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Floating the Ark in Kentucky … a lawyer’s view

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The ArkOver 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.

If the gov't refused to pay then it would be inhibiting religion. This because the only reason its opposed is because its religious. The intent of the park etc is to tell the truth on a secular matter. It doesn't matter if religion agrees with it. Religion teaches one to love ones parents but this doesn't mean its a religious thing. Its a secular thing to love ones parents. theres no escaping the logic here. If the state is banning something then its either saying its not true or regardless of its truth its to be banned. In schools and parks the creationist point is a secular point on accuracy of origins. Therefore the state in banning is banning a secular opinion just because it crosses religious ideas. The state is interfering with conclusions of people just because they flirt with religion. The state is breaking the separation concept . Nothing separate here. all this they claim from 1700's Yankee and Southern protestants . they would be astonished. Robert Byers
Just in case anyone's interested, here's Wikipedia's summary of the Lemon test:
The Court's decision in this case established the "Lemon test", which details the requirements for legislation concerning religion. It consists of three prongs: 1. The government's action must have a secular legislative purpose; 2. The government's action must not have the primary effect of either advancing or inhibiting religion; 3. The government's action must not result in an "excessive government entanglement" with religion. If any of these 3 prongs are violated, the government's action is deemed unconstitutional under the Establishment Clause of the First Amendment to the United States Constitution.
The intent of AIG is to advance their religious ideas, and the park is clearly there to do that. So, as I asked on the last thread, can this not fall foul of the second prong? Heinrich
The secular purpose of the whole theme park is to give an accurate and true account of the origins of certain matters.
But as that is a religious account, the purpose is religious. I can't see your argument working in court. Heinrich
semi-OT; World's Oldest New Testament Fragment - "Spooky" Gospel Account - video http://www.metacafe.com/w/6517637 bornagain77
The secular purpose of the whole theme park is to give an accurate and true account of the origins of certain matters. To deny funding by the government to this secular agenda could only be a intent to inhibit religious belief because it is affected by the secular agenda. In all these matters this Canadian always finds that if the state bans or prohibits opinions on the natural world or history etc then the state is either making a official policy they are WRONG or saying that are not allowed to teach the truth which would be a absurdity in education. In fact the state can not censor creationism(s) without at the same time declaring them false and so declaring God or Genesis as false since they are censoring based on religious association. Therefore they are using the state to establish certain tenants of religion are false. They are breaking the law that motivates their censorship. The constitution from the 17700's said that eh?! Robert Byers
Terminology Tuesday (one day early): I prefer "Secular Fundamentalists" over "radical secularists" and "evolutionism" over "Darwinism". http://www.amazon.com/Confessions-Secular-Fundamentalist-Shankar-Aiyar/dp/0670058173/ref=sr_1_1?ie=UTF8&qid=1307374857&sr=8-1 bevets

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