Mike Wynn

@MikeWynn_CJ

FRANKFORT, Ky. – A proposed Noah's ark theme park in Northern Kentucky has been turned down for around $18 million in state tax incentives amid concerns that it will promote religion and violate the separation of church and state.

But the group behind the project -- Answers in Genesis -- says it is considering legal action in federal court.

The state Tourism, Arts and Heritage Cabinet said in a letter Wednesday that the Ark Encounter theme park has changed its position on hiring policies since it originally filed for incentives in 2010 and now intends to discriminate in hiring based on religion.

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It also said the park has evolved from a tourist attraction into an extension of the ministry activities undertaken by Answers in Genesis, which promotes a literal interpretation of the Bible's old testament and argues that the Earth is only 6,000 years old.

"State tourism tax incentives cannot be used to fund religious indoctrination or otherwise be used to advance religion," Tourism Secretary Bob Stewart wrote in the letter. "The use of state incentives in this way violates the separation of church and state provisions of the Constitution and is therefore impermissible."

Officials will "take no further action" on the application, he said.

Answers in Genesis was seeking approval to participate in a state tax-incentive program that would have let the park keep 25 percent of the sales tax it collects for 10 years, amounting to more than $18 million.

The $73 million first phase of the Ark Encounter involves building a full-scale, 510-foot wooden replica of the ark in Grant County to present the biblical account of Noah surviving a worldwide flood.

The Kentucky Tourism Development Finance Authority gave preliminary approval in July but thereafter sought written assurances that project leaders would not discriminate on the basis of religion.

Without Stewart's recommendation, the application will not go back to the authority for final approval.

Answers in Genesis, which launched a billboard campaign in Kentucky and New York City this week to counter criticism from "anti-Christian activists," said in a statement that its attorneys are exploring legal options.

And one of the group's attorneys, James Parsons, sent a letter to the cabinet on Monday arguing that the state's demands on hiring policies violate state and federal law.

"If you insist on the newly imposed condition... it will amount to unconstitutional viewpoint discrimination and my client will have no choice but to seek redress in federal court," Parsons wrote.

The letter describes Ark Encounter as an "overtly religious entity" that is "clearly allowed" under state and federal law to use religious criteria in hiring. It also argues that the state's conditions will impose a burden on the freedom of religion without a compelling government interest.

Parsons argued that simply allowing Ark Encounter to participate in the incentive program does not amount to endorsing a religious viewpoint or spending state money to further a religious cause.

But, Alex Luchenitser, associate legal director for Americans United for Separation of Church and State, said it's unlikely a lawsuit could succeed in federal court.

He said the U.S. Supreme Court has made clear that states can deny taxpayer subsidies to religious groups if officials are concerned that funds will support religious activities.

"Kentucky is doing the right thing and is respecting the rights of taxpayers to not be forced to subsidize religious indoctrination and discrimination," Luchenitser said. "The state is also respecting the fact that jobs that are going to be supported by state subsidies must be open to all."

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Meanwhile, Gov. Steve Beshear issued a statement Wednesday reiterating concerns that project leaders plan to use religious beliefs as a "litmus test" for hiring. But he said Wednesday's decision does not prevent the park from being built.

"On the contrary, Ark Encounter has said publicly that the project will be built regardless of availability of state incentives," he said. "I have no doubt that the Ark Encounter will be a successful attraction, drawing visitors and creating jobs, much like the Creation Museum."

Answers in Genesis had received a green light from the finance authority in 2011 for its entire $172.5 million project. But, it withdrew the application amid financing troubles and returned this year seeking approval for only the first phase.

Excavation on the construction site has already begun.

Answers in Genesis also runs the Creation Museum in Boone County, a 70,000-square-foot operation that asserts that Earth was created in six days and that ancient humans lived alongside dinosaurs.

Reporter Mike Wynn can be reached at (502) 875-5136. Follow him on Twitter at @MikeWynn_CJ.