The last time we wrote about this topic was a few days ago: AIG’s Suit Against Kentucky Is Coming. As you already know, Answers in Genesis (AIG) is the creationist ministry of Ken Ham (ol’ Hambo) — the Australian entrepreneur who has become the ayatollah of Appalachia, famed for the infamous, mind-boggling Creation Museum.
AIG is planning to build their Ark Encounter project in Kentucky, and their application to receive potentially millions of dollars in sales tax rebates has been denied. The lawsuit has now been filed and the complaint is here. It’s a 48-page pdf file. Let’s take a look at it.
The first several paragraphs describe the parties and explain why the court has jurisdiction. They’re suing in Federal court in the Eastern District of Kentucky for injunctive relief, declaratory relief, and damages, so it won’t be a jury trial.
The plaintiffs are: (1) Ark Encounter, LLC, a for-profit company “centered on factually presenting the historical truth of Noah and the Ark, the Genesis Flood, and other historical accounts recorded in the Bible”; (2) Crosswater Canyon, Inc. (which owns Ark Encounter), a 501(c)(3) religious non-profit corporation, the purpose of which “is to support the ministry of Answers in Genesis’; and (3) Answers in Genesis, Inc., the purpose of which is “to provide seminars, lectures, debates, books, along with other forms of media, museums, facilities, and exhibitions that uphold the authority and inerrancy of the Bible as it relates to origins and history.” AIG owns Crosswater Canyon, and Crosswater Canyon owns (or controls) Ark Encounter.
The defendants are Bob Stewart, who is Secretary of the Kentucky Tourism, Arts, and Heritage Cabinet (which runs the tax rebate program), and Steven Beshear, Governor of Kentucky. That takes us through paragraph 13. What follows is a description of AIG’s Statement of Faith and the glorious work they’ve done to “be a catalyst for reformation by reclaiming the foundations of Christian faith which are found in the Bible.”
Paragraph 33 tells us: “AiG leaders believed an attraction centering on Noah’s Ark — much like the Creation Museum — would be an evangelistic opportunity and outreach for its ministry, enabling AiG to teach the world about the Bible and the message of salvation in a creative and entertaining way.”
We think paragraphs 50 and 51 crucial. They say:
Due to the large nature of the project, AiG had already considered having a separate but wholly owned 501(c)(3) religious, non-profit subsidiary (Crosswater Canyon, Inc.) oversee and manage the Ark attraction. But given the apparent need for private investors, AiG was also advised to form a for-profit limited liability company structure (Ark Encounter, LLC) for the project, so that Crosswater Canyon/AiG would manage the project and hold a substantial (approximately 20%) ownership interest in the LLC, and a group of qualified (accredited) investors would hold the remaining (approximately 80%) ownership interest.
AiG planned for Crosswater Canyon to serve as the managing member of the LLC. Under this structure, Crosswater/AiG would at all times retain specific management authority to supervise, manage and control the content, storyline and message presented in all exhibits and attractions throughout the project.
So Ark Encounter is a for-profit company, mostly owned by private investors, but it’s controlled by a religious non-profit company (Crosswater Canyon), which is controlled by AIG (also a religious non-profit company).
Then we’ve given a long history of the idea for developing Ark Encounter, the feasibility studies they made, the places they considered for its location, and the negotiations they had with Kentucky regarding that state’s incentives for the tourism industry. In paragraphs 67 through 69, we’re told that as far back as October of 2009, AIG met with officials of the Kentucky Department of Travel and Tourism, and were told of concerns about “separation of church and state” issues due to the “faith-based” nature of the Ark project. They kept looking at other locations in other states. Later they were told “the religious nature of the project would not be a barrier for receiving the [tourism] Act [tax] incentives” (paragraph 79).
Paragraph 100 says that in October of 2010 “Kentucky officials confirmed that their legal concerns had been fully addressed and they assured AiG leaders the project would qualify for incentives under the Act.” The next paragraph says the Governor of Kentucky “voiced his full encouragement and promised to publicly support AiG’s application for the tourism incentives.” That’s when AIG decided to locate the thing in Kentucky and they submitted their application for the tourism incentives. In November of 2010 they contracted to buy land for the project. Then they had a press conference, at which the Governor expressed his approval.
In December of 2010 they got preliminary approval, but were required to provide that they would “not discriminate on the basis of religion in hiring workers for the Ark project.” (Paragraph 118.) They got their approval.
Then it goes on and on about financing and the sale of bonds. But they only raised enough for Phase One of the project — the Ark itself — and because it was a scaled-back project, they had to make a new application for the tourism benefits. That pretty much takes us through paragraph 150, on page 29. Isn’t this fun?
In April of 2014, while their new application was pending, they were notified that the state had concerns about the evangelical mission of AiG and the Ark project, and that “Providing tax incentives that would further any such overt evangelism amounts to impermissible state funding of religious indoctrination.” (Paragraphs 155 – 156). AIG was “confused and disappointed.”
Then we’re told of a long series of letters and meetings. Eventually (paragraph 180) AIG was again given preliminary approval. But then Americans United for Separation of Church and State started complaining (paragraph 182). In August of 2014, AIG was told that the tourism agency wouldn’t recommend final approval (paragraph 193) because an ad for employment said that the employee would have to sign AIG’s statement of faith.
There was another series of letters and meetings. Nothing changed. That gets us through paragraph 204 on page 40. (Your Curmudgeon regrets that he decided to undertake this task, but we’ve gone too far to quit now.)
The remainder of the complaint is a description of the specific legal violations of law AIG claims the state of Kentucky has violated by denying them the tax incentives. That’s really all you need to look at. It’s mostly based on alleged violation of AIG’s right to freedom of speech, the Free Exercise clause of the First Amendment, the Equal Protection clause of the 14th Amendment, the due process clause of the Fifth Amendment, and some provision of the Kentucky Constitution.
As we’ve pointed out before, if Ark Encounter were a tax-exempt religious organization, it could enjoy all the freedom it wants to hire whomever they want (as AIG already does), without receiving tax incentives. However, their claim is that they have a right to do those things as a for-profit company and receive the tax incentives. That’s what the case will be all about. Also, AIG chose to proceed without final approval of their second application, in the belief (or hope) that they’d receive it, despite some warning signs along the way. But that may not matter. Their claim is that they have a right to final approval. The judge will somehow sort it all out.
So there you are, dear reader. Now we’ll just have to wait. Most of the pleadings that get filed will be boring, and we probably won’t bother with too many of them, but we expect that there will be some interesting moments. However, we don’t expect much commentary by ol’ Hambo at his blog, because the lawyers will probably advise him to let them do the talking.
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