Kentucky is a good place to be if you’re a fan of theocracy. The Bluegrass State currently is awash in bipartisan political and legal efforts to inject a narrow religious doctrine into the public and private lives of its citizens.

The most prominent example is the just-signed “informed consent” law that requires women seeking an abortion in Kentucky to meet face-to-face with a doctor 24 hours before the procedure is performed. This creates an obvious geographical hurdle for most women in Kentucky because the state has only two abortion providers – one in Louisville and one in Lexington. If you live in Paducah or Pikeville, what was already a long trip becomes a multi-day ordeal.

Photo via Ky.Gov
Photo via Ky.Gov

A Democrat-crafted loophole was amended just prior to the bill’s passing that allows the meeting to occur via online video chat, but in a state with lots of poor people and lots of poor infrastructure, many women simply don’t have regular access to such technology. Republican Senate President Robert Stivers dismissed such concerns, flippantly noting that public libraries have high-speed Internet. Nothing says “private medical consultation” like sitting in the middle of a library talking out loud to your doctor about your pregnancy.

There is no medical reason to require such an elaborate method of “informed consent” in abortion procedures. The law is simply a religiously motivated effort to further complicate a surgical process that should be as simple to authorize and perform as any other. It is designed to discourage women from exercising their medical autonomy and to create the kind of “undue burden” the Supreme Court has long warned against.

Elsewhere on the reproductive freedom battlefield, the General Assembly is feverishly trying to starve state funding from Planned Parenthood and anyone who speaks of them. Not to be outdone, Gov. Matt Bevin quickly moved to revoke an agreement between the state and Planned Parenthood that allowed the provision of abortion services at their Louisville location while they await formal approval of a license. Bevin claimed the organization’s application was deficient, but it is impossible not to assume his ire was motivated by his own religious distaste for abortion. After all, his concern for strict adherence to legal procedure has proven to be selective.

Speaking of which, it remains to be seen whether the General Assembly will revise the process for obtaining marriage licenses from its current clerk-based model to something more neutral and automated like an online system, or whether they will carve out new religious exemptions for state officials who can’t bear to serve their fellow citizens equally as required by the U.S. Constitution. The danger is that individual religious discretion will be elevated at the expense of those who don’t happen to share the faith of the public servants they depend upon.

Ken Ham at the Ark Park in progress.
Answers in Genesis founder Ken Ham.

Finally, a federal judge ruled that Kentucky must provide tax incentives to Answers in Genesis for their “Ark Park” despite the fact that they religiously discriminate in their hiring practices. In their job postings, for example, even positions like “merchandiser” require “confirmation of agreement with the AiG Statement of Faith.”

The Beshear administration had revoked the incentives, citing Establishment Clause concerns about using public funds to promote a discriminatory religious group. AiG sued in federal court, arguing that they otherwise met the incentive requirements and that it was unfair that they were denied while the state provides incentives to secular organizations such as the 21c hotel and Kentucky Kingdom.

Federal judge Gregory Van Tatenhove (a George W. Bush appointee) agreed with AiG, holding that Kentucky unconstitutionally excluded them from participating in the incentives program “on the basis of AiG’s religious beliefs, purpose, mission, message, or conduct.” The 71-page opinion also explains at length that AiG, despite building a religious theme park aimed at visitors (and employees) of their particular sect of evangelical Christianity, has a purely secular business relationship with the state and thus no provision of tax incentives can be construed as government endorsement of their religion.

But the judge based his reasoning on a questionable interpretation of what the Establishment Clause requires when it comes to “neutrality” between government and religion. “If a particular religious group receives more favorable treatment than a secular group, or if a secular group receives more favorable treatment than religious groups because they are secular, such treatment would violate the Establishment Clause,” he wrote.

But the point of the Establishment Clause is to prevent the installation of a state religion like the Anglican Church in England during the Colonial period. How, then, would giving incentives to non-religious groups violate that? The Constitution does not require the court’s conception of “neutrality,” because the anti-theocratic purpose of the Establishment Clause is not frustrated by giving preference to secular groups over religious ones. Giving tax incentives only to secular groups avoids entirely any risk of religious favoritism.

Any reasonable executive would appeal a court ruling restricting his or her authority in such a way, but Gov. Bevin, again out of apparent personal preference for a particular religious tradition, has decided not to seek review by the Sixth Circuit Court of Appeals. One has to wonder if he would be so accommodating had a Muslim religious organization, for example, sought state tax incentives for a Sharia Law Park and then vowed to hire employees based only on their devotion to the Quran.

What we are seeing is a steady, mostly bipartisan push toward Christian theocracy in the Bluegrass State. Despite being unconstitutional in all of its various permutations, it’s also bad long-term policy. Demographics change. New majorities replace old ones over time. By enshrining our preferred religious whims into permanent law now, we risk empowering through precedent future tyrants who may not share our particular values or seem so benevolent once they take control. Theocracy is all fun and games until your religion is the one no longer in charge.

The Founders of our country embraced the separation of church and state for a good reason. We would be foolish to reject their wise guidance.

Joe Dunman

Joe Dunman

    Joe Dunman is a Louisville, Kentucky attorney whose practice focuses on civil rights and employment law. He tweets @JoeDunman and blogs at www.joedunmanlaw.com.