizations, which is protected under the 1964 Civil Rights Act, does not become illegal just because the religious organization receives government financial support. And note: this religious organization—Ark Encounter—is a business, not a nonprofit.

For more on religious staffing, browse the resources on the IRFA website, including The Freedom of Faith-Based Organizations to Staff on a Religious Basis, by Carl Esbeck, Stanley Carlson-Thies, and Ron Sider (Center for Public Justice, 2004), and the 2014 update “Major Religious Hiring Cases Since 2004,” by Krista Pikus and Stanley Carlson-Thies.