RE: Ken Ham files lawsuit against Kentucky
February 6, 2015 at 3:01 am
(This post was last modified: February 6, 2015 at 3:03 am by Thumpalumpacus.)
(February 5, 2015 at 3:18 pm)Heywood Wrote: 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).
Actually, Title IV covers discrimination in education. The relevant passage you're thinking of is this one:
Quote:Notwithstanding any other provision of this subchapter, (1) it
shall not be an unlawful employment practice for an employer to
hire and employ employees, for an employment agency to classify, or
refer for employment any individual, for a labor organization to
classify its membership or to classify or refer for employment any
individual, or for an employer, labor organization, or joint
labor-management committee controlling apprenticeship or other
training or retraining programs to admit or employ any individual
in any such program, on the basis of his religion, sex, or national
origin in those certain instances where religion, sex, or national
origin is a bona fide occupational qualification reasonably
necessary to the normal operation of that particular business or
enterprise;
Now, I'm unsure if only Christians can work on the hydraulics of midway rides, or operate cash registers, but I'm thinking that might be a hard sell in a court.
(February 5, 2015 at 3:18 pm)Heywood Wrote: 3. State law carves out an exemption for religious organizations that allows them to discriminate in their hiring practices(KRS 344.090).
§ 1 of that text is exactly identical to the Federal text, meaning that it is no additional layer of protection for Ham. § 2 requires such exempt employment to be in the accomplishment of the corporation's religious activities. This means that perhaps the guides, who must be versed in Bible mythos, perhaps can be required to be believers. It doesn't appear to cover janitors or popcorn poppers. § 3 covers education institutions and is thus irrelevant.
(February 5, 2015 at 3:18 pm)Heywood Wrote: 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.
I don't think anyone would argue against that, myself.
(February 5, 2015 at 3:18 pm)Heywood Wrote: 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.
Given the applicable clauses of the state law, one might surmise that state officials would have to determine the religious value and content of a position prior to its being a restricted employment opportunity.
(February 5, 2015 at 3:18 pm)Heywood Wrote: 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.
This is the nub of the matter. The state grants that right under severe limitations, as a reading of its law reveals. It may turn out that certain positions must have Christians filling them in order to maintain religious integrity, and I'm fine with that, myself. I wouldn't expect a church to hire an atheist minister, I don't think homophobic churches should be forced to marry gays, and if the tour guide needs to know the Noah myth in detail, a Christian background may well be a fair qualification.
(February 5, 2015 at 3:18 pm)Heywood Wrote: 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.
Firstly, it doesn't clearly have that right for all the positions at the entertainment complex. That will have to be adjudicated. Secondly, if the judgement is that some or all of the positions should be available to non-Christians, there is ample precedent in tying Federal benefits to an employer with its adherence to the law.
If that's his best argument, it's a thin reed, with a small chance of protecting some positions. But -- I'm not a lawyer, so we'll have to see.
