Ken Ham files lawsuit against Kentucky

[Heywood]

Both "compelling governmental interest" and "least restrictive measures" are undefined trouble spots.

These phrases come from the Sherbert test which the court established so I doubt very much they will now find them undefined. Anyways Hams argument will be this:


1. Ark Encounters is a religious organization.

2. Federal Law carves out an exemption for religious organizations that allows them to discriminate in their hiring practices(Title IV of the Civil Rights Act of 1964).

3. State law carves out an exemption for religious organizations that allows them to discriminate in their hiring practices(KRS 344.090).

4. Providing facially neutral economic incentives does not violate the establishment clause as long as they are administered in an even handed manner. Ark Encounter would be receiving the benefit in spite of being a religious organization and not because it is a religious organization.

5. The economic incentive does not create an excessive state entanglement with religion because it does not require state officials to make judgments about the religious content of the project.

6. The state cannot argue it has a compelling state interest to prevent Ark Encounters from engaging in discrimination in its employment practices when it specifically grants Ark Encounters the right to do so by statute.

7. The demand by the Tourism, Arts and Heritage Cabinet that Ark Encounters surrender its rights under Federal and State law to discriminate in its hiring practices in order to receive the benefits of a tax incentive smacks of overt religious discrimination and is a violation of the Religious Freedom Restoration Act.