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Noah's Ark Wants a Tax Break

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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I take a proprietary interest in replicas of Noah’s Ark. When a Dutch-built, seagoing ark crashed earlier this month in Oslo harbor, I felt a jolt of horror. So I was fascinated when a former student sent me the tale of a life-size vessel being built to anchor a Christian theme park in Williamstown, Kentucky. And I was strangely gratified to learn that the ark is embroiled in a First Amendment controversy over state subsidies that make the park possible.

The two-part issue is of broad and recurring significance: Can a state subsidy that’s available to a range of different businesses be used for an expressly religious purpose? And more interestingly, if the state chooses not to extend the subsidy, does that violate the potential recipient’s religious liberty?

The ark in question is almost 600 feet long, 85 feet wide, and eight stories high. Genesis 6:15 says the ark should be 300 cubits long, 50 cubits wide, and 30 cubits high, so the proportions may be a bit off; but the goal of replication certainly seems to be honored. It will be located in the midst of Ark Encounter, a $100 million for-profit biblical theme park that is supposed to include a zoo (naturally); camel rides (because who doesn’t love to ride a camel?) and zip lines (because, well, zip lines).

The founder of the theme park, Ken Ham , says it isn’t just for entertainment but for “religious purposes.” As he forthrightly put it, “It’s definitely an evangelical tool.” Park employees have to sign a statement committing themselves to a literal interpretation not only of the book of Genesis but of the rest of the Christian Bible, including the Gospels.

All this is within Ham’s religious liberty rights, including the exclusion of nonbelieving employees. I can hardly think of a better bona fide occupational qualification for employment at a literalist biblical theme park than literalist biblical interpretation.

Where things get constitutional is in Ark Encounter’s funding. The park benefits from Kentucky subsidies intended to promote business.

Many Kentuckians are sympathetic to religion. But in 2014, Bob Stewart, secretary of the state’s Tourism, Arts and Heritage Cabinet, urged by the secularist organization Americans United for Separation of Church and State, refused to give Ark Encounter the $18 million in subsidies that it sought.

Ark Encounter sued the state in federal court. In a decision that I think is partly correct and partly wrong, the court held not only that the state could lawfully give the subsidies to the park, but it had to do so.

The specific incentive at issue allows a tourist attraction to recover up to 25 percent of its sales-tax liability from the state. The tax break is available to attractions that cost more than $1 million to build and go through a state approval process.

Under existing Supreme Court precedent, the district court was probably right to say that the state could grant this benefit to Ark Encounter without violating the Establishment Clause. The law is framed generally in order to bring tourism dollars to the state. The government therefore arguably isn’t advancing or endorsing the cause of religion by allowing a religiously themed park to take advantage of it.

One comparison would be the New Jersey state subsidies for private higher educational institutions that have been extended to Catholic universities and the Beth Medrash Govoha yeshiva in Lakewood. Those uses have been challenged in court, but it seems very likely that they will survive because they are provided neutrally, without respect to religion.

But the court was wrong under existing precedent when it went on to say that the state had to give the subsidy to Ark Encounter or it would be violating the free exercise of religion. The controlling precedent is Locke v. Davey, a landmark 2004 case in which the court held that the state of Washington could exclude students studying religious subjects from an otherwise neutral scholarship program without violating religious liberty.

The district court rather lamely said that the Locke case involved funding for schools whereas the theme park isn’t a school. But that makes no legal difference, since the theme park claims teaching religion as one of its central goals.

An appeals court following the law would almost certainly reverse the district court’s decision. But in the meantime, in 2016, after a new governor was elected, the Kentucky Tourism Development Finance Authority, stocked with new members, approved the subsidies. As a result, the legal field will become complicated. Because the court was correct that the state could approve the subsidy if it wanted, a legal challenge would have to be directed at the state’s new decision, not the old one that has now been reversed.

The bad district court decision may therefore remain on the books.

I know what the original Noah would have done, because the Bible tells me so : He would have poured himself a drink.

  1. At first I thought maybe he took his last name in honor of Noah’s second son. But on reflection, it would make more sense to go with Shem or Japhet if you were aiming for the full naming experience.

  2. Genesis 9:21.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Max Berley at mberley@bloomberg.net