Judge Sides With Ark-Building Group on Tax Incentive
Source: ABC News
A religious group building a massive Noah's Ark tourist attraction in Kentucky has won a legal battle over the state's withdrawal of a potential tax incentive worth millions.
A federal judge ruled Monday that Kentucky officials violated the ark builders' First Amendment protections by blocking it from the sales tax tourism incentive that could have been worth up to $18 million.
The Ark Encounter, being built by Christian group Answers in Genesis, is due to open in July.
U.S. District Judge Gregory Van Tatenhove ruled the state's Tourism Cabinet cannot exclude the ark attraction from the incentive based on its "religious purpose and message." The state initially celebrated the project but reversed course in late 2014.
Read more: http://abcnews.go.com/US/wireStory/judge-sides-group-building-noahs-ark-tax-incentive-36514657
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Archae
(46,317 posts)"On September 13, 2005, President George W. Bush nominated Van Tatenhove to fill a seat on the United States District Court for the Eastern District of Kentucky previously held by Karl S. Forester. Van Tatenhove was confirmed by the United States Senate on December 21, 2005, and received his commission on January 5, 2006.[5]"
Feeling the Bern
(3,839 posts)even more so because they are on the bench until retirement or toe tag.
happyslug
(14,779 posts)While the US Constitution says the President gets to appoint Federal Judges subject to Senate Confirmation. Ever Since George Washington, the Senate has a rule that any Senator can block any appointment of any judge in his state. Given that rule, every President, including George Washington, has deferred to the Senate when it comes to Judicial Appointments at the State level. i.e. the Senators of that State gives the President a list of nominees to appoint. The nominees are of the President's party, even if both Senators are of the opposition party but still for all practical purposes the appointees of the Senators not the President.
Thus the fact Bush nominated this man to be a Judge is unimportant, the issue is who were the Senators of his State at that time period? That is who selected this man to be a Judge NOT Bush.
The Kentucky Senators in 2005 were both Republicans, Jim Bunning and Mitchel McConnell:
https://en.wikipedia.org/wiki/List_of_United_States_Senators_from_Kentucky
Jack-o-Lantern
(966 posts)
mountain grammy
(26,619 posts)give me a break!
You know, it must be tough to be a Christian in the U.S...
Feeling the Bern
(3,839 posts)Those damn Joos, Mooslims, Hindoos, Boohists and the other non-believers oppress them everyday.
Pretty soon, Christmas will be banned and replaced with pagan holidays like Hanukkah and Ramadan.
blackspade
(10,056 posts)"religious purpose and message"
So this fool ignored the establishment clause.....?
Hopefully this will be appealed.
happyslug
(14,779 posts)Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
http://www.billofrightsinstitute.org/founding-documents/bill-of-rights/
Basically a State can NOT treat a Religion different from anyone else (Thus religious structures that make a profit are taxable, but religious structures where donations are given, are treated like any other charity, i.e. tax exempt).
Here the State had a Secular tax subsidy to any new business construction, then the State said that can NOT go to any RELIGIOUS based for profit business. Using religion to exclude a group from a tax subsidy, that is otherwise available is discrimination against a religion and as such a violation of the clause "prohibiting the free exercise thereof".
blackspade
(10,056 posts)The government is not preventing the free exercise of religion in this case.
What it is doing (or trying) is to not prop up one particular religious viewpoint with government money.
ProfessorGAC
(64,995 posts)Not giving them a tax break is inhibiting free exercise of religion, how? They aren't keeping them from opening the theme park. They're just saying that the establishment clause says the government can't sanction the message with a tax break.
blackspade
(10,056 posts)happyslug
(14,779 posts)The tax break involved is open to ANYONE in the tourist business. The State decided to exclude from that definition anything with a religious connotation. That is the problem, it is NOT the tax break itself, but the decision of the State to exclude anything with a religious connotation from that tax break. If a tax break is open to a defined group of people, a religious group that meets that definition of people can apply for that same tax break. Such definitions can NOT exclude people based on religion (or lack of religion for that matter). That is the holding of the court and the reason for this decision. You can neither favor nor discriminate against religion or any one religion. Make the rules neutral as to religion and that is all the First Amendment mandates.
ProfessorGAC
(64,995 posts)And you disagree with mine. That's is the messy part of a constitution intentionally left somewhat vague.
happyslug
(14,779 posts)The State has a program that provides funds to anyone who requests such help and is in the tourist industry. Then, when this park asked for such funds, the state said NO for the park was religious based.
The problem is the program of tax relief is available to ANYONE in the Tourist industry, and this park is clearly in that part of the economy. Thus this park has to be treated as if it had NO religious basis for purpose of this tax relief, and the state was NOT treating it that way.
Remember this park will be charging an entrance fee and as such a for profit tourist business. It will be paying sales tax, it will be paying estate taxes, it will be paying all taxes any other for profit business would be paying. Paying such taxes does NOT prevent the free exercise of religion as long as the tax in general in nature, i.e. everyone pays them.
I did mention the exemption when it comes to Charities, and churches are viewed as Charities as long as they take donation and that donations are NOT tied in with any buying or selling of items (thus Churches are open to anyone who wants to go in, you do NOT pay to enter a church, through you can donate to that church whilel attending that church and a collection plate can be passed around). This exemption does NOT apply to this park, for it is clear an entrance fee will be charged and as such viewed NOT as a Charity but as a for profit business.
In simple terms, this is a for profit business that asked for State help that is available to any for profit business in the Tourist industry. Given such a program the state can NOT exclude anyone from that assistance based on religion. Remember that is the key to this case, this Park meets the definition of a tourist attraction as used by the state for that tax program. The state can NOT say, that such assistance can NOT go to something with a religious nature. That is discrimination based on Religion and unconstitutional.
The State could get out of this by simply abolishing that tax program, but that means ALL TOURIST attractions using that program will lose money provided by that program.
This is similar to a program for people, but the program excludes African Americans. Such a program is itself NOT unconstitutional but the exclusion of African American is. Same here, the tax to help tourist attractions is clearly constitutional, but to exclude religious based tourist attraction is unconstitutional.
blackspade
(10,056 posts)But the basis for cutting off their subsidies was because AiG was discriminating in it's hiring practices to exclude non sect members.
happyslug
(14,779 posts)Last edited Tue Jan 26, 2016, 03:08 PM - Edit history (1)
While a state CAN forbid its tax dollars from being used for discrimination, the Civil Rights Acts (which covers discrimination by private businesses) is geared to Court Orders and Damages for discrimination NOT increases in taxes.
On top of that the Civil Rights Act has the Civil Rights Commission to handle such complaints and the Commission has to try to work out a solution to any dispute before any such case can go to court.
This is complicated by the rules in regard to Religion and discrimination cases. When discrimination involves Religious groups, the first Amendments can come into conflict with the Civil Rights Acts, and in such situations the First Amendment wins.
The first rule is any position that relates to how the religion is organized, operates or teaches its teachings, the Religion can discriminate against anyone. Thus the Civil Rights laws permits the Catholic Church to prohibit female priests.
As to positions that do NOT involve the dogma, leadership or teachings of that Religion, discrimination based on religion is NOT permitted (i.e. Catholic Church can hire Baptists African Americans as Janitors).
The problem is where do these two group divide? It is common practice among Christian Churches to hire organists who are NOT of that religion. They need organists. This practice can raise to a level that such positions are NOT positions of leadership within a religion and discrimination do to religion is NOT permitted.
One the other hand, it has been held that a lay teacher in a Catholic Church, who violated Catholic Dogma on artificial insemination was in a position of leadership and her violation of Church Teachings was grounds for her termination AND NOT DISCRIMINATION BASED ON RELIGION. The rationale was she was in a leadership position as a lay teacher and as such had to show a good example by following Church Teachings. Her violation of those teachings is NOT protected under the Civil Rights Act for that would violate the First Amendment Clause of Free Exercise of Religion.
Thus when it comes to employment, the issue is are these people representing the Church that is supposing the Park or just employees with no duties to spread the word? Hard line to draw for the line is based on how the employees are expected to present themselves to visitors. Just like Disney requires all of their employees to present a certain happy face at all times, this Park can make a similar requirement and that can be upholding their Church Doctrine to all visitors. The best way to ensure that is to make sure all Employees are of that religion.
Just pointing out that discrimination in hiring do to religion has its own rules when it comes to religious groups. We also must consider that this Park will church admission and as such taxable. Donations are NOT taxable, but entrance fees are, donations MUST be voluntary and admission can NOT be based on payment of a Donation. If a "Donations" is required to enter an attraction, that is an admission fee not a donation and is treated as taxable income.
Anyway, when the Courts get involve in the above case, you have a Plaintiff suing to be hired OR receive damages for NOT being hired. One of the problem is most of these jobs will be low paying minimum wage jobs so the damages, even if someone wins the case, will be what the Plaintiff would have earned if employed by this group LESS what the Plaintiff earned in other employment. In most cases involving hiring you also have the issue would the employer have hired the Plaintiff except for the religious discrimination? In many cases the answer to that is NO.
This is why almost all of the cases involving discrimination involved people who were FIRED as oppose to NOT being hired. In NOT being hired cases, the person saying he or she was illegal discriminated against has the burden of proof to show he or she would have been hired EXCEPT for the discrimination (The employer only has to show the Employer would have hired legally someone else instead and defeats such lawsuits, even if that list of people are a list of people NEVER hired). This is a trough burden to get over, not impossible but tough, and in cases involving low wage people almost unheard of.
On the other hand, employees who were fired can clearly show they HAD THE JOB for they had been HIRED TO DO THAT JOB. Thus issue of whether they would have been hired in the first place is NOT an issue. Thus, in almost all of the cases involving discrimination, the issue is the termination of an employee (in rare cases the lack of promotion of an employee). Thus in a discrimination suit you have to have someone hired and then fired for NOT being of that religious group and clearly fired for not being a member of that religion. Mere being NOT hired is not enough, for the employer can always show the list of people who applied for work that they would have hired before the person who fired the lawsuit.
You have to have a REAL case of DISCRIMINATION based on Religion, not a theoretical case to get to court. You have to have at least one person who applied and were denied employment because of his or her religion. The better case would be someone hire and then fired do to his or her religion. Either way you still have to work around the religious aspects, is the employee to represent the Religion that built this Ark or can the employee be anybody off the street? Once over that aspect, then and only then do you get a Court Order ordering hiring OR money damages for discrimination.
In many ways the decision over the Tax was simple, all you had to find was this was a for profit entity and it was being discriminated against do to being a religious entity. That is easy.
Discrimination in employment based on religion is a whole different set of law that involved how much is the employee representing the employer, would the Employer had hired the potential Employee EXCEPT for the religious rule, and the damages incurred by the discrimination. That is the type of case that goes to trial for the facts are clearly in dispute and until the facts are settled (and that is done by a Jury or a Judge sitting without a Jury). Interesting side note, but not relevant on the issue of this tax exemption for tourist attractions, which was the only decision decided today by the Judge.
blackspade
(10,056 posts)Carry on.
happyslug
(14,779 posts)Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Notice the TWO requirements of the First when it comes to Religion:
1. Congress shall make no law respecting an establishment of religion, or
2. prohibiting the free exercise thereof;
It appears you have a problem with the second clause, that Congress (and the State via the 14th Amendment) can NOT pass a law prohibiting (and that includes restricting) the free exercise of religion (which can include running businesses). The State has to treat any religion like any other similar institution. In this case any other for profit entity. That is ALL the court ruled today. The State can NOT say, everyone gets a tax cut EXCEPT Churches. That is all the Court ruled today.
brett_jv
(1,245 posts)The purpose of exemptions like this, I would think, is to encourage enterprise that brings in tourism to a state, as that's seen as a 'net positive' even after exemptions for sales tax.
In such cases, assuming the net positive demonstrably exists (or at least should), it really shouldn't matter if it's a new giant statue of MLK, an Ark Park, or a Nazi History Museum, from the POV of the state.
As much of an avowed atheist and SoCS person as I am ... this particular decision makes perfect sense to me.
This is predicated, however, on the state NOT raising other peoples taxes ... to make up for the shortfall here. And the 'economic effect' should be monitored, and if it turns out this park is COSTING taxpayers due to it's exemption (i.e. not providing a net positive), the exemption should be revoked or reduced at least. But I'd say that about ANY outfit taking advantage of such exemptions.
sinkingfeeling
(51,444 posts)happyslug
(14,779 posts)This theme park will charge an entrance fee and as such is a for profit entity and has to be treated as such (including paying the taxes on the property the park will be on).
The State has a Sales tax subsidy for new businesses related to tourism, this business fits that definition. The state can NOT add a clause "exempt if religious based" for that would interfere with the free exercise of religion (as set forth in the First Amendment of the Bill of Rights). That is all the Judge ruled, you can neither discriminate against or for religion. Here the state tried to discriminate against this construction do to its religious nature and that is NOT permitted under the First Amendment.
If tax payers do NOT want to subsidize this institution, all the State has to do is abolish the tax subsidy to ALL BUSINESSES. That is constitutional, but that is NOT what the State wanted to do in this case, the State wanted to exclude Religious institutions from this subsidy based on religion alone and that is NOT permitted under the First Amendment.
snooper2
(30,151 posts)happyslug
(14,779 posts)All the Federal Judge ruled today was a general law that a religious entity fits under can NOT include a religious exclusion.
Hiring only Christians is a different argument and one the courts have had a hard time working with. The courts have ruled that when we are dealing with Religious leaders, religion can be used to discriminate but when it comes to general workers general discrimination laws apply (Churches can NOT discriminate on religious grounds when it comes to janitors for example, if such janitors are paid employees not volunteers).
As you go above janitors and groundskeepers, the courts tend to be more and more willing to say any law on discrimination comes in conflict with the First Amendment and its forbidding laws affecting the free exercise of religion. A teacher was fired a few years ago for getting being artificially inseminated. Such medical treatment is viewed as against Catholic teachings and she was fired. That termination was upheld on the grounds as a teacher was not only taught classes but held herself out as a Representative of the Catholic Church (That was the finding of the Court).
Thus could this Park exclude non Christians from working at the Park? I do not know for it is how such employees will be seen by visitors. This will be just like Disney, you have to have a certain "character" to work at a Disney Theme Park, and if you do NOT hold yourself out in that matter you can be fired. The same with workers dealing with the public in this park, but no so workers who are NOT dealing with the public.
AS I said that is a different set of rules, a set of rules with no hard rules to go by.