Slate reports that the creator of “a Noah’s Ark–themed creationist amusement park” in Kentucky – an “Ark park” — (the same person who created the Creation Museum) has instituted a hiring policy which requires applicants to sign three documents before being hired: a “Salvation testimony,” “Creation belief statement,” and a “Confirmation of your agreement with the AiG statement of faith.”  Slate notes that “AiG is Answers in Genesis, Ham’s ministry and Ark Encounter’s parent company.”

As Slate puts it, “The park is quite openly instructing all applicants to pledge that they personally believe in creationist Christianity. If an applicant has other beliefs, her application to Ark Encounter isn’t welcome. … AiG’s statement of faith is no mere loyalty oath: It’s a four-part theological declaration mandating that all signatories accept dozens of fundamentalist Christian principles.”

Does this discriminate on the basis of religion, in violation of Title VII?  I mean, a very religious pre-req for hiring which excludes all non-believers?

Before you jump to conclusions, consider whether the job involves religious doctrine, such as teaching creationism or being a religious guide to the various amusements and events.   If so, your conclusion might be different if you then considered the “ministerial exception.”

The Ministerial Exception

The “ministerial exception” is written into Title VII, and states that:

“This subchapter shall not apply to an employer with respect to … a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”

Put simply, a religious insitution can avoid the anti-discrimination employment laws with respect to employees performing religious-related, or ministerial, functions.

Read the Supreme Court’s key decision in Hosanna-Tabor Church v. Equal Employment Opportunity Commission, which held that the First Amendment bars the government from interfering with the decision of a religious group to fire one of its ministers.  What this means is that the so-called “ministerial exception” exempts an employer from the application of the anti-discrimination laws, and an employee deemed a minister has no recourse to Title VII, the ADA, the ADEA, etc.   See our earlier discussion of this case.

Is this amusement park a religious insitution? Is it required to be to be entitled to the “ministerial exception?”

But What If Public Money Is Involved?

But consider this wrinkle:  The Ark could not obtain all the necessary financing so he turned to public funding.  Slate notes that “Kentucky’s Tourism Development Finance Authority gave preliminary support for $18.25 million in tax credits for Ark Encounter, citing [the creator’s] promise that the project would create 600 to 700 jobs.  … ultimately, the state could grant Ark Encounter up to $73 million in tax breaks.”

So, is using taxpayer money and discriminating in hiring on the basis of religion legal?

The Kentucky agency which oversees tax incentives stopped funding the project because of the discriminatory hiring issues:  “the Commonwealth does not provide incentives to any company that discriminates on the basis of religion and we will not make any exception for Ark Encounter, LLC.”

In response, Ark Encounter’s executive director said that the state was “requiring us to give up our religious freedom and our religious rights.”

Any comments?