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Creationists’ Ark lost tax credits over hiring practices — is this legal?

Should a state give sales tax credits to a tourist attraction that will hire employees based on their religion?

Guest post by Daniel Bennett

Ever wanted to get an up close look at Noah’s Ark? The people who brought us the Creation Museum are hoping to make that happen. However, Kentucky’s tax laws are throwing water onto their efforts.

Last month builders began pouring concrete for Ark Encounter, an “immersive, historically themed experience” centered around a full-size replica of the Ark, according to dimensions offered in the book of Genesis. It will be located about 45 miles south of the Creation Museum, near Williamstown, Kentucky.

A component of Ark Encounter’s funding strategy was to take advantage of a Kentucky tax credit program created to encourage tourism, whereby attractions could keep 25 percent of sales tax revenues for several years. But the park was recently denied on the grounds that its hiring policy did not conform to state law.

Specifically, the state tourism board says the park will discriminate in hiring based on religion, and is thus ineligible for public funding. The park’s attorneys argue such a policy amounts to viewpoint discrimination, something that Supreme Court has routinely held unconstitutional.

So, who’s right? Previous court cases have held that tax money cannot be spent to further a religious message, and that an organization may lose its tax-exempt status when its mission is contrary to public policy. Most famously, in 1983 the Supreme Court held that Bob Jones University’s ban on interracial dating was grounds for terminating its tax-exempt status.

On the flip side, as the park’s attorneys are likely to point out, Ark Encounter is a religious entity – much like a church – and therefore should be allowed to use religious criteria in hiring decisions. In the 2012 case Hosanna-Tabor v. EEOC, the Court unanimously ruled that churches and religious schools should be given discretion in hiring practices.

Ark Encounter has not decided whether it will pursue legal action. But if it does, the biggest question will be whether the denial of tax credits places a significant burden on religious expression. If it does, the state would need to offer a compelling reason for that burden.

And if Kentucky can demonstrate such an interest, Ark Encounter will have to rely solely on private funding to stay afloat.

Daniel Bennett (@bennettdaniel), PhD, contributed to this post. He researches the conservative legal movement. He is a professor of political science at Eastern Kentucky University.

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