Answers in Genesis Sues Kentucky

Answers in Genesis is a tremendous organization.  Their website is filled with a ubiquitous amount of resources that are understandable, relevant, and useful.  They’re unashamedly Christian, and not the ecumenical squishy “God is my co-pilot” kind of Christian either.  They’re biblical.  They’re immovable on doctrines like the sufficiency of Scripture, the holiness of God, and the depravity of man.  They’ve been an ally in helping Christians think through issues like racism, materialism, and to boil down the raw data about the errors of Darwinian philosophy into easy to digest, bite size pieces.  Christians who make use of their materials will be well equipped to contend for the faith.

The Creation Museum is also a treasure.  It’s well done, and jam packed with information.  No visitor can help but walk through the place and be challenged one way or another.  The Creation Museum is a shining testament to the fact that creationists aren’t kooks along the lines of the “Ancient Aliens” adherents.  They’re talented people.  Creative people.  Intelligent people.  People who have an unpopular but compelling story to tell; one that can stand toe to toe with the “settled” science of our day and age.

Yet their latest battle has not been in the minds and hearts of those who believe in evolution, but in the courtrooms and offices of the state they call home.

Thursday February 5, Answers in Genesis told the world that they intend to sue the Commonwealth of Kentucky, its Governor, and its Secretary of Tourism in federal court.  You can read the press release for yourself.  It seems that Kentucky is offering a tax incentive for tourist attractions to be built in their state.  The deal is if you build something that will attract people to spend money in the state you can keep some of the sales tax revenue earned from your attraction up to 25% of the costs to build your project.  You can read a short explanation of the program in this article.

From the get-go, as is detailed on pg 11 of their lawsuit, AiG set up a for profit corporation for the Ark Encounter called “Ark Encounter, LLC”.  The purpose of this corporation was to manage the day to day activities of the park and to serve as the legal entity necessary to apply for Kentucky’s incentive program.  According to the account given in AiG’s court filings, state officials expressed reservations from the first meeting onward about the religious nature of the project.  AiG attempted to assuage their concerns by structuring their for-profit LLC to be owned in part by a “wholly owned subsidiary” of Answers in Genesis called “Crosswater Canyons LLC”, which is a non-profit entity.  The other 80% of Ark Encounter LLC was supposed to be purchased by a number of private investors.  This would have precluded Ark Encounter from claiming to be a religious entity since it would near impossible for any group of private investors to reach a religious consensus that would govern the Ark Encounter’s practices.

Such business practices are common.  For example, many religious or teaching hospitals are “non-profit” but will set up for profit corporations to operate different aspects of the hospital like the cafeteria, or a credit union for employees.  These independent companies are partially owned and typically controlled by the larger non-profit, but allow for investors to make money and to carry the load of operations in a partnership that benefits not only the for profit entity, but the larger non-profit as a whole.  Kentucky seemed to be comfortable with this arrangement for this project in 2009 -10, and moved forward with encouraging the Ark Encounter.

ArkNonetheless, Kentucky expressed immediate concerns over the hiring practices of the Ark Encounter requesting that the Ark Encounter not discriminate on the basis of religion when hiring staff for its operation.  AiG calls this a “novel request” (pg. 23) in its suit citing that this was not a part of the incentive program, not a part of the application process, and was not a requirement placed upon any other entity that had previously applied for the program.  Earlier in their suit, they list a number of attractions that also took part in the incentive program such as an abundance of distilleries (it is Kentucky, after all), an aquarium, and a hotel; just to name a few.

The novelty of this request should not be lost in the shuffle of the argument.  Mike Johnson, attorney for Answers in Genesis, Chief Counsel for Freedom Guard Now, and an elected State Representative in Louisiana; wrote a letter dated May 22, 2014 to William Dexter, Chief Counsel for the Tourism, Arts, and Heritage Cabinet in Kentucky.  In this letter Johnson states the following:

The United States Supreme Court has long acknowledged that when a government’s financial benefits program is facially neutral toward religion (as you have acknowledged the Act itself is), provision of funding to an applicant who may happen to have a particular religious identity or viewpoint is not a violation of the Constitution.

In the letter he goes on to cite the 1995 Supreme Court Decision “Rosenberger v. Rector and Visitors of Univ. of Virginia“, a case that involved the University of Virginia denying funds for a Christian campus newspaper because it was religious in nature despite offering similar funds to other non-religious publications.  A 5-4 majority opinion stated that a government body offering  public funds on an otherwise neutral basis cannot withhold those funds because they will be used by a religious entity.  The court found that withholding those funds was a violation of the First Amendment and NOT, as Virginia claimed, a violation of the “Establishment Clause”  The funds did not, in and of themselves, establish a state religion.  Interestingly, Justice Thomas, in his independently written concurring opinion, raises the following point:

The dissent purports to locate the prohibition against “direct public funding” at the “heart” of the Establishment Clause, but this conclusion fails to confront historical examples of funding that date back to the time of the founding. To take but one famous example, both Houses of the First Congress elected chaplains and that Congress enacted legislation providing for an annual salary of $500 to be paid out of the Treasury.

Thomas goes on to note that Congress and the Supreme Court have not found this payment of chaplains to be in violation of the establishment clause.  His point is that if Congress can employ a religious professional without establishing a religion, surely a government body can allow a religious entity to participate in an otherwise neutral funding program of which other secular and religious entities will have opportunity to participate.

When I interviewed Mr. Johnson he explained that the long held legal conclusion in Rosenberg v. Rector was that there was a difference between the University of Virginia providing money to a Christian campus newspaper among many other publications, and stamping that Christian newspaper as the “official position of the state of Virginia”.  In relating this to his case with Answers in Genesis, he asserts “We didn’t ask the State of Kentucky to create a tax rebate program; but once they did we have a right to use it.”

It should also be noted that Ark Encounter has a right, under Federal Law, “to give employment preference to members of their own religion.”  This permission is granted to exclusively religious organizations on a number of standards, many of which Ark Encounter meet.  Answers in Genesis and The Creation Museum both currently exercise their rights under this statute in their day to day operations.

Yet, initially, AiG admits in their lawsuit that they “initially agreed to [Ark Encounter] complying with this provision (Kentucky’s request that AiG not discriminate) because AiG anticipated a variety of private investors”. (pg 23)  Nevertheless, they also make it clear that they found such requirements “disconcerting” and determined to arrange the management structure of the project to remain under a non-profit religious entity.

However, the economic downturn of those years and the impending burden of ObamaCare prevented AiG from attracting suitable investors.  As they state in their suit “the AiG Board decided to switch from a private investment model to taxable bonds as the financial structure for the Ark project, with Crosswater Canyon being the sole owner of [Ark Encounter].” (pg. 27)

After they had rearranged the corporate structure to eschew private investment and issued taxable bonds as a for-profit company wholly owned by their non-profit subsidiary, Ken Ham held a press conference to laud the evangelistic mission and Christian nature of the Ark Encounter project.

The next day, Ham and the board of directors made a sweeping change to the Ark Encounter hiring policy to, quoting from the lawsuit, “avail itself of the federal and state statutory provisions that allow a religious preference in hiring.”  This new corporate structure would allow Ark Encounter to designate themselves as a religious entity and permit them to avail themselves to the exceptions for religious discrimination under Federal Law.

However, such an arrangement is in direct contradiction to the agreement they made with Kentucky earlier under a different corporate structure when applying for the incentive program.  In my interview, I pressed this point to Mr. Johnson; asking if they had agreed as their lawsuit stated, to not discriminate.  He confirmed that they had.  I then asked if the new hiring policy was completely different under the new model.  He again confirmed my understanding.  When I pressed the point to him that they were changing their agreement with the state, he asserted that it shouldn’t matter to the state because the applicants to the incentive program needed to only meet one burden: proving that their project would bring tourists to Kentucky, a burden that Ark Encounter will meet with room to spare.

Nonetheless, Mr. Johnson also indicated to me and, according to him, indicated to the Commonwealth of Kentucky that Answers in Genesis held themselves to the standard of Scripture, a higher standard than Kentucky Law.  The appearance of dishonesty and mistrust on the part of Answers in Genesis changing their corporate structure and policies is easy to see.  This fact was not lost on AiG either.  According to Mr. Johnson “We were up front with Kentucky the entire time.  They knew exactly what we were doing.”  The Commonwealth of Kentucky did not return my request for comment.

Kentucky informed AiG that they would need to resubmit their application since the financing structure had changed.  AiG considered this a mere formality and began construction on the Ark project as they submitted their new application.  However, the new application was anything but a formality.

Kentucky officials expressed concern over Ham’s press conference and concluded that “Providing tax incentives that would further any such overt evangelism amounts to impermissible state funding of religious indoctrination.”  Going further, the state’s attorney William Dexter stated “the Project changed from a tourism attraction to an extension of AiG’s ministry.”

Such a statement is consistent with Ham’s declarations in his press conference and is an honest conclusion one can make from AiG availing itself “of the federal and state statutory provisions that allow a religious preference in hiring”.  Only a religious entity with the goal of furthering a religious message has such protections.  However this does not mean that Ark Encounter was not ALSO a tourism attraction.

Genesis_1-1AiG responded to this by claiming that no “religious indoctrination would take place inside of the park” and “None of these new requirements or restrictions had previously been imposed upon any other applicants for, and/or recipients of, incentives under the [tourism incentive] Act.”  While that is true, it is also true that no other applicant for the tourism incentive is even remotely religious in nature, nor has any other stated purpose other than earning money from tourism.

Here we enter into one of the more interesting arguments made by Answers in Genesis.  While Kentucky is on legal thin ice in withholding the funds for this program, Answers in Genesis engages the Commonwealth’s argument taking umbrage with the notion that they are “indoctrinating” anyone with their ministry.   To AiG, “indoctrination” connotated a coercion of people, forcing others to accept a viewpoint.  They wanted to be clear, and wrote a letter explaining:

“the theme park was open to everyone, regardless of religious affiliation, and would attract the attention of individuals holding various points of view about Noah’s Ark and Christianity. This letter also confirmed that no religious indoctrination would take place in the park, as no one would be forced to accept any views and interpretations presented in the park.”

Eventually, after some legal wrangling over the nature of the project and the hiring practices, an agreement was reached which AiG signed.  The agreement stated that AiG would comply with Federal Law in hiring.  AiG claims that they signed this document with the understanding that they believed they were in compliance with Federal Law in being able to discriminate on a religious basis when hiring.

The Screenshot

The Screenshot

The situation was about to grow more complicated.  Atheist groups outside of the state put pressure on Kentucky government.  The atheists wanted Kentucky to deny AiG the tax incentive on the grounds that AiG was open about their intention to only hire evangelical Christians who believed in the Biblical creation account.  Citing a screenshot from Answers in Genesis’ own website which detailed a job posting for the Ark Encounter, Americans United for the Separation of Church and State petitioned Kentucky to reject AiG’s bid for the tax incentive because the applicant for the job would be required to agree with AiG religiously.  Although such a requirement is not found in the screenshot, AiG admits to this requirement in their lawsuit stating “The new position required affirmation of each applicant’s Christian testimony and agreement with AiG’s statement of faith.” (pg. 36)

In response to this petition drive, AiG went on the warpath placing aggressive billboards all over Kentucky and in Times Square, even being visible during New Year’s Eve.  Kentucky sided with Americans United for Separation of Church and State  and eventually informed AiG they would “take no further action” on their application which meant that Ark Encounter would not participate in the incentive program.  AiG responded by claiming that the employee being hired would be employed by Answers in Genesis directly.

Paragraph 184 of their lawsuit reads:

“The CAD technician job posting was made by AiG because it was a position to be filled by and for AiG, and not [Ark Encounter]. To date, [Ark Encounter] has not adopted any hiring policies and has not hired any persons. All work on the Ark project has thus far been completed solely by AiG employees.”

However, as can be clearly seen from the screenshot above, the person reports to the lead designer at Ark Encounter and the job summary begins “Our work at Ark Encounter is not just a job, it is a ministry…”.  Moreover, their own lawsuit admits that the day following Mr. Ham’s press conference (video above), the Ark Encounter board met to “avail itself of the federal and state statutory provisions that allow a religious preference in hiring.”

Mr. Johnson explained that the Ark Encounter board only discussed their desire for a discrimination policy, but didn’t set a policy in place.  As for the screenshot? “A mistake”, he claims.  “Some person in H.R., probably unaware of what we were doing legally, put that together.  It was a job for Answers in Genesis, which is why it was on the Answers in Genesis website.”  He went on to make it clear that AiG reached out to Kentucky officials after the screenshot came to light.   “We offered to fix our mistake.”

Citing adverse financial burdens and undue injury to their constitutional rights, AiG declares it has no choice but to file suit in open court.  It’s claims of injury are worth examination.  AiG is claiming a violation of their rights to free speech, free assembly, free exercise of religion, equal protection, and due process under the US Constitution, and accuses Kentucky of violating the clause in establishing a religion.  They further cite similar violations to the Kentucky Constitution and Kentucky law.   Answers in Genesis sums up their lawsuit, quoted in their press release, by saying: “this action by Kentucky officials … violates federal and state law and undermines our constitutionally guaranteed religious freedom.”

State Tourism Secretary Bob Stewart, who oversees the program AiG applied to be a part of, released a statement explaining “State tourism tax incentives cannot be used to fund religious indoctrination or otherwise be used to advance religion”.

It stretches the imagination to believe that government officials nationwide do not resemble these officials found in Kentucky.  Men and women unaware of the law, unwilling to equally protect Christians, our organizations, and our rights and privileges that aren’t as obvious as the right to meet for worship on Sunday or pass out a Gospel tract.  Incompetent, uneasy around men like Ken Ham, and miffed that they have to deal with such people in the first place.  In 2015, sadly, we should expect this type of treatment, but as Mr. Johnson indicates, we should not put up with it either.  Johnson’s passion was never brighter as he eloquently unfolded his thoughts last Tuesday afternoon on the need of the church to stand up for itself; lest hostility toward our right to participate in a funding program become hostility toward our right to worship.  “If the Apostle Paul was here,” Mr. Johnson confidently alleges, “he would bring this lawsuit.”

I’m not so sure I agree.  As an American, I’m saddened by the hassle my fellow Americans received from the Commonwealth.  It scares me to think that a legal matter so firmly settled suddenly becomes unsettled when atheists and the ungodly become grumpy and rattle their proverbial sabres.  That is not supposed to happen in America, and for that reason alone, I wish Answers in Genesis well in winning their case.

shacklesYet, as a Christian, I am reminded that the Apostle Paul lived during the time of Nero, a far greater adversary than any Kentucky official.  Paul was a Roman citizen, and by rights, could avail himself of the Roman legal system.  He even used this to his advantage so he could go to Rome and meet the saints there before he was martyred.  But when it came to raising money, Paul always looked to the church and to his fellow believers.  This same Roman citizen encouraged his brothers in Christ “to make it your ambition to lead a quiet life and attend to your own business and work with your hands, just as we commanded you, so that you will behave properly toward outsiders and not be in any need.” {1Th 4:11-12 NASB}  Paul did not see the taxpayers of Rome as a source of income for his various projects.

We see a principle in place, and a model put before us.  We are to provide for ourselves.  It’s easy to sympathize with the position of Answers in Genesis in their suit; the law is clear and Kentucky refuses to live up to it.  But it is also fair to ask if it is the job of the state to pay for a project such as this one.  “With the shekel comes the shackle”, and philosophically, I am unsure if it is good for Christian organizations to tread the path of becoming beneficiaries of the taxpayers.  While Mr. Johnson laments the slippery slope, no one can argue that the action by the Commonwealth of Kentucky took away the freedom of Christians to build an Ark to accurate size, nor did it limit their right to say what they want about it.  AiG, or anyone for that matter, is still free to do these kinds of things without harassment.  Instead the action by Kentucky merely refused to give taxpayer money to AiG for doing it.  While that may not be AiG’s perfect situation, it is a far cry from undermining their rights; and while it may be a violation of state law, it cannot be said that any federal law compels a state to pay for anything a religious group does.

Moreover, one wonders why a religious organization of any sort wishes to welcome the meddling influence of a 21st century American government.  AiG invites government involvement in their project.  The ramifications, the precedent, of Government partnership will be subject to the law of unintended consequences.  I fear that while we are focusing on the horse, we’ll miss the Trojans.

The first question that came to my mind when I learned of the nature of this lawsuit was why Answers in Genesis solicited donations for Ark Encounter if they were going to seek public funding.  If you’re going to seek taxpayer dollars in Kentucky to pay for your project, why take money out of the hands of good Christian people world wide when those people could give to other needy groups – groups that do not have the same opportunity to ask a government to fund their project?  I feel I must be clear that Answers in Genesis has been upfront about the for-profit status of Ark Encounter, and never made any claims that they would only seek donations or, to my knowledge, that donations to Ark Encounter were tax deductible.  I should also be clear that their fund raising model is not uncommon in American Christianity.  However the question is not “is this typical” but rather “should it be typical?”.

Also, it’s hard to take seriously their claims regarding the job posting described in the screenshot.  Mr. Johnson, to his credit, answered many of my questions smoothly and confidently in almost every issue.  On this issue, it was clear to me that he did not have good answers.  Neither does Answers in Genesis.  The job posting clearly claims to be for Ark Encounter, mentions Ark Encounter five times and Answers in Genesis zero times, and reports to Ark Encounter management.  To claim this job is NOT actually for Ark Encounter is spurious at best.   I am unpersuaded that because the job appears on the Answers in Genesis website, and not the Ark Encounter site, that it is a job for Answers in Genesis.

I am also baffled as to why AiG clings to this claim in the first place.  If they are confident in their position, why not simply assert their right to make hiring policy as a religious entity and leave it at that?  Remember, though, that AiG agreed to comply with Federal Law prior to the screenshot coming to light.  They made it clear at the time that they (rightly) believed Federal Law allowed them to discriminate.  Did they suspect that Kentucky (wrongly) understood compliance with Federal Law to mean no discrimination, as had been position from the start?  Mr. Johnson says he can’t wait to ask that question under oath.  I am eager to hear the answer.

It is the opinion of this writer that Answers in Genesis ought to publicly apologize for their actions surrounding the job posting, and be clear and upfront about who they are hiring, the purpose of the job, and the company that will sign the paychecks.  The appearance of impropriety is unseemly, and the half hearted reaction is disappointing.  Answers in Genesis is better than this.

I also believe that AiG should withdraw their application for public funding of this, and any, project.  Sometimes, the “wall of separation” is a good thing.  The Ark Encounter project rolls along through all of this.  Mr. Johnson was clear that while the public funding is helpful, it is not necessary.  I encourage them to let it go.  Nonetheless, AiG’s lawsuit must be carried forward and must be won.  The erosion of the rights of Christians is as much of an issue as any, and the country must not see Christians as second class citizens.  The law must be the law, even if Christian discretion may preclude us from availing ourselves to it.  If the law is not the law in this case, how can we trust it will be the law in any case?  A postmodern world of shifting standards is not one conducive to the growth of the Christian Faith.

I believe AiG became caught up in the moment and the situation got out of hand.  This is probably the last thing they thought would happen.  That may help to explain the less than exemplary character that beset some of their actions; actions that are OUT OF CHARACTER for Ken Ham and AiG.  Actions like the aggressive billboard campaign, uncharacteristic of the typical genteel attitude of the man and staff that graciously, and bravely, handled the condescending Bill Nye.  Appearances of evil (APPEARANCES, not ACTUAL evil… 1 Thess 5:22), such as is found in their bumbling reaction to the job posting are unheard of in their history.  We ought to encourage them to travel the high-road of integrity, remaining above reproach in this matter too.  AiG has contributed much for God’s glory, and will undoubtedly contribute much more in the future.

Mark Looy, Communications Director for Answers in Genesis, wrote me a heartfelt note as I was neck deep in research.  “Jason,” he wrote, “we all have feet of clay — we are imperfect people at AiG.  At the same time, our board is made up of wonderful godly men who attempt to follow God’s Word in all their decisions, including going to court against the state of Kentucky.”   I was grateful for his candor.  Such humility is attractive and close to the heart of our God.  These imperfect people must now examine themselves.  They cannot trade on past gains to cover current deficiencies.

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  1. The LGBT agenda is at work here. There are many govt. officials that are sympathetic to that agenda. I believe Ken Ham knows it would only be a matter of time until he was coerced by government power to hire a sodomite, thus ruining AIG’s testimony. They have the right to refuse to hire gays and have chosen to take a stand here, rather than wait for an LGBT lawsuit later. Freedom to discriminate in hiring is something the radical leftists of the Democrat party and the Obama administration cannot stand or tolerate.

    The Barronelle Stutzman story of a woman who refused to do a floral arrangement for a sodomite couple. Her story documents how a LGBT sympathetic judge can ruin a Christian’s life and business.

    The “wall of separation” does not prohibit Christians from being involved in government, and I agree with the AIG attempt to secure fair treatment from Kentucky. Sodomites own corrupt government officials. America is entering a new dark age.

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