Originally published on Forbes.com.
There was no way I could pass up US District Court Judge Gregory F. Van Tatenhove’s decision in the Ark Encounter LLC case. I’m going to go out on a limb here and make the bold claim that I have covered Young Earth Creationism better than any other tax blogger. It has, of course, been pretty much all about the tax travails of Kent Hovind, but now we are on to something new.
The Ark
Ark Encounter will be opening July 7. It is a:
…one-of-a-kind, historically themed attraction. In an entertaining, educational, and immersive way, it presents a number of historical events centered on Noah’s Ark as recorded in the Bible. As the largest timber-frame structure in the US, the 510-foot-long full-size Ark is designed to be family-oriented, historically authentic, and environmentally friendly. Additional phases will be added over the years.
It is meant to be a sister attraction to the Creation Museum. The Ark will help visitors understand the reality of the events recorded in the book of Genesis:
The global Flood did happen as an act of God’s judgment. Noah and his family really did build a ship of the same size and dimensions as written in Genesis 6. All of the animals brought by God to Noah did fit inside the Ark. Noah and his family could care for all of the animals while they were on the Ark. The Flood of Noah’s day was a worldwide catastrophic event that resulted in large-scale human and animal death, leaving behind many of the plant and animal fossils and landforms we see today. God saved Noah and his family and the animals on the Ark, just as He had promised.
This is real important stuff, because much of the evidence that is used to support the notion of an earth that is over 4 billion years old rather than about 6,000 years old is explained by the Flood. If you have any questions about it you can email Kent Hovind. He has a bit of a backlog, but he will probably get to you in a couple of weeks or so.
Controversy
The big controversy about this project has been about whether it is OK to use state tax incentives to support this sort of mishegas. I mean if you want to believe that dinosaurs and people existed contemporaneously, you can listen to Kent Hovind or watch Flintstones cartoons.
The State of Kentucky doesn’t need to provide tax incentives. Only it did. At lease according to this list, Ark Encounter LLC is so far the largest project approved under the Kentucky Tourism Development Act. With a $43,125,000 maximum approved tax credit on maximum approved expenditures of $172,500,000 it is more than double the $82 million Kentucky Raceway and dwarf projects such as Rare Breeds Distilling LLC and the Brown-Forman Corporation’s expansion of a “bourbon distillery visitor’s experience”. Good whiskey and fast cars are important, but not as important as Bible believing.
There is an argument that the State of Kentucky is not really going out of pocket on these incentives. The mechanism for paying them is that the state kicks back to the developer sales tax paid by visitors on admission tickets, food and gift sales and lodging costs. So to the extent, people are going to Kentucky to see the magic ark instead of Florida to see the magic kingdom, Kentucky is only giving up tax revenue that it would not have had in the first place.
Establishment And Free Exercise
The reason the whole thing ended up in federal court was that the Kentucky Department of Travel and Tourism decided that it had to revoke the approval of the project’s subsidy, because it advanced religion in contravention of the Establishment Clause of the First Amendment. One particular concern was that they were only going to hire people who believed in the message.]Kind of an affirmative action program for the home schooled, I guess.
Judge Van Tatenhove ruled that Kentucky could not withdraw the credits on that basis. It is a complicated decision, but it illustrates the tension in the provisions of the First Amendment. The government is not supposed to “establish” religions by enacting programs that favor one religion over the other or even religion over irreligion. On the other hand, the government should not interfere with the free exercise of religion.
Ark Enconunter LLC was approved for the subsidy because it is believed that it will attract tourists to Kentucky where they will spend money. That is religiously neutral. The fact that they intend to promote religion should not help them in qualifying for the subsidies, but it should not hurt them either. That is the essence of the ruling.
The listed criteria required for qualifying projects to receive the incentive, are entirely secular, such as eligible costs, days of the year the project will be open, and the percentage of out-of-state visitors it is likely to attract; and such requirements do not address the content, subject matter, or religious affiliation of any of the projects. See Ky. Rev. Stat. § 148.853. Thus, the Act says nothing that could in any way be construed as granting a favor or preference to any religion.
It is the government’s purpose that must be secular, and therefore the KTDA must be neutrally applied to all applicants regardless of religious affiliation. If a particular religious group receives more favorable treatment than a secular group, or if a secular group receives more favorable treatment than religious groups because they are secular, such treatment would violate the Establishment 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.
Commentary
I think I’ll start with myself. I tend to think that incentives like this one are really bad tax policy. A really good thing would be for all states to enter into an agreement to refrain from them, since they threaten a race to the bottom. I don’t think very highly of young earth creationism, although I am less disturbed by it than many. The upside of YEC is that it actually gets some people to think. If you doubt that, check out Tony Reed’s How Creationism Taught Me Real Science series.
With all that said, I think the judge has it right on the constitutional issue. If you are going to give tax credits to get tourist to come to your state, it shouldn’t matter that you want them to go home and read their bibles rather than drive cars fast or drink more good bourbon.
Somebody who knows a lot more than I do about this, Edward Zelinsky of Yeshiva University has a similar view. He wrote me.
This controversy confirms the inadvisability of the kind of state subsidy being extended to the Noah Ark’s tourist attraction. Kentucky, by some measures, has the worst funded public pensions in the country. Under the best of circumstances, it makes no sense for Kentucky’s taxpayers to subsidize for-profit tourist attractions. And Kentucky’s public finances are hardly among the nation’s best.
If Kentucky is going to subsidize tourist attractions, the District Court is correct that the state must use neutral, secular criteria which neither favor nor disfavor religious applicants. But a misbegotten public subsidy, administered in a religiously neutral way, is still misbegotten
Americans United For Separation of Church and State disagrees with the ruling.
Van Tatenhove misses the point. The incentive program may be neutral, but the Ark Park is not. Its purpose is to convince people that AiG’s interpretation of the Bible is correct and that they should adopt it.
On the other hand AUSCS sees a possible upside, as, along with some religious people, they believe that state involvement might harm religion more that it helps.
Ham will likely gloat about his legal victory. What he fails to understand is that his efforts in court have only hastened the day when religion in America becomes a ward of the state. Far from striking a blow for religious freedom, Ham is merely helping to usher in the day when the faith he so claims to cherish is irrelevant, having been buried under a mound of government “help.”
The reaction at Eric Hovind’s Creation Today was celebratory and included pictures of the project – Religious Victory, Look What Kent Ham Just Sent Me!
Other Coverage
Newsweek has a story with more details on the tax incentives.
What neither of them mentioned in conversations with me or in their many blog posts on the subject is that, as part of the TIF agreement, employees working within the TIF district will be subject to a 2 percent employment tax on gross wages for the next 30 years. In other words, $2 out of every $100 earned by people working at or around the park will go directly to paying off the attraction. So while tax dollars might not actually have been used to build the ark, a boatload that would otherwise go back into the community will instead be used to pay off Ark Encounter’s debt.
The litigation on that payroll tax might be something for me to look forward to.
Greg Neyman of Old Earth Ministries has an interesting take on the decision – Answers in Genesis Wins Tax Battle – But Christians Are The Losers
First, let me say to non-Christians, and anyone else reading this…Ken Ham and AiG do not represent the church…as a whole, we are better than that. Please recognize that Ken Ham and AiG are solely responsible for their behavior, and they do not have the support of the majority of Christians. Second, for Christians everywhere, we need to distance ourselves from people like Ken Ham and Answers in Genesis.