The state of Kentucky must give millions of dollars in tax subsidies to a Noah’s Ark theme park owned by a creationist ministry, even though that ministry refuses to comply with the state’s request not to engage in hiring discrimination, according to an opinion by a George W. Bush appointee to the federal bench. Under Judge Gregory Van Tatenhove’s opinion, the creationist group Answers in Genesis (AiG) stands to gain up to $18 million.
AiG is probably best known for its Creation Museum, a Kentucky attraction where “Adam and Eve live in the Garden of Eden. Children play and dinosaurs roam near Eden’s Rivers” and “the serpent coils cunningly in the Tree of the Knowledge of Good and Evil.” In 2010, the group began work on an attraction called “Ark Encounter,” a theme park built around Noah’s Ark. AiG sought millions of dollars in tax subsidies for this project under a Kentucky program that provides such subsidies for tourist attractions. As Judge Van Tatenhove’s opinion explains, other projects that have received tax subsidies in the past include “the Newport Aquarium, 21C Museum Hotel, Kentucky Speedway, Kentucky Kingdom, and multiple bourbon visitor centers such as Buffalo Trace, Maker’s Mark, and Old Forester distilleries.”
Though Kentucky officials were initially enthusiastic about providing these subsidies to help fund the Ark Encounter, they later reversed course citing fears that the state constitution does not permit tax incentives to be used to “advance religion,” as well as concerns that AiG “intends to discriminate in hiring its employees based on religion.” AiG sued, alleging various First Amendment theories.
AiG’s claim that Kentucky cannot deny subsidies from a generally available program solely because of a group’s religious message has considerable force. In Lamb’s Chapel v. Center Moriches Union Free School District, for example, the Supreme Court held that a public school that permitted outside groups to use its facilities for “social, civic and recreational meetings and entertainments” could not deny these facilities exclusively to groups with a religious purpose. “The First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others,” Lamb’s Chapel explains. It follows that, if Kentucky makes a tax subsidy broadly available to groups that meet a certain criteria, they cannot deny that subsidy to a qualifying group because of its religious message.
Judge Van Tatenhove’s decision in favor of AiG is on much shakier ground, however, when he claims that AiG is entitled to the subsidy even if it wants to engage in employment discrimination. He roots this decision largely in a non-sequitur about what AiG’s obligations would be if they were sued by an employee alleging discrimination. As the judge notes, federal law exempts “a religious corporation, association, educational institution, or society” from the federal ban on employment discrimination “with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.” Thus, a religious group like AiG typically has the right to hire only members of a particular faith without having to face a federal lawsuit.
But the fact that federal law provides a particular exemption does not necessarily mean that Kentucky must also offer the same exemption. And it certainly does not mean that Kentucky must also provide tax subsidies to groups that engage in discrimination. In Bob Jones University v. United States, the Supreme Court rejected a school’s claim that it was entitled to federal tax subsidies, despite the fact that the government had denied such subsidies because the school prohibited interracial dating. More recently, in Christian Legal Society v. Martinez, the Court held that a student group that banned “unrepentant homosexual conduct” could be denied valuable benefits under a public law school’s anti-discrimination policies. As Justice Ruth Bader Ginsburg explained in her majority opinion, “our decisions have distinguished between policies that require action and those that withhold benefits.”
Judge Van Tatenhove’s opinion, in other words, rests on the extraordinary proposition that the state of Kentucky is required to subsidize discrimination. That is not what the Constitution provides.