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Opinion: State Got It Wrong in Denying Tax Incentives for Ark Encounter

The following editorial is written by attorney and Fort Thomas City Councilman-elect Adam Meier.
 
As reported in The River City News earlier this week, the Kentucky Tourism Development Finance Authority declined to award $18 million in tax incentives to the Ark Encounter project. In support of its decision, the Tourism Secretary, Bob Stewart, stated that "The use of state incentives in this way violates  the separation of church and state provisions of the Constitution and is therefore impermissible".  
 
In the strictest sense of the phrase, this may seem like a valid and logical conclusion. However, before citing to the constitution as authority, it is important to first try reading and understanding it.  
 
You see, while it wasn’t made clear which Constitution he was referencing, U.S. or Kentucky, if you were to read either of them, you would not find the phrase “Separation of Church and State” anywhere in the documents. The phrase should not be used literally in the strictest sense to apply to every conceivable transaction between the government and an organization with religious affiliation. This is because “the separation of church and state” is a concept that arises out of and was the basis for the Establishment Clause and Free Exercise Clause. It is what gives rise to the metaphorical wall that separates the establishment of a national religion and the government.  
 
Rather than use the “church and state” phrase with reckless indifference to its actual meaning, perhaps Secretary Stewart should isolate those two clauses and understand their meaning and purpose.  
 
The Establishment Clause prevents the federal government and state governments from declaring and establishing a national or state sanctioned religion. At the time of the nation’s founding, the drafters of the Constitution were fresh out of the Revolutionary War where they gained independence from England—the same England who had established a national religion, the Church of England, which prevented citizens from freely exercising other religions of their choice.
 
The Free Exercise clause was included in the Bill of Rights to ensure that the government did not arbitrarily infringe citizens’ ability to exercise the religion of their choosing.  The two clauses should be read in harmony with each other. The Kentucky Constitution, Section 5, Right of Religious Freedom, states similar sentiment, prohibiting “preference” to a religion.
 
That's what the clauses do. What these clauses do not do is prevent a government actor from having dealings with religious entities in the same manner they would deal with other non-religious entities.  
 
None of these Constitutional clauses would be violated if the Commonwealth allowed tax incentives for the Noah’s Ark amusement park. This is because the amusement park is seeking incentives through the Tourism Development Finance Authority using a neutral process of general applicability, a benchmark standard used to determine whether government action is favoring or discriminating against a particular religion. Religious affiliation or belief is in no way a determining factor as to whether the Amusement park gets final approval—it’s based on financial and economic factors that other non-religious applicants must also pass.
 
This is why the Kentucky Speedway was able to obtain tax incentives despite the fact that there are prayers before each race. It is also is why the Federal government grants 501(c)(3) tax exempt status to religious organizations that meet the objective criteria in the same way it grants it to other non-religious charitable, educational and scientific organizations.  
 
While there has been opposition from the get-go, the new reason for denying these tax credits was because Ark Encounter job postings required "creation belief statements" and opponents pointed out that because of this they planned to engage in discriminatory hiring practice. But it's important to remember, all hiring decisions are discriminatory--typically, the discriminators are based on education or experience. It only becomes legally actionable discrimination if the law says it is (i.e, race, gender, etc).  A belief in creation is a qualification desired by Ark Encounter because it is relevant to the basis of the organization's belief and purpose.  While they are discriminating based on religious views (or lack thereof), this is legal discrimination under the Ministerial Exception, a legal doctrine exempting religious organizations from anti-discrimination laws in hiring employees.
 
So what this tells me is that the only actionable discrimination occurring here is the viewpoint discrimination by the Commonwealth.  To illustrate this point, consider the following hypothetical.  
 
Assume instead of Ark Encounter, the applicant for tax incentives was the proposed Williamstown Natural History Museum.  All other attributes (cost, location, etc.) of the proposed plan were are the same. We can all agree that this organization would likely receive the tax credits with no objection. But what's the difference?  Both organizations are bringing jobs and economic development to the area.  
 
Both are creating a venture intended to entertain and educate based on their views. Both are complying with all legal  hiring requirements.  Both meet all objective criteria of general applicability to qualify for the tax credits.  The only difference is simply that the two organizations have different viewpoints on the formation of the world.
 
One of the biggest criticisms of religious, in particular, Christian people and organizations is that they are not tolerant of the views of others.  In some cases, that's a fair enough criticism. However, it is a two-way street, and non-religious should be tolerant of those with religious views, even if they don't understand or agree with them. And the Commonwealth, as a government actor, should not be engaging in viewpoint discrimination either and work to understand the actual principles, meaning and concepts of the separation of church and state doctrine and related constitutional provisions. 
 
What this should be about is economic development. The Ark Encounter is $172 million dollar investment in a city and county that could really use economic development and tourism. This coming at a time when we as a region are hemorrhaging businesses and jobs to Texas and other states that are more business friendly (and apparently more tolerant). We should be opening are arms and extending benefits to organizations willing to make that kind of investment in our area.  Instead, we are snubbing our noses because we don't agree or understand this organization's viewpoints.  It's the wrong approach, and this was the wrong decision.
 
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Photo via Ark Encounter