Ark Encounter, LLC v. Parkinson
152 F. Supp. 3d 880
E.D. Ky.2016Background
- Answers in Genesis (AiG) sought Kentucky tax incentives under the Kentucky Tourism Development Act (KTDA) for a for-profit, paid-admission Noah’s Ark theme-park (Ark Encounter) that includes religious exhibits and an expressly evangelistic component.
- AiG’s project met the KTDA’s objective, secular eligibility criteria; an independent consultant (Hunden) concluded the project would generate jobs and net positive fiscal impact; preliminary approval was granted in 2010 and again in 2014 pending final review.
- Kentucky tourism officials, after reviewing press statements and job postings (which required agreement with AiG’s statement of faith), withdrew final approval, citing two reasons: (1) refusal to grant incentives to an employer that intends to discriminate in hiring on religious grounds, and (2) concern that subsidy would impermissibly advance religion (Establishment Clause).
- AiG sued, alleging violations of the First and Fourteenth Amendments (Establishment, Free Exercise, Free Speech, and freedom of association), and moved for a preliminary injunction to prevent exclusion based on its religious character and hiring practices.
- The court held that (a) the KTDA is facially neutral and has a secular purpose; (b) excluding AiG because of its religious message or hiring practices violates the Free Exercise and Free Speech Clauses and improperly injects the state into religious-content determinations; and (c) AiG was likely to succeed on its federal First Amendment claims — injunctive relief granted in part. Claims against the individual secretary for money damages were dismissed on qualified-immunity grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether applying KTDA to a religiously motivated attraction violates the Establishment Clause | AiG: KTDA is neutral and secular; allowing AiG does not endorse religion | Commonwealth: funding AiG would advance religion / violate state Establishment provisions | Court: KTDA is neutral; applying its neutral criteria to AiG does not violate Establishment Clause; exclusion based on religiosity itself violates neutrality |
| Whether denying KTDA benefits because of AiG’s religion and hiring practices violates Free Exercise | AiG: exclusion penalizes religious exercise and speech; burdens free exercise and association (Title VII religious-organization hiring exception) | Commonwealth: exclusion is justified to avoid Establishment Clause violations and because employer hiring practices may be illegal | Court: exclusion imposes a substantial burden on religious exercise and is not narrowly tailored to a compelling interest here; Free Exercise claim likely to succeed |
| Whether denying incentives based on project message is unconstitutional viewpoint discrimination (Free Speech) | AiG: KTDA creates a government program that facilitates private speech; exclusion targets viewpoint/content (evangelical message) | Commonwealth: KTDA does not create a speech forum and may regulate funding to avoid establishment | Court: the program facilitates private expression and government may not exclude applicants for their viewpoint; the Commonwealth’s content-based exclusion is unconstitutional |
| Whether Kentucky constitutional provisions bar AiG’s participation | Commonwealth: state constitutional anti‑aid clauses are broader than federal law and prohibit funding here | AiG: KTDA incentives serve public/economic purposes and Ark is not a "place of worship" or sectarian school | Court: cited Kentucky provisions (Sections 5, 171, 184, 186, 189) are inapplicable as interpreted here; state constitutional arguments do not defeat AiG’s federal claims |
Key Cases Cited
- Lemon v. Kurtzman, 403 U.S. 602 (Lemon test for Establishment Clause analysis)
- McCreary County v. ACLU, 545 U.S. 844 (purpose/endorsement inquiry; neutrality requirement)
- Mitchell v. Helms, 530 U.S. 793 (attribution/diversion analysis; aid to religious entities on neutral terms)
- Agostini v. Felton, 521 U.S. 203 (folding entanglement into primary-effect inquiry)
- Sherbert v. Verner, 374 U.S. 398 (free-exercise burden and scrutiny when benefits are conditioned on forgoing religious practice)
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (viewpoint discrimination and funding of private speech)
- Widmar v. Vincent, 454 U.S. 263 (neutral access to forum; benefits to religious speakers)
- American Atheists, Inc. v. City of Detroit, 567 F.3d 278 (6th Cir.) (neutral aid program including religious beneficiaries; diversion/endorsement analysis)
- Satawa v. Macomb Cty. Rd. Comm’n, 689 F.3d 506 (6th Cir.) (usage of Lemon and Agostini refinements in 6th Circuit)