Over the weekend, we’ve been discussing the Kentucky government offering tax incentives to the Ark Encounter theme park, as a job creation boost. Some oppose it on the grounds that it “establishes religion.” Others say that doesn’t matter if it creates jobs. A third group has pointed out that a tax incentive is not a gift, unless you think the government owns everyone’s labor. Here, the Kentucky government offers tax advantages relevant only if the Ark floats, so to speak. In which case, the job creation scheme will work.
Joshua Youngkin, a lawyer for Discovery Institute, offers us a legal comment:
Under EC [Establishment Clause] case law, KY actors must have had a secular purpose behind the tax incentive the primary effect of which can neither advance nor inhibit religion nor entail excessive governmental entanglement with religion. Also, KY’s decision must not amount to an endorsement of religion over against irreligion from the standpoint of the reasonable observer. As you can see, this area of law is very squishy. That means almost anything can happen. To be more precise, if this Ark Park controversy begets litigation, and if the case were to clear the procedural hurdles of Winn, then almost anything could happen on the more substantive matters of motive, effect, entanglement, and endorsement.
We’d asked about whether the project could be construed as “religious” based on the fact that the business’s owners are, and hope that the Park will prove something about the Biblical account of the Flood. He replied,
… , the “right” answer to your question is, no, the motives of the business owners here don’t matter, although I can imagine how a particularly creative judge could allow those motives to perhaps count as evidence of what KY was trying to do, or to perhaps allow a jury to hear it as such if that issue were to go to a jury, for some reason. The relevance of the business owner’s motives could perhaps come down to what level of scrutiny the court decides to apply to KY’s stated motives. For example, if the judge is not feeling very deferential to KY, or thinks he smells pretext, he might try to peer behind the curtain of the ‘plain language’ of the tax incentive legislation (or resolution or whatever) to see what’s really going on.
He also clarifies what the Establishment Clause in US law actually means (as opposed to what radical secularists often want it to mean. We had asked whether evidence of religious activities associated with a business would cause it to be labelled a religious enterprise – for example, having a chapel on the premises of the Kentucky branch office). As to that,
… no, any KY decision to incentivize businesses to relocate to KY would not run afoul of the Establishment Clause just because one of those businesses happened to operate an ecumenical chapel on premises. To be clear, the Establishment Clause applies only to governmental action, not private action taken by these business actors. In order for the EC to apply to this business there would have to be a prior judicial finding that the business at issue and the state of KY formed a public-private-partnership (PPP), an unlikely proposition on these facts. Similarly, I see no reason to think the Ark Park and KY have formed a PPP, so the Ark Park itself won’t be susceptible to EC challenge, though the KY tax break may be.
Watching the file.