Ark Encounter Incentives Are About Tourism

Mike Johnson is chief counsel of Freedom Guard, a nonprofit, constitutional law organization that has assisted Answers in Genesis with its Ark Encounter project.

Editor’s note: The following op-ed appeared on Sunday on the website of Kentucky’s largest newspaper, the Courier-Journal of Louisville. Written by an attorney assisting AiG in matters related to the Ark Encounter, the op-ed dispels some widely held myths associated with the construction of the Ark that major media (e.g., The New York Times) and secular bloggers have been circulating.

One would expect that any project that will bring millions of dollars in new capital investment, create hundreds of jobs and be a tremendous asset to the communities of Northern Kentucky would be enthusiastically welcomed by every Kentuckian. But because the project at issue is the Ark Encounter theme park, a few radical secularists and others are doing their best to oppose the park and misrepresent both the law and the related facts. Fortunately, the secularists' arguments hold no water.

The opponents’ interpretation of the Constitution is one that has been repeatedly rejected by the courts. There is simply no question that the commonwealth’s allowance of tax refund incentives in exchange for the Ark Encounter’s extraordinary economic impact to the area will fully comply with the safeguards of the Establishment Clause of the First Amendment.

The U.S. Supreme Court has long acknowledged that when a government’s financial benefits program is facially neutral toward religion (as the Kentucky Tourism Development Act certainly is), the provision of funding to an applicant who may happen to have a particular religious identity or viewpoint is in no way a violation of the Constitution.

According to the Supreme Court: “[T]he guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse.” Rosenberger v. Virginia (1995).

Since its inception, the development act has been applied to extend nearly $100 million in tax refund incentives to a diverse array of recipients—all to increase tourism and economic development.

Just as every rational person understands the commonwealth was not somehow “endorsing” the consumption of alcohol when it approved tax refunds for a beer distillery tour project in 2012, or "endorsing" the speech of every stand-up comedian or adult-themed entertainer who may fill the stage at one of the entertainment venues previously approved, there can be no valid argument that the commonwealth will somehow endorse the private religious speech or viewpoints that may be expressed at the Ark Encounter Park.

This is clearly not a government "grant," as the secularists have claimed, because not a single penny will be pulled from the existing state treasury to help build or support the Ark project. Instead, the commonwealth has merely agreed as an incentive that it will refund a portion of the brand-new tax dollars that are generated by the park itself, if and when the park meets certain attendance-performance levels at the end of each year. It's the same deal that every other participant in the act has been given—and that is precisely the "government neutrality" that is required by the First Amendment.

Kentucky officials are smart to enthusiastically embrace the Ark Encounter, and the millions of tourists the park will welcome to the area from every viewpoint, race, color, religion and creed. Answers in Genesis aims to encourage critical thought and respectful public debate about the various attractions and ideas that will be presented at its park, and that is the beauty and essence of free speech.

If the secularists were truly proponents of the First Amendment as they claim, they would want to welcome that civic discourse (and tremendous economic development), rather than stamp it out. When the Ark Project sails, everybody will benefit—even those who are stubbornly trying to sink it.