Tom Loftus

FRANKFORT, Ky. – Tax incentives for the Noah's Ark theme park in Northern Kentucky are in jeopardy over the state's concern about possible religious discrimination in hiring, records obtained by The Courier-Journal show.

"The Commonwealth doesn't believe that Ark Encounter, LLC will be complying with state and Federal law in its hiring practices," Bob Stewart, secretary of the Kentucky Tourism, Arts and Heritage Cabinet, said in an Aug. 27 letter to an Ark Encounter attorney.

Stewart wrote that "serious concerns" were raised by a job posting for an Ark Encounter position that required applicants to provide salvation testimony, a creation belief statement, and agreement with the "Statement of Faith" of Ark Encounter's parent organization, Answers in Genesis.

"Therefore, we are not prepared to move forward with consideration of the application for final approval without the assurance of Ark Encounter, LLC that it will not discriminate in any way on the basis of religion in hiring," Stewart wrote.

James Parsons, a Covington attorney representing Ark Encounter, responded to Stewart saying that the job posting that triggered Stewart's concern was not for Ark Encounter, but Answers in Genesis.

Parsons wrote that Ark Encounter stands by its longstanding commitment to "comply with all applicable federal and state laws" on hiring and said that Stewart was adding a new requirement to Ark Encounter's application for tax incentives.

Not so, Stewart replied Sept. 4. "The Commonwealth does not provide incentives to any company that discriminates on the basis of religion and we will not make any exception for Ark Encounter, LLC…" Stewart wrote. "The Commonwealth must have the express written assurance from Ark Encounter, LLC that it will not discriminate in any way on the basis of religion in hiring."

That was the most recent written communication between Stewart and Parsons, said Gil Lawson, spokesman for the Tourism, Arts and Heritage Cabinet.

The correspondence between Stewart and Parsons was obtained by an Open Records Act request made by The Courier-Journal.

Parsons, with the firm Taft Stettinius & Hollister, did not return phone messages. Mike Zovath, a co-founder of Answers in Genesis and executive director of Ark Encounter, said the matter is still under discussion with cabinet officials.

"We're still in the negotiation with the state, saying why are you requiring us to do something you don't require other applicants to do? And why are you requiring us to give up our religious freedom and our religious rights to comply with an additional requirement that isn't in the state Tourism Act?" Zovath said.

The conflict over potential hiring practices is the first serious obstacle in Ark Encounter's path to winning state tax incentives for developing its biblical theme park in Grant County.

In 2011 it won final approval of the Kentucky Tourism Development Finance Authority for its entire $172.5 million project. But because of financing problems, it withdrew that application and returned this year seeking approval of a $73 million first phase that would include the park's main feature — a 510-foot wooden ark.

On July 29 the authority gave preliminary approval for the project — the first of two steps allowing the park to participate in a program that would let it keep 25 percent of the sales tax the tourist attraction would collect for 10 years. In this case, these tax rebates would be as much as $18.25 million.

But the authority has yet to grant final approval. Lawson said the project is "still pending before the authority" and a date has not yet been set for the meeting where final approval will be considered.

In August, The Courier-Journal first reported concerns raised by the Washington-based Americans United for the Separation of Church and State and others over potential hiring practices. American United, in a letter to Gov. Steve Beshear and members of the authority, said it was alarmed by a job posting on the Answers in Genesis website for a designer's job on its Ark Encounter project.

That posting required applicants "to supply a written statement of their testimony, a statement of what they believe regarding creation, and a statement that they have read and support the AIG Statement of Faith."

Zovath said that this posting is for a job at Answers in Genesis — not Ark Encounter.

The state, Zovath said, "wants Answers in Genesis, a recognized religious non-profit, to change our hiring policies for something that has no application to the Tourism Act. Answers in Genesis isn't asking for Tourism rebates, the Ark Encounter is."

Zovath said Answers in Genesis and Ark Encounter "are two different organizations, two different operations that are wholly owned by Answers in Genesis." And he insisted that Ark Encounter will "follow all of the applicable federal and state hiring employment laws and practices."

Lawson, spokesman for the Tourism cabinet, said it had no comment on the issue beyond what Stewart has said in his letters.

Alex Luchenitser, associate legal director for Americans United, said in a phone interview, "We're pleased with this development. It sounds like the state of Kentucky has a policy of not providing tax incentives to organizations that discriminate and that the state is sticking to its guns in this."

Luchenitser said he believes there is a reason that Ark Encounter does not want to provide an express assurance it will not discriminate based on religion in its hiring practices yet insists it will comply with all federal and state hiring laws.

"I think what's going on here is that Ark Encounter's position is that federal and state law allows them to discriminate in hiring based on religion — that they are entitled to an exemption from the federal and state anti-discrimination statutes that is afforded certain religious organizations. We think they're wrong on that," Luchenitser said. "… And we believe Ark Encounter is not entitled to that exception because it is a for-profit organization."

Reporter Tom Loftus can be reached at (502) 875-5136. Follow him on Twitter at @TomLoftus_CJ.