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Monday, December 06, 2010

Bishop Ussher, Brought to You By the State of Kentucky

Time and other commitments prevent me from commenting too fully on this, but here is an interesting story about a biblically oriented theme park called Ark Encounter, which, according to the story, stands to receive substantial state subsidies.  The story quotes Erwin Chemerinsky saying:  “If this is about bringing the Bible to life, and it’s the Bible’s account of history that they’re presenting, then the government is paying for the advancement of religion. And the Supreme Court has said that the government can’t advance religion.”  With respect, I think Chemerinsky is mistaken in his analysis.  Assuming, as the story suggests, that this is a generally applicable, generally available subsidy for privately run tourist destinations in Kentucky, I don't believe this is "advancing" religion, at least in the sense that religion is not in this case advanced by comparison to any other potential recipient of funds.  Nor can the park's message reasonably be perceived as the state's message.  I do think Chemerinsky raises a broader question, which is whether that kind of neutrality analysis can necessarily settle all Establishment Clause questions or whether there are some substantive actions respecting religion that government is simply and absolutely forbidden to take.  But I don't think that's the case here.


Posted by Paul Horwitz on December 6, 2010 at 01:24 AM in Paul Horwitz | Permalink


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At the risk of piling on, I am also wondering about the limits of the tourism subsidy. Suppose a for profit company proposed to build a church, say a replica of Sacre-Coeur (or maybe the chapel at the Air Force Academy, which is an interesting building), provided the state allows it to obtain tourism subsidies for the project. If the company can show that lots of tourists would visit the church (and so provides jobs, economic growth, etc.), would subsidizing the church violate the Establishment Clause? Or would this be the kind of "substantive action[] respecting religion that government is simply and absolutely forbidden to take"?

Posted by: Micah Schwartzman | Dec 6, 2010 9:45:30 PM

As long as the good people who elected Rand Paul are equally willing to pay taxes to subsidize my long-planned 'Koran-o-Rama(dan) Adventure Park: A Mecca for Entertainment!', I have no problem with it.

(Don't worry: even though the park is Koran-oriented, the taxpayer subsidies will be used for advancing tourism; any advancement of a religious message will be incidental. Just like Ark Adventure.)

Think Kentucky would be willing to keep on subsidizing?

If not, what does that tell you about whether its Ark Adventure's religious message, or its tourism potential, that's being subsidized?

Posted by: Mark | Dec 6, 2010 3:38:48 PM

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