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.I have read Peter's article over a few times and at first glance it reminds me of the Synder v Phelps (2011). I don't like it but I have to agree with it (I think). I like Peter's contrast..
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.
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.
I am not completely sold on this ruling. I see Peter's point as well as the ACLU's. I understand the were the judge is addressing the issue, but like Westboro, I dislike Ham, AiG, and the Ark EncounterThis 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.Americans United For Separation of Church and State disagrees with the ruling.
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
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.
Kentucky Can Attract Tourists Who Like Bible More Than Bourbon Without Violating First Amendment - Forbes