Noah's Ark and the Sanctity of Private Property

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The subject
of a proposed religious theme park in Kentucky brings up an issue
near and dear to the heart of libertarians: the sanctity of private

There is some
controversy over the proposed construction of a $150 million Noah’s
Ark theme park on 800 acres near Interstate 75 in Kentucky. The
theme park – to be called Ark
– is a joint venture between Answers in Genesis
and Ark Encounter LLC. The former group already opened a $27 million
Creation museum in Petersburg, Kentucky, in 2007.

The proposed
park, to be completed by 2014, will feature live animals, event
venues, a children’s play area, a replica of the biblical Tower
of Babel, a 500-seat special effects theater, a reproduction of
a first-century Middle Eastern village, an aviary, and a 500 by
75 foot wooden ark to replicate the biblical Noah’s Ark. The
project is expected to create more than 900 jobs, attract 1.6 million
visitors in the park’s first year, and have an economic impact
of $214 million in the first year alone.

As expected,
religious groups generally hailed the project even as other groups
that focus on church-state issues had a problem with the project.
Contrary to critics of the theme park who think the educational
message of the park is u201Cunscientificu201D and u201Cembarrassing for the
stateu201D or that any jobs created would be u201Clow-payingu201D and u201Ctransient,u201D
Barry Lynn
, executive director of Americans United for the Separation
of Church and State, seemed to raise two main arguments against
the proposed park: First, Lynn pointed out that when Noah launched
the Ark the first time, he was not looking for government funding.
Second, he said that while the Constitution doesn’t prevent
someone from putting up a water park, it does prevent people from
putting up a religious one, such as Noah’s water park.

But both of
Lynn’s points are misguided.

Under Kentucky’s
Tourism Development Act, which exists to bring tourist attractions
to Kentucky, up to 25 percent of the cost of an approved project
can be recovered by developers via the state’s refunding to
them a portion of the sales tax paid by visitors on admission tickets,
gift sales, and food. Up to ten percent of the tax incentives can
be refunded per year for up to ten years. It is a common thing for
states to use various tax incentive measures to lure new businesses
to the state. The tax incentives here involve rebated sales tax
money collected that would not even be available if Ark Encounter
never opened its doors. No government funding will be used to construct
the park. And not only will no money be taken from the state budget,
the project will generate millions of dollars of government revenue
in the form of increased federal payroll taxes, state sales taxes,
and local real estate taxes. Like any for-profit business, Ark Encounter
will be forced to be a tax collector for the state. And like any
for-profit business, Ark Encounter is a legitimate candidate for
Kentucky’s tax incentives.

would, of course, argue that states shouldn’t collect sales
tax (the states of Alaska, Delaware, Montana, New Hampshire, and
Oregon have no general sales tax), force businesses to be tax collectors,
or take money from people in the form of sales taxes (or any other
kind of taxes) and redistribute it to private businesses –
for any reason. But Rev. Lynn is not arguing against the sales tax
incentives on libertarian grounds.

second argument is a veiled reference to the establishment clause
of the First Amendment. The principle of what he seems to be saying
is true: governments shouldn’t fund religious construction
projects or business operations. But this has nothing to do with
the First Amendment, which prohibits Congress from making a law
respecting the establishment of religion. The reception by religious-oriented
businesses of refunded sales tax collected is not establishing any
religion. And neither does it violate the prevailing broad view
of the federal courts on the First Amendment. Two groups that are
not normally on the side of religion, the ACLU and American Atheists,
The ACLU of Kentucky said that so long as giving tax incentives
to religious groups is nondiscriminatory, it does not violate the
Establishment Clause of the Constitution. American Atheists stated
that giving tax incentives to religious groups is only actionable
when there is a demonstrable bias in the sort of religious groups
who benefit.

From the perspective
of libertarianism, the real issue is not one of religion, but whether
governments should fund private construction projects or the operations
of any business no matter how it obtains the money to do so. But
not only should the government not do these things, it should not
have its own construction projects or operate any business. The
purpose of governments, should they exist at all, is to protect
their citizens’ life, liberty, and property from the violence
or fraud of others. Governments shouldn’t build sports venues,
run liquor stores, pick up garbage, or operate a bus service. These
goods and services should be left to the free market.

Whether Ark
Encounter or any other business – secular or religious –
should accept tax incentives of this nature is another matter.

First of all,
there are always strings attached to deals like this and there is
no exception here. Kentucky governor Steve
insists that u201CKentucky’s contract with developers
of the theme park will bar tax incentives if there is discrimination
in hiring based on religion.u201D Mike
, Senior Vice President of Special Projects for Answers
in Genesis, u201Cpledged to be mindful of ‘green’ building
standards and to use local contractors.u201D

And second,
there is the moral aspect since businesses that accept refunded
sales tax collected can be said to be receiving stolen funds. However,
some businesses may look at receiving a sales tax incentive as a
return of money confiscated from the business in the form of state
corporate income tax, unemployment tax, gross receipts tax, or franchise
tax. Thus, they might accept state money up to the amount of the
taxes they have paid.

So what does
all of this have to do with private property? Plenty.

There are
many principles to be noted here that relate to the sanctity of
private property. In a truly free society, there are a number of
things that a property owner should not be prevented from doing.

The owner
of a piece of property should not be prevented by governments or
anyone else from using his property as he sees fit. That means no
zoning laws, building codes, eminent domain, or environmental regulations
to strip someone of his property or limit its use.

The owner
of a piece of property should not be prevented by governments or
anyone else from constructing whatever he chooses on his property.
That might mean building a home, a business, a monument, or a nature

The owner
of a piece of property should not be prevented by governments or
anyone else from promoting any religion with his property. That
might be accomplished by putting up a church, a mosque, a synagogue,
a Buddhist temple, or a statue of Darwin.

The owner of
a piece of property should not be prevented by governments or anyone
else from operating any business on his property. That might be
a hospital, a bar, a retail store, or a theme park.

The owner
of a piece of property should not be prevented by governments or
anyone else from using whatever hiring practices they choose or
making any compensation agreement with employees in the course of
operating any business on his property. That might include low-paying
jobs, transient jobs, immigrant workers, non-union labor, out-of-town
and/or non-licensed contractors, and discrimination in hiring based
on religion or any other criteria.

The owner
of a piece of property should not be prevented by governments or
anyone else from using his property for any educational mission.
That might be promoting evolution or creation, free love or celibacy,
or ‘green’ building standards.

The owner
of a piece of property should not be prevented by governments or
anyone else from using his property to promote something that people
disagree with. That might mean something considered stupid, immoral,
unscientific, or embarrassing to the state.

The owner
of a piece of property should not be prevented by governments or
anyone else from doing whatever he wants on his property. That might
be erecting a cross or flag, burning a cross or flag, or creating
or filling in a wetland.

over a Noah’s Ark theme park – or the construction or
operation of any other business – vanishes when the property
rights of the park, its patrons, its critics, and the taxpayers
are all respected.

Reprinted from The Future of Freedom Foundation.

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