Tuesday, January 26, 2016

The Ark Park Decision is Bad for Christian Honor

When Answers in Genesis, the Christian ministry behind the Creation Museum, proposed a Noah's Ark theme park, they promised that there would be no religious test to work there.  On the strength of that pledge, Gov. Beshear promised tourism tax credits.

Both the ministry and the government acknowledged that if employees had to proclaim AiG's specific brand of Christianity, the deal would be off.

Then the ministry broke its word, and quietly required a religious test for employment.

Governor Beshear, therefore, cancelled the tax credits.

Inconsistent with the honor one might expect of a Christian ministry, Answers in Genesis sued for the tax credits.

Surprisingly, a federal judge ruled in favor of the Ark Park.  I think this is a bad decision in law.

But even worse, I believe, is the Ark Park bringing the suit, and accepting money from all the taxpayers while excluding some from employment.


Mac said...

I agree almost completely. I think Ark Park has done a dishonorable thing in reneging on its oral promise. It does them no good from a ministry point of view and tars other worthy Christian charities with the brush of dishonesty and hypocrisy.

That being said, you cannot blame the Court for interpreting federal law and applying it properly. As the judge says, if they are entitled to certain rights and privileges under federal law, the Court has no power to deny them those rights. If one really wants separation of Church and State, i.e., the State may not tell a religious entity who it may or may not hire, then this is the result. Ninety-nine times out of 100, the result will be appropriate. Ark Park obviously had a good attorney who zealously represented his or her client, as the Canons of ethics require. There is an old maxim that "hard cases make bad law." It appears to apply in this instance.

Gruntled said...

If the state were telling an entirely private entity who it could hire, I would agree. However, this case turned on a specific benefit from the taxpayers on the condition that no citizens be excluded on religious grounds.

Mac said...

Did you read the decision? I suggest you do—it is long, but no longer than most purely academic articles, and this one is a well-written and well-reasoned exposition on the tension inherent in the Free Exercise clause of the 1st Amendment. We were always taught that relying on the head notes to a decision was the entrance to the path of folly. Relying on newspaper articles about a 70 page decision is even more dangerous.

As one of my profs, Professor Dean Sodaro, taught us on the first day in law school, “the facts, the facts, the facts! You cannot apply the law without knowing the facts!”

The Court certainly quickly did away with your objection about hiring. You wrote "But even worse, I believe, is the Ark Park bringing the suit, and accepting money from all the taxpayers while excluding some from employment." and "this case turned on a specific benefit from the taxpayers on the condition that no citizens be excluded on religious grounds." Actually, it did not.

The Court appears to have been very much interested in the Commonwealth’s apparent disregard for Title VII of the Civil Rights Act. Title VII of the Civil Rights Act specifically and intentionally excluded religion from the suspect classes of discriminatory hiring. Indeed, the Commonwealth argued that the original “agreement” to have no religious restrictions on hiring bound the corporation. But, in footnote 25, the Court resolved that issue very nicely: “To the extent the Commonwealth thinks AiG may have waived its right to use this exemption because of the stipulations about hiring in the first application, the exception for religious organizations in Title VII ‘is a structural limitation imposed on the government by the Religion Clauses, a limitation that can never be waived.’ Conlon, 777 F.3d at 836. AiG’s decision to change its intended practices by the time of the second application does not constitute a waiver of its right to qualify for the exception.”

The Court noted that the same benefit had been granted to Maker's Mark Bourbon for a theme park and would certainly not be required to hire people who did not know anything about making bourbon, even if they were taxpayers.

In this case, Kentucky agreed to give a corporation building a tourist attraction the same benefits it gave to any other job-creating, tax-paying tourist attraction that was being built in Kentucky. The corporation, relying on that agreement, bought land and incurred other costs. In fact, Indiana and Ohio also wanted the attraction, but Kentucky agreed to give the benefits to the corporation to entice them to build in Kentucky. See, e.g., nn 3, 20, 25, 28, and 37.

Ultimately, they were building a theme park, complete with shops, restaurants, and attractions that would bring tourists to the Commonwealth. They were not building a church. What finally convinced the Court was the fact that the Commonwealth was with-holding a neutral benefit based solely on the content of the theme of the Park.

That is such an obvious—to use a legal term of art—Constitutional no-no that the Court had no choice but to rule against the Commonwealth.

Gruntled said...

That is helpful detail, Mac.

Do you know if the Ark Park is a for-profit business?

Mac said...

Hard to tell from the reported decision, but from the tenor of the decision, I believe it is. The Court specifically determined that it was not a "church". Based on the Court's reasoning, I'm not sure that profit v. non-profit would have been germane. The Commonwealth conceded that it was seen to be a tourist draw, with the attendant benefit to the community and the Commonwealth. As a result, it had to be treated like any other qualifying tourism business.