The Yabba Dabba D'ough

Looks like the Commonwealth lost its lawsuit to the Ark Park, and we Kentuckians get to fork over millions to a place where man rides dinosaurs and the earth is 6,000 years old.

The state of Kentucky must give millions of dollars in tax subsidies to a Noah’s Ark theme park owned by a creationist ministry, even though that ministry refuses to comply with the state’s request not to engage in hiring discrimination, according to an opinion by a George W. Bush appointee to the federal bench. Under Judge Gregory Van Tatenhove’s opinion, the creationist group Answers in Genesis (AiG) stands to gain up to $18 million.

That's roughly $4 a person, so even if you refuse to visit, hey, you bought a ticket. But on appeal this may not hold.

Judge Van Tatenhove’s decision in favor of AiG is on much shakier ground, however, when he claims that AiG is entitled to the subsidy even if it wants to engage in employment discrimination. He roots this decision largely in a non-sequitur about what AiG’s obligations would be if they were sued by an employee alleging discrimination. As the judge notes, federal law exempts “a religious corporation, association, educational institution, or society” from the federal ban on employment discrimination “with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.” Thus, a religious group like AiG typically has the right to hire only members of a particular faith without having to face a federal lawsuit. 

But the fact that federal law provides a particular exemption does not necessarily mean that Kentucky must also offer the same exemption. And it certainly does not mean that Kentucky must also provide tax subsidies to groups that engage in discrimination. In Bob Jones University v. United States, the Supreme Court rejected a school’s claim that it was entitled to federal tax subsidies, despite the fact that the government had denied such subsidies because the school prohibited interracial dating. More recently, in Christian Legal Society v. Martinez, the Court held that a student group that banned “unrepentant homosexual conduct” could be denied valuable benefits under a public law school’s anti-discrimination policies. As Justice Ruth Bader Ginsburg explained in her majority opinion, “our decisions have distinguished between policies that require action and those that withhold benefits.”

Judge Van Tatenhove’s opinion, in other words, rests on the extraordinary proposition that the state of Kentucky is required to subsidize discrimination. That is not what the Constitution provides.

Question is will Matt Bevin and AG Andy Beshear appeal the ruling?  I can certainly see Beshear doing it, as his father is the one who challenged Answers in Genesis in the first place.  But Bevin can order him not to, and then things get tricky.

We'll see.