FRANKFORT, Ky. – An attorney for Kentucky argued Wednesday that Answers in Genesis is free to build a Noah’s ark theme park in Northern Kentucky but that state tax dollars cannot be constitutionally spent to advance the work of the “indisputably religious organization.”
But a lawyer for Answers in Genesis said it is an act of religious discrimination for the state to say that its tax incentive program to lure tourist developments is open to any applicants “except evangelicals.”
The lawyers clashed in U.S. District Court in the first court hearing of a lawsuit brought in January by Answers in Genesis against Gov. Steve Beshear and Kentucky Tourism Secretary Bob Stewart charging that the officials violated its right of religious expression by denying the project state tax incentives.
Beshear and Stewart have asked the case to be dismissed. Answers in Genesis wants an immediate ruling allowing it to participate in the incentive program. U.S. District Judge Gregory Van Tatenhove challenged each side with questions during the two-hour hearing but gave no indication of when he will rule.
The case stems from Answers in Genesis’ application to a state program that allows a qualified tourism proposal to keep part of the state sales tax it collects after it opens. The ark theme park — which will feature a 510-foot-long wooden replica of Noah’s ark as described in the Old Testament — is proposed to cost more than $74 million and could qualify for about $18 million in incentives.
Van Tatenhove said at the outset that Answers in Genesis seems to be a “decidedly Christian” organization working to draw more followers to its particular beliefs. Yet the judge also said the state law creating the incentive program seems neutral toward what type of tourist attraction can qualify so long as it generates an economic benefit for the state.
He noted the state approved an earlier application by Answers in Genesis for an even larger biblical theme park — an application later withdrawn due to financing problems. He asked if the state didn’t dig beyond the law’s requirements to ask if the project involves “too much Jesus.”
But Virginia Snell, a Louisville attorney representing the state officials, said that, regardless of the wording of the state law, the state is bound to respect the mandates in the U.S. and Kentucky constitutions to separate church and state.
Snell said it became clear from Answers in Genesis’ website postings and other actions since its first application that the project had become more religious in nature and that the organization also intended to discriminate on the basis of religion in hiring for the project.
“Call it what you will,” Snell said. “… But the character of it is religious. This is evangelical outreach.”
Mike Johnson, a Louisiana attorney and member of the Louisiana state legislature who represents Answers in Genesis, said the ark will be “an entertainment facility” and not a place of worship. “The state went too far,” Johnson said. “… It’s not the state’s place to meddle in what’s too religious.”
Construction of the ark has been underway for months. And officials of Answers in Genesis, which also operates the Creation Museum in Boone County, Ky., say they expect the park to open next summer, regardless of how the court rules.
But Johnson said in an interview after the hearing that while the tax rebates under the program are not needed for construction, they are important for Answers in Genesis to pay down its debt and be able to pay for plans to expand the park.
By Tom Loftus