Columns

Federal Judge Bails Out Noah’s Ark in Kentucky

Gregory Lipper, senior litigation counsel for Americans United for Separation of Church & State, told PJ Media that U.S. District Judge Greg Van Tatenhove “got the law flatly wrong” when he approved an $18 million Kentucky tax subsidy for the Ark Encounter, a project that tells the biblical story of Noah.

Ken Ham, the founder, CEO and president of Answers in Genesis (AiG), the group building the Ark Encounter — a $90 million, 510-foot-long, full-sized replica of Noah’s Ark — called Van Tatenhove’s decision “a victory for religious liberty.”

“AiG has rallied God’s people to rebuild the Ark as a powerful evangelistic outreach to the world. Christians are taught in Luke 19 to ‘do business’ with what He has entrusted to us until the King comes,” Ham wrote on his blog. “We are to be on about the King’s business!”

The Ark Encounter, scheduled to open July 7, turns the Bible’s story of Noah into a “one-of-a-kind, historical themed attraction,” according to the Ark Encounter’s website. It is being created as a sister attraction to the AiG’s Creation Museum in Williamstown, Ky.

“The Ark will equip visitors to understand the reality of the events that are recorded in the book of Genesis,” according to the home page of arkencounter.com: 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, and God saved Noah and his family and the animals on the Ark, just as He had promised.

“Kentucky taxpayers should not be forced to pay for Answers in Genesis to expand its religious ministry and discriminate on the basis of religion,” Lipper said.

Ham referred to the story of Nehemiah rebuilding the wall around Jerusalem as he referred to those of Lipper’s mindset who tried to block the AiG tax subsidy.

“Just like Nehemiah, we had our Tobiahs and Sanballats opposing us. That included false accusations, as secularists tried in many ways to stop the project,” Ham wrote.

“As prophesied in 2 Peter 3, scoffers in the last days will deny there was a Flood. And we have had plenty of scoffers! But just like Nehemiah, we kept pressing on with what God has called us to do,” Ham added.

When Democratic Gov. Steve Beshear was running things in Kentucky’s capitol of Frankfort about a year ago, state tourism officials told AiG it would not be able to receive a tax subsidy under the Kentucky Tourism Development Act (KTDA) because to do so would be a violation of church and state.

Gregory Lipper agreed and pointed to a 2004 U.S. Supreme Court decision, Locke v. Davey, which, he argued, gave the states the discretion to withhold taxpayer funds from religious programs even if that funding is generally available to other, entirely secular, projects.

Judge Van Tatenhove disagreed and wrote, “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.”

Van Tatenhove not only rejected the separation of church and state argument, he decided Kentucky would be violating AiG’s religious freedom if the tax subsidy was denied.

“[T]he Commonwealth admits that it denied AiG’s application because of AiG’s religious beliefs, evangelical message, and desire to hire those who agree with its religious views. Such action is essentially employ[ing] the taxing power to inhibit the dissemination of particular religious views, which is unconstitutional because it discourages AiG’s First Amendment rights of religious expression,” Van Tatenhove wrote.

“Therefore, even if AiG is not actually prohibited from expressing its religious views, denying a potential tax benefit because the claimant engages in certain kinds of speech is in effect to penalize them for such speech,” he concluded.

Despite Lipper and others who are outraged at what they see as a blatant dismantling of the wall between church and state, Republican Gov. Matt Bevin has a different attitude than former Gov. Beshear when it comes to the creation of the Ark Encounter.

Kentucky will not appeal Van Tatenhove’s decision.

“It is disappointing that the Commonwealth (of Kentucky) is refusing to appeal. Because the judge failed to grapple with this binding (Locke v. Davey) decision from the U.S. Supreme Court,” Lipper said. “The Commonwealth would have had a good chance of getting this decision overturned.”

Evidently, that is just what Bevin doesn’t want.

“This administration,” Bevin spokeswoman Jessica Ditto said in a statement to the Associated Press, “does not support discrimination against any worthy economic development projects.”