No, Ken, That’s Not How The Constitution Works | Vol. 3 / No. 37.4

The First Amendment | Photo: Ed Uthman, CC BY-SA 2.0

Ken Ham, as you probably know, has now added a boat-shaped theme park to his list of religiously-themed properties. I wrote about it last week when it opened. And this week, the Freedom From Religion Foundation sent a notice to a thousand or so school districts that taking their children to visit this explicitly Christian missionary site is in violation of the Establishment Clause, just like they did a few months ago for the creationist museum it’s attached to.

Ken Ham is not pleased, and has been tweeting up a storm about how the FFRF is “bullying” schools into not paying him. And he should be a little annoyed — he does need to recoup the nearly hundred million dollars he spent building his theme park, after all, and institutional visits bring in the dough.

Public schools have every right to come @ArkEncounter for educational/historical purposes-guaranteed by constitution

But he’s wrong about the constitutionality of school visits — mostly.

Here’s what he writes on his site:

On the basis of the First Amendment of the US Constitution, public schools are absolutely free to take students on field trips (with appropriate parental permissions) to facilities like the Ark Encounter and Creation Museum, provided they are for historical, recreational, or educational purposes. FFRF has no right (and no legal basis whatsoever) to intimidate public schools as they are trying to do in this letter sent to more than 1,000 schools.

Mmm, not quite, Ken.

The way the Establishment Clause — “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” — works, the way it’s been implemented, is that public schools, as representatives of the state, can’t be seen to promote any one religion over any other religions, or religion over non-religion. They can’t endorse any religious viewpoint.

They couldn’t, therefore, take students on a field trip to the boat-shaped theme park except in very, very specific circumstances, especially since the explicit reason for the existence of “Ark Encounter” is, in Ham’s own words, “Our motive is to do the King’s [read: his god’s] business until He comes. And that means preaching the gospel and defending the faith, so that we can reach as many souls as we can.” It’s an experience explicitly designed to convert and prosyletize. Moreover, as a part of Ham’s creationist museum, its purpose is also to convince students that what they are taught in science class is false.

Students could not, therefore, be brought to the museum as a part of a history class, because it tries to rewrite the expressed and religiously-neutral history curriculum. In fact, from what I can see, there are very few educational purposes it could be put to. The only ones I can think of are as a part of a world religions class  — which would view it for what it is, one of many religion-specific experiences in the world — or else as part of a social studies class as an object lesson in current religious movements in America. Both of these would, I would think, absolutely require visits to other religious sites as well, for balance, otherwise it would read as an endorsement by the school.

And that’s part of why it couldn’t be for recreational purposes with the school either. Just the act of the institution (or anyone affiliated with it) taking students to the boat-shaped theme park would be considered an endorsement, at least without taking students to a bunch of other different religiously-themed (and atheism-themed) outings.

Even in an extra-curricular sense it would likely pose a problem.

See, the ACLU brought together a number of religious and non-religious organizations to agree on a set of guidelines so schools can know how not to violate the Establishment Clause. It’s really worth the read, and you should definitely read it if you’re a public school teacher in America. Part of that talks about extra-curricular club activities. A club affiliated with the school can be religiously-themed, — preventing that but not preventing other clubs would also violate the Establishment Clause — but if it is, teachers can’t “actively participate.” Taking even a specifically creationist-themed high school after-school club (if such a thing were to exist) to Ark Encounter would almost certainly constitute active participation, so if they were going to go, they’d have to take themselves. But that would be fine.

None of this is to say families couldn’t take their children, or that non-school-related people couldn’t get together and go in their free time. It just means that the Freedom From Religion Foundation is right to warn school districts not to go, because there are so few situations in which it would be legally defensible that they’re probably best just going to an art or science museum or some place with real educational value.

Anyway, you can read the whole FFRF letter here, the ACLU’s Joint Statement of Current Law On Religion in the Public Schools here, and if you’re feeling masochistic, you can read Ken Ham’s response here.


Thanks for reading! I only get paid in my own (and your) enthusiasm, so please like This Week In Tomorrow on Facebook, follow me on Twitter @TWITomorrow, and tell your friends about the site!

If you like our posts and want to support our site, please share it with others, on Facebook, Twitter, Reddit — anywhere you think people might want to read what we’ve written. Thanks so much for reading, and have a great week.


Richard Ford Burley is a human, writer, and doctoral candidate at Boston College, as well as an editor at Ledger, the first academic journal devoted to Bitcoin and other cryptocurrencies. In his spare time he writes about science, skepticism, feminism, and futurism here at This Week In Tomorrow.