Full opinion text
OPINION & ORDER Gregory F. Van Tatenhove, United Statés District Judge Rising on what was once farmland near the community of Williamstown, Kentucky, is what purports to .be an exact replica of the ark that figures prominently in the Old Testament story of a great flood that covered the earth. The modern-day Noah that is constructing the replica hopes that its almost $100 million investment will produce a successful tourist attraction. At first, the Kentucky Tourism Cabinet, with the same hope, approved tax incentives for the project; But then, representatives of the Commonwealth, concerned that the project was going to “advance religion,” reversed course; the reason: providing the tax incentives would be contrary to the First Amendment protection from the state establishment of religion. ■ So, in essence, the question presented here is this: if a tourist attraction,, even one that as described here “advances religion,” .meets the neutral criteria for tax incentives offered by the Commonwealth of Kentucky, can the Commonwealth still deny the incentive for Establishment Clause reasons? -This opinion' is long but the answer to that question -is- short — no. The reasons this is true based on these facts follow. I A Under the Kentucky Tourism Development Act (KTDA), Ky. Rev, Stat. § 148.850, et seq., Kentucky provides an incentive program for qualifying tourism attractions “in order to advance the public purposes of relieving unemployment by preserving and creating jobs that would not exist if not for the incentives offered by the authority to approved companies, and by preserving and creating sources of tax revenues for the support of public services provided by the Commonwealth.” Ky. Rev. Stat. § 148.853(l)(b). A wide variety of projects have qualified for these incentives, including a broad spectrum of organ! izations with different purposes and presenting diverse messages. Such projects have included attractions such as the Newport Aquarium, 21C Museum Hotel, Kentucky Speedway, Kentucky Kingdom, and multiple bourbon visitor centers such as Buffalo Trace, Maker’s Mark, and Old Forester distilleries. [R. 1, ¶ 65.] Since the KTDA’s enactment the Commonwealth hás approved over $1 billion in new tourism investments, but so far AiG is the only applicant with a religious affiliation, [7d]. AiG distributes publications, and also provides museums, facilities, and exhibitions related to the Bible concerning “origins and history.” [R. 1, ¶¶ 13, 16.] In 2007 AiG opened its Creation Museum in Pe-tersburg, Kentucky, which has attracted approximately 2.3 million visitors. [R. 15-1 at 7.] In light of that success, AiG’s leadership approved a new project in October 2011 — “a theme park centered around á full-scale replica of Noah’s Ark” [id.], designed “as a means of expanding the ministry’s mission of proclaiming biblical authority and the Gospel of Jesus Christ.” [R. 1, ¶ 29; R, 18-1 .at. 13.] The initial concept included a variety of exhibits such as an extensive petting zoo and aviary with live shows, a pre-Flood town with retail and entertainment, a children’s play area, a replica of the Tower of Babel, geology and Biblical history exhibits with special effects, a first-century village, and several restaurants and food carts as well as rétail oútlets and kiosks. [R. 1, ¶¶ 45-46; R. 15-5 at 11-12.] After researching surrounding states for the best location for this theme park, AiG chose to build in Kentucky, not only because of its proximity to the Creation Museum, . but also because of the. unique incentives for tourist attractions Kentucky offered. [R. 15-1 at 8; R. 18-1 at 16.] Based on a 2008 marketing feasibility study, AiG knew the proposed Ark project would exceed the KTDA eligibility requirements and accordingly met with officials from the Kentucky Department of Travel and Tourism to discuss the project. [R. 15-1 at 8.] Afterward, AiG’s counsel provided a legal memorandum addressing concerns about separation of church and state. [Id. at 9.] State and local officials expressed enthusiasm for the project, and in October 2010 assured AiG that any legal concerns were fully addressed and that the project would qualify for the incentives under the KTD Act. [Id. at 10.] Also in October 2010, then-Govemor Beshear met with AiG leaders and pledged to publicly support AiG’s application. [Id. at 10.] After a 2009 study confirmed the Ark project would attract millions of tourists and create thousands of new jobs, officials from Indiana and Ohio expressed interest in finding property for the project in their states, but partly because of the KTDA incentives and the enthusiasm of Kentucky leaders for the project, AiG determined Kentucky was the best location, and in 2010 signed a contract for an option to purchase over 500 acres of land in Williamstown, Kentucky. [Id. at 9.] Also in 2010, AiG formed the separate non-profit subsidiary Crosswater Canyon and another subsidiary Ark Encounter, LLC (AE) to oversee and manage the Ark attraction. [R. 1, ¶¶ 50-51; R. 15-1 at 9.] In November 2010, AE submitted its first application for the economic incentives under the KTDA. [R. 15-1 at 10; R. 15-2.] According to Plaintiffs, AE agreed to another option to purchase additional acreage in Grant County soon afterward, based on Kentucky officials’ enthusiastic endorsement. [R. 15-1 at 10.] On December 1, 2010, AiG held a joint press conference with then-Governor Beshear in Frankfort to publicly announce the Ark Project as a new tourist attraction in Kentucky. [Id. at 11.] At the conference AiG leaders explained the religious aspects of the project, including their intention for it “to lend credence to the biblical account of the Flood and Noah’s Ark,” and also to include “a Gospel message.” [Id. at 11.] During the conference, Governor Beshear announced his enthusiasm for the project, commenting that it did not raise any constitutional issues and that he believed there would be no problems in securing its approval. [Id. at 11.] On December 20, 2010, the Kentucky Tourism Development Finance Authority (KTDFA) gave preliminary ' approval of AE’s first application and entered into the first Memorandum of Agreement (MOA) with AE, LLC, reflecting the Commonwealth’s intent to provide tax incentives subject to satisfying the KTDA’s requirements. [R. 15-4.] As part of the agreement, AE retained and paid for an independent consultant, Hunden Strategic Partners (Hunden) to confirm that the Ark project met the necessary economic impact requirements. [Id. at 11-12.] On May 6, 2011, Hunden submitted a report to state officials concluding that the project met all the objective criteria required by the KTDA. [R. 15,5.] On May 19, 2011, the KTDFA granted final approval for the Ark Project to receive the KTDA’s tax incentives and entered into a Tourism Development Agreement (TDA) with AE, LLC, which stated that the Ark project was eligible to receive incentives of up ,to 25% of approved costs incurred through May 19,.2014, and affirmed that without that assistance “the Company would not engage in the Project.” [R. 15-6; R. 15-1 at 12.] The TDA also contained a provision that required AE to waive its right to exercise religious preferences in hiring for the Ark project.- a provision not included in agreements with other participants in the program. [Id.] AE accepted the language at the time because it was told that it was obligatory, and because AiG intended to rely on private investment so as to include other “safeguards to preserve the religious mission and identity of their project.” [R. 15-1 at 11-12; R. 18-1 at 16.] After obtaining final approval for the project, AiG exercised' its option to purchase land in Grant County and prepared the offerings for private investors. [R. 15-1 at 12.] According to AiG, however, the economic downturn resulted in the investor subscription process taking longer than anticipated, and AiG had to reduce its budget for the project and change its focus to funding an initial phase and then complete the project under a phased development plan. [Id.; R. 18-1 at 16.] Partly as a result, AiG’s board of directors changed from the private investment model to utilizing taxable bonds as the primary financial structure for the Ark,project. [R. 15-1 at Í3.] Because of these changes, the project could not be completed by May 2014 as originally anticipated, and state officials advised that á new application was required. [Id. at 13.] Accordingly, AE submitted a' second application on March 28, 2014, that was “virtually identical” to the first application except for specifying that the project would be completed in several phases. [Id.] ■ The purpose and religious nature of the Árk Project remained the same. On April 24, AE received a letter from William Dexter, general counsel for the Kentucky Department of Travel and Tourism, stating that “Additional information has come to' our attention that further describes the Ark which requires us to inquire further to determine the suitability of the project for state incentives.” [R. 15-8 at 1.] The only such information cited by the letter was a recent press conference in which the president of AiG, Ken Ham, and the director of museum design described the evangelical mission of AiG and noted that the third floor of the Ark project would contain an exhibit called “Christ the Door Theater” in furtherance of AiG’s evangelistic mission. [Id, at 1-2.] Based on that press release, ■ Dexter’s letter stated that providing tax incentives to the project would “amountn to impermissible state funding of religious indoctrination.” [Id. at 2.] The letter further stated that, in light of the statements at the press conference the Ark Project “has changed from a tourism attraction to an extension of AiG’s ministry,” and that the Cabinet could not proceed with the application without additional information about “what specific activities will — and will no.t — take place on the Ark or the surrounding property.” [Id.] ■ AiG maintains that it had always been forthright about the Christian nature and evangelistic purpose of the Ark project, and as early as 2009 informed state officials of its religious nature and gave officials a tour of the Creation Museum “so they could get a sense of how the Ark attraction would be presented to the general public.” [R. 15-1 at 8, 14.] AiG concedes that between the first and second applications, some further details about the project were refined, including the addition of an exhibit called the “Christ the Door” theater designed to present an evangelistic message. [R. 1, ¶¶ 137-38,159.] This exhibit apparently triggered Defendants’ concern about religious indoctrination. [R. 15-8, R. 18-1 at 15-17.] In response to Dexter’s April 2Ó14 letter, AiG’s counsel'wrote to clarify that no religious indoctrination would take place in the Park, no one would be forced to accept any views presented there, and that the park would be open to everyone regardless of their religious beliefs. [R. 15-9.] . After further correspondence over questions of “religious indoctrination,” Dexter informed AiG’s counsel that AiG had adequately assured the Cabinet “that the Ark project has not materially changed from that previously submitted in its original 2010 application” other than the phased development-plan, and that AiG also had assured the Cabinet that “no visitor to the attraction will be subject to religious proselytizing or be forced to accept a certain view or interpretation of Scripture, nor will the project function as a church or contain a place designated for religious worship.” [R. 15-12.] Based on those assurances the letter stated that the Secretary would recommend consideration of AE’s application for preliminary approval, but included a stipulation that AE must not discriminate on the basis of religion in hiring, which was not required by the KTDÁ and was not imposed on any other applicants. [Id.; R. 15-1 at 15.] AiG’s counsel reiterated that as a religious organization AiG should be ' able to maintain its identity through its hiring practices without violating federal or state employment law. [R. 15-13.] Secretary Stewart, however, wrote another letter on June 24, 2014, stating that he would recommend the application for approval based on the terms stated in Dexter’s previous communication, but that if AE did not want to proceed .on that basis the application would be withdrawn from consideration. [R. 15-14.] AiG’s counsel met with then-Secretary Stewart and his counsel on July 9, 2014, and asserted that under the modification in the corporate structure for the project, AiG could utilize religiqus preferences, in hiring but agreed to fully comply with all applicable federal and state laws relating to hiring and otherwise. [R. 15-1 at 16.] The state officials indicated they understood AiG’s concerns and said they would rely upon AiG’s earlier assurances that no visitor to the Park would be forced to accept the views presented there. [Id.] According to Defendants, the Cabinet believed that' AiG’s representation- that it would comply with all applicable state and federal laws meant “AiG would not proselytize or engage in discriminatory hiring.” [R. 24 at 14.] AiG, however, believed that as a religious organization it qualified for an exemption in Title VII that would allow them to hire those who' agreed with their religious views.-[Id. at' 11.] Accordingly, in August 2014, AiG posted employment positions for various jobs related to the Ark project, which included a requirement that applicants agree with AiG’s státement of faith. [R. 18-1 at 17.] On July 29, 2014„ the Ark project received preliminary approval for the KTDA incentives. [R. 15-16.] The second MOA did not contain any requirements or agreement's concerning hiring practices other than an agreement that AE comply with all applicable state and,federal laws and regulations,' as previously agreed. [Id. at 5.] On August 27, however, Secretary Stewart sent AiG a letter objecting to a recent job posting on AiG’s’ website. Apparently, on August 22, 2014, a group called Americans United for Separation- of Church.and State (AU) sent a letter to Governor Beshear and the KTDFÁ protesting AiG’s participation in the tourism incentive program and specifically contending that AiG’s job postings requiring applicants to agree with AiG’s statement of faith should prevent AiG from being able to benefit from the incentives offered under the KTDA. [R.' 15-18.] Secretary Stewart referenced these job postings, stating that based on their requirement that applicants agree with AiG’s statement of faith, “the Commonwealth doesn’t believe that Ark Encounter, LLC will be complying with state and Federal law in its hiring practices.” [R. 15-17.] Based on that belief, the Commonwealth was “not prepared to move forward with consideration of the application for final approval” without AE’s assurance that it would not discriminate on the basis of religion in hiring. [Id.] In a subsequent letter, Secretary Stewart stated without any support or citation to legal authority that “[t]he Commonwealth does not provide incentives to any company that discriminates on the basis of religion,” and again insisted that AE provide “express written assurance” that “it will not discriminate in any way on the basis of religion in hiring for the project” and must “revise any and all [job] postings for the Ark Encounter project accordingly, for its application to be considered for final approval.” [R. 15-20.] On December 3, 2014, Hunden submitted its independent report on AiG’s second application. [R. 15-21; R. 18-1 at 18.] Because of the, shift to a phased development, the second Hunden report focused primarily on the first-phase Ark attraction, but concluded that it still qualified as “an entertainment facility” under Ky. Rev. Stat. § 148.851. [R. 15-21 at 5, 8.] Despite the change in focus, the report estimated that the project still would add several hundred new jobs, would attract 92.1 percent of its visitors from outside of Kentucky by the peak year of operation, and is “expected to have a net positive economic impact on Kentucky as well as a positive net fiscal impact on Kentucky,” even “after subtracting out expected KTDA rebates.” [Id. at 9, 10-11]. After reviewing the changes to the project, the second Hunden report again concluded that the Ark Project “meets all criteria identified by the [KTDA].” [Id. at 13.] Nevertheless, on December 10, 2014, Secretary Stewart sent a letter to AiG stating that “based on various” job postings on AiG’s and AE’s websites, “reports from Ark Encounter investors meetings,” and recent correspondence, the Ark project appeared to have “evolved” from simply a tourist attraction “to an extension of AiG’s ministry,” and therefore could not qualify for the tax incentives. [R. 15-23 at 1.] The letter expressly stated two reasons for the Commonwealth’s denial of AiG’s second application: “1) the Commonwealth will not grant incentives to a company that intends to discriminate in hiring its employees based on religion; and 2) [i]t is a violation of the Constitution for the Commonwealth’s incentives to be used to advance religion.” [Id] No legal authority was cited in support of this conclusion, nor were any references made to the KTDA’s requirements. [Id. at 2.] The only factual support referenced was a February 2014 press conference at the Creation Museum where AiG President Ken Ham stated that the Ark Project would present “an evangelical, yet entertaining, Gospel message”; a “Hammer & Peg ceremony” on May 1, 2014 where supporters of the project were told about the Christ the Door theater exhibit; the website design for the Ark featuring the Christ the Door theater and a room called “Why the Bible is True”; and a fundraising letter in which the Ark’s purpose was characterized as evangelistic. [Id. at 2.] AiG is currently proceeding with construction of the first phase, but contends that the Commonwealth’s denial of the incentives impacts the “projected cash-flow, budgeting, and planning” of the remaining phases. [R. 15-1 at 19-20; R. 24 at 14.] Accordingly, AiG moves for a preliminary injunction, arguing, that the rejection of their application violates their Constitutional rights, under the First and Fourteenth Amendments, [R. 15-1.] In response, the Commonwealth moves to dismiss the Complaint on the grounds that allowing ■ AiG’s participation in the program violates the prohibition against establishing a religion under both the federal and state constitutions. [R. 18.] B The KTDA program provides “a sales tax incentive based on the Kentucky sales tax imposed on sales generated by or arising at the tourism development project.” Ky. Rev. Stat. § 148.853(3)(a). The incentive allows an approved project to recover the lesser of either its total amount of sales tax liability or up to twenty-five percent (25%) of its approved development costs over a period of ten (10) years. § 148.853(3)(b). The Act specifically states that these incentives “are proper governmental and public purposes for which public moneys may be expended,” and also states that “the creation or expansion of tourism development. projects is of paramount importance mandating that the provisions [of the Act] be liberally construed and applied in order to advance public purposes.” § 148.853(l)(c)-(d). To qualify for these incentives, the proposed project must fall into one of several listed categories and meet the requirements for that category. Ky. Rev. Stat. § 148.853(2). The parties do not appear to dispute that the proposed project at issue falls into the category of “a tourism attraction project.” A proposed project also must meet the ■ following - requirements: (1) its total eligible costs must exceed $1,000,000; (2) the attraction''must be open to the public at least one hundred (100) days of the year including the first year of operation; and (3) the project must attract at least twenty-five percent (25%) of its visitors from people who reside outside the Commonwealth. § 148.8533(2)(a). Applications for the program are submitted to the Secretary of Tourism, Arts and Heritage Cabinet for initial review, and if the cabinet determines that the project appears to meet the above requirements, the Secretary forwards the application to the KTDFA with a recommendation of preliminary approval. Ky. Rev. Stat. § 148.855. Once preliminary approval is granted, the cabinet selects an independent consulting firm to analyze the data supplied by the eligible company in order to determine whether the proposed project will meet the above requirements, and whether- it will have a net positive fiscal impact on the Commonwealth by increasing tax revenues in excess of the incentives given to the company and without adversely affecting existing employment. § 148.855(4). The consultant then reports to the Office of the State Budget Director,'and after reviewing that report along with all other relevant materials, the Secretary determines whether to recommend final approval of the project. §' 148.855(6)-(9). II A “A preliminary injunction is an extraordinary remedy which should be granted only if the rhovant carries his or her burden of proving that the circumstances clearly demand it.” Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 805 F.3d 566, 573 (6th Cir.2002) (citing Leary v. Daeschner, 228 F.3d 729, 736. (6th Cir.2000)), In reviewing a motion for a preliminary injunction pursuant to Federal Rule of Civil Procedure 65, district courts must consider (1) whether there is a likelihood of success on the, merits of .the plaintiffs claim; (2) whether the plaintiff will suffer irreparable, harm if the injunction is not granted; (3) whether others would be harmed by granting the injunction; and (4) whether the public good is served by issuing the injunction. Leary, 228 F.3d at 736 (citing McPherson v. Michigan High Sch. Athletic Ass’n, 119 F.3d 453, 459 (6th Cir.1997) (en banc)). “These factors are to be balanced against one another and should not be considered prerequisites to the grant of a preliminary injunction.” Id. (citing United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Reg’l Transit Auth., 163 F.3d 341; 347 (6th Cir.1998)). With that said, “‘[w]hen a party seeks a preliminary injunction on the basis of a potential violation of the-First Amendment, the-likelihood of success on the merits often will be the determinative factor.’ ” Jones v. Caruso, 569 F.3d 258, 265-66 (6th Cir.2009) (quoting Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.1998)). In other words, “ ‘because the questions of harm to the parties and the public interest cannot be addressed properly in the First Amendment context without first determining if there is a constitutional violation, the crucial inquiry often is ... whether the [regulation] at issue is likely to be found constitutional.’” Id. (quoting Connection Distrib. Co., 154 F.3d at 288); see also Congregation Lubavitch v. City of Cincinnati, 923 F.2d 458, 460 (6th Cir.1991) (Because harm could be suffered by either party, and because the public interest depended on the correct application of First Amendment principles, the court’s decision turned on the likelihood of success on the merits). Accordingly, the resolution of the present case will turn on the question of the First Amendment claims at issue. In a motion'to dismiss pursuant to Rule 12(b)(6), “[t]he defendant has the burden of showing that the plaintiff has failed' to state a claim .for relief.” DirecTV, Inc. v. Treesh 487 F.3d 471, 476 (6th Cir.2007) (citing Carrer v. Punch, 946 F.2d 451, 454-55 (6th Cir.1991)). When reviewing a Rule 12(b)(6) motion, the Court “construe[s] the complaint in the light most favorable to the plaintiff, accept[sj its allegations as true, and draw[s] all reasonable, inferences in favor of the plaintiff.” Id. (citation omitted). Such a motion “should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in sup-. port of his claim which would entitle him to relief.” Id. (quoting Ricco v. Potter, 377 F.3d 599, 602 (6th Cir.2004)). Moreover, the facts that are pled must rise to the level-of plausibility, not just possibility— “facts that are merely consistent with a defendant’s liability ... stop[ ] short of the line between possibility and plausibility.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). According to the Sixth Circuit, “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” ’ Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). B The First Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, see Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), provides that “Congress shall make no law respecting an establishment of-religion, or prohibiting the free exercise thereof.” U.S. Const. Amend. 1. These two clauses guarantee, “at a minimum ... that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a. way which ‘establishes a [state] religion or religious faith, or tends to do so.’ ” Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (quoting Lynch v. Donnelly, 465 U.S. 668, 678, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984)); Everson v. Board of Ed. of Ewing, 530 U.S. 1, 15-16, 120 S.Ct. 1942, 147 L.Ed.2d 1 (1947). “From the outset, the Court has construed the give-and-take language of the two clauses to forbid government from using its -power either to ‘favor’ or to ‘handicap’ any one religion or religion in general.” American Atheists, Inc. v. City of Detroit, 567 F.3d 278, 288 (6th Cir.2009) (citing Everson v. Board of Ed. of Ewing Tp., 330 U.S. 1, 18, 67 S.Cf. 504, 91 L.Ed. 711 (1947)). The two clauses are often in tension with each other, as in the case at hand, because “[while the two Clauses express complementary values, they often exert conflicting pressures.” Cutter v. Wilkinson, 544 U.S. 709, 719, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005); see also Walz v. Tax Comm’n of City of NY, 397 U.S. 664, 668-669, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970) (“The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other.”). Here, because AiG argues the Commonwealth’s actions violate the Free Exercise Clause while the Commonwealth defends its actions by arguing that to do otherwise would violate the Establishment Clause, the instant dispute encompasses the interplay between these two clauses. At the outset, it is worth noting that .some interaction between church and state is “inevitable”; the question before us is whether such interaction actually creates an impermissible establishment of religion. Johnson v. Econ. Dev. Corp. of Cty. of Oakland, 241 F.3d 501, 515 (6th Cir.2001); Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 123, 103 S.Ct. 505, 74 L.Ed.2d 297 (1982) (“some limited and incidental entanglement between church and state authority is inevitable in a complex modern society”). When analyzing applicable First Amendment, standards,- Supreme Court Justice Breyer once noted -that the Supreme. Court “has found no single mechanical formula that can accurately draw the constitutional line in every case,” and concluded that “no- exact formula; can dictate a resolution to [] fact-intensive cases.” Van Orden v. Perry, 545 U.S. 677, 699-700, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (Breyer, J., concurring in judgment). He further cautioned that in such “difficult borderline ■cases,” there is “no test-related substitute for the exercise of legal judgment.” Id. at 700, 125 S.Ct. 2854. He warned that such judgment,, however, “must reflect and remain faithful to-the- underlying purposes, of the Clauses, and. it must take account of context and consequences measured in light of those purposes.” Id. at 700, 125 S.Ct. 2854. In light of. this caution, i it is worthwhile to keep ,in mind the overall purpose of the First Amendment when applying the relevant standards. As the Sixth' Circuit has noted, “[f]or most of our history as an independent nation, the words of the constitutional prohibition against enactment of any law ‘respecting an establishment of religion’ were commonly assumed to mean what they literally said.” Am. Civil Liberties Union of Ohio v. Capitol Square Review & Advisory Bd., 243 F.3d 289, 293 (6th Cir.2001). When considering the history and context of the Establishment Clause, “it is clear that.the principal thrust of,the prohibition was to prevent any establishment by the national government, of an official religion, including an established church such as that which existed in England at the time the American colonies won their independence from the Crown.” Id. In England, the Church of England had special rights and privileges given by the government, English citizens paid taxes specifically collected for the support of the established church, those who dissented with the established church’s teachings were fined, jailed, or otherwise punished, and most government positions were closed to any who disagreed with the established church’s doctrine. Id. (citations omitted); Everson, 330 U.S. at 8-9, 67 S.Ct. 504. ' Many settlers who came to America were seeking to avoid such control by the national church and wanted to set up then-own churches free from government interference. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, — U.S. —, 132 S.Ct. 694, 702, 181 L.Ed.2d 650 (2012). Several American colonies, however, still had established churches with laws ensuring government-appointed ministers, compulsory tithes, and taxes for paying ministers’ salaries and maintaining church property. See id. at 703; Everson, 330 U.S. at 10-11, 67 S.Ct. 504. Even after independence," in many states “attendance at the established church was mandatory, and taxes were levied to generate church revenue. ... Dissenting ministers were barred from preaching, and political participation was limited to members of the established church.” Town of Greece, N.Y. v. Galloway, — U.S. —, 134 S.Ct. 1811, 1837, 188 L.Ed.2d 835 (2014) (Thomas, J., concurring opinion) (citations omitted). The First Amendment- was adopted in this context and with the purpose of preventing such practices. Those who drafted and ratified it sought to prohibit the new government from filling ecclesiastical offices, setting up a national church, imposing forced tithes, or compelling dissenters to worship in a particular way or supports particular church. See Hosanna-Tabor, 132 S.Ct. at 703; Everson, 330 U.S. at 11-15, 67 S.Ct. 504; Am. Civil Liberties Union of Ohio, 243 F.3d at 293-94. In emphasizing that “an element central to the original understanding of ‘an establishment of religion’ was that of coercion,” the Sixth Circuit noted that James Madison, “the Father of "the First Amendment,” stated that the meaning and intent of the Establishment Clause was “that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.” Am. Civil Liberties Union of Ohio, 243 F.3d at 294 (quoting 1 Annals of Congress 758 (Gales & Seaton’s ed. 1834) (Aug. 15, 1789) (emphasis added in ACLU of Ohio)) (internal quotation marks omitted). The court went on to emphasize that “the actions of the First Congress demonstrate, in sum ... ‘that to men active in public affairs when the First Amendment was adopted, the Establishment Clause meant just what it said.” Id. at 297. In other words, “the Establishment Clause was meant to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government.” Id. at 298 (quoting 3 Joseph Story, Commentaries. on the. Constitution of. the United States § 1871, at 728 (1833)). “The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty." Town of Greece, 134 S.Ct. at 1837 (quoting Lee, 505 U.S. at 640, 112 S.Ct. 2649 (Scalia, J., dissenting)). On the other hand, however, “the Establishment Clause does not compel the government to purge from the public sphere all that in any way-partakes of the religious.” Van Orden, 545 U.S. at 700, 125 S.Ct. 2854. l The so-called Lemon test is “[t]he long-standing (but not always applied) test for determining whether government ac-. tion violates the Establishment Clause.” Am. Civil Liberties Union of Kentucky v. Grayson Cty., Ky., 591 F.3d 837, 844 (6th Cir.2010). In applying that test, courts generally uphold government action as long as the action or statute 1) has a “secular legislative purpose”; 2) “its principal or primary effect must be one that neither advances nor inhibits religion”; and 3) it does “not foster an excessive government entanglement with religion.” Id.; Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); see also Satawa v. Macomb Cty. Rd. Comm’n, 689 F.3d 506, 526 (6th Cir.2012) (clarifying the use of the Lemon test in the Sixth Circuit). “If we cannot answer “yes” to the first question and “no” to the second two, the challenged action violates the Establishment Clause.” Satawa, 689 F.3d at 526. Since Lemon, the Supreme Court has altered the first two prongs somewhat. First, the Court has emphasized that the government’s stated secular reason or purpose must be “genuine, not a sham, and not merely secondary to a religious objective.” McCreary County v. ACLU, 545 U.S. 844, 865, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005). Concerning the second prong, the Supreme Court has also found that governmental action has a religious primary effect in situations where it “is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by. the nonadherents as a disapproval, of their religious choices.” County of Allegheny v. ACLU, 492 U.S. 573, 595, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989); see also ACLU of Kentucky, 591 F.3d 837 at 844-45 (explaining and citing the same). In Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997), the Court “folded the entanglement inquiry into the primary effect inquiry,” because both rely on the same kinds of evidence, and because the degree of entanglement relevant to the third Lemon test prong “has implications for whether a statute advances or inhibits religion.” Zelman v. Simmons-Harris, 536 U.S. 639, 668-69, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002) (O’Connor, J. concurring opinion). In sum, at. the most basic level “the Establishment Clause requires government to enact laws that are neutral as to religion, do not have the purpose of advancing religion and do not have the primary effect of advancing religion.” Am. Atheists, 567 F.3d at 288-89 (alteration in original). As an initial matter, in analyzing the purpose of the government action at issue,' we must keep in mind that “[t]he defining principle of Establishment Clause jurisprudence is that the First Amendment mandates government neutrality between religion and religion, and between religion and nonreligion.” ACLU of Kentucky, 591 F.3d at 844 (quoting McCreary County, 545 U.S. at 860, 125 S.Ct. 2722) (internal quotation marks omitted); see also Am. Atheists, Inc., 567 F.3d at 289 (“The most essential hurdle that a government-aid program must clear is neutrality — that the program allocates benefits in an evenhanded manner to a broad and diverse spec-tram of beneficiaries.”). This principle of neutrality “does not foreclose [government] from ever taking religion into account.” Lee, 505 U.S. at 627, 112 S.C.t. 2649 (Souter, J., concurring). It does, however, prohibit the government from “favor[ing] one religion over another, or religion over irreligión, religious, choice being the . prerogative of individuals under the Free Exercise Clause.” McCreary Cty., Ky., 545 U.S. at 875-76, 125 S.Ct. 2722. Indeed, government neutrality is “an objective of the Establishment Clause, and a sensible standard for applying it,” as well as “a prudent way of keeping sight of something the Framers of the First' Amendment thought important.” Id. at 876, 125 S.Ct. 2722; see also Walz, 397 U.S. at 669-70, 90 S.Ct. 1409. .a In determining the government’s purpose under the first prong 'of the Lemon test, “[ujnless it seems to be a sham ... the government’s, assertion of a legitimate secular purpose, is entitled to deference.” ACLU of Ohio v. Capitol Square, 243 F.3d at 307 (citations and internal quotation marks omitted). Here, the KTDA specifically states that its purpose is a public one “of relieving unemployment by preserving and creating jobs” through tourism projects and also creating sources of tax revenue through the projects and their attraction to out-of-state tourists. Ky. Rev. Stat. § 148.853(l)(c)-(d). Clearly, bringing non-residents into Kentucky who will spend money on food, lodging, gas, and tourist attractions will increase revenues and benefit the state’s economy through jobs and spending. Such a purpose is plainly secular. Neither the language nor application of the KTDA indicate that its purpose is to aid or give preference to any religion or religious sect. Its language is-entirely neutral. The groups that have qualified for the tax-incentive so far include a wide variety of tourist -attractions promoting such diverse interests as bourbon,'art, and roller coasters. [R. 1, ¶65.] There is no language in the Act itself or in the application requirements addressing religious affiliations or excluding groups based on religion. The listed criteria required for qualifying projects to receive the incentive; are entirely secular, such as eligible costs, days of the year the project will be open, and the percentage of out-of-state visitors it is likely to attract; and such requirements do not address the content, subject matter, or religious affiliation of any of the projects. See Ky. Rev. Stat. § 148.853. Thus, the. Act says nothing that could in any way be construed as granting a favor or preference to, any religion. Moreover, neither party alleges, nor does the evidence presented thus far suggest, that the Commonwealth’s implementation or application of the Act has a secret or masked purpose of advancing or promoting religion. Accordingly, the Act has a secular purpose and meets the first .prong of neutrality. See, e.g., Johnson, 241 F.3d at 512 (a state’s “decision to assist businesses in their operation in order to create and maintain jobs — regardless of the. type of business — evidences a- purpose that is both secular " and understandable,” - and concluding that the strong publie interest in promoting-and retaining commercial enterprises whether sectarian or secular satisfied the first prong of the Lemon test) (internal citations and quotation marks omitted). - The issue here appears to be the application of the tourism program, and specifically its application to AiG. “[T]he government violates the Establishment Clause when it acts with the predominant purpose of advancing religion.” ACLU of Ky. v. McCreary County, Ky., 607 F.3d 439, 445-46 (6th Cir.2010) (quoting McCreary IV, 545 U.S. at 860, 125 S.Ct. 2722) (internal quotation marks omitted). The Commonwealth’s concern that allowing AiG to participate in the program would violate the Establishment Clause because of AiG’s religious purpose misunderstands the concept of neutrality. It is the government’s purpose that must be secular, and therefore the KTDA must be neutrally applied to all applicants regardless of religious affiliation. 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. See McCreary Cty., Ky., 545 U.S. at 875-76, 125 S.Ct. 2722; Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968); Am. Atheists, 567 F.3d at 289. Because the KTDA is neutral, has a secular purpose, and does not grant preferential treatment to anyone based on religion, allowing AiG to participate along with the secular applicants cannot be viewed as acting with the predominant purpose of advancing religion. ACLU of Ky, 607 F.3d at 445-46. If AiG, or any other group, meets the neutral, secular requirements of the KTDA, and their qualification for the program is determined according to the neutral criteria .specified in the Act, and not because of their religious affiliation, then the first prong of the Lemon test will be adequately met. Another part of the purpose analysis asks whether “an 'objective observer, one who takes'account of the traditional external signs that show up in the text, legislative history, and implementation of the statute, or comparable official act”-would perceive it as a state endorsement of religion. McCreary Cnty., Ky., 607 F.3d at 445 (quoting McCreary IV, 545 U.S. at 862, 125 S.Ct. 2722) (internal quotation marks omitted); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000). As stated above, however, there' is nothing in the text, legislative ■ history; or implementation of - the KTDA that would lead a reasonable observer to think it is an endorsement of religion. Thus, the question is whether approving AiG’s application would lead to a perception that the Commonwealth is endorsing AiG’s religious beliefs. We must keep in mind that AiG’s proposed project is an amusement park centered on the Biblical story of Noah’s Ark, but it is not a non-profit or a church. If the Ark Project meets the stated criteria for participation in the program, then by definition it is a tourist attraction, and as such, clearly has an entertainment element as well as a religious component. Tourists will pay money in order to gain entrance into the theme park, people will buy food and drinks there, and while many may come hoping to learn something about the Bible, the park will likely attract people of all different viewpoints. The reasonable, observer would not think, that AiG’s participation along with other qualified applicants in a facially neutral tourism program has the predominant purpose of advancing religion, nor would a reasonable observer think that Kentucky is officially endorsing AiG’s Christian beliefs any more than a reasonable observer would believe that the Commonwealth is officially endorsing a particular type of bourbon or artwork because Maker’s Mark or Hotel 21C received the tax rebate. “This Court has long recognized that the government may ... accommodate religious practices ... without violating the Establishment Clause.” Cutter, 544 U.S. at 713, 125 S.Ct. 2113 (quoting Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 144-145, 107 S.Ct. 1046, 94 L.Ed.2d 190 (1987)) (internal quotation marks omitted). As Defendants themselves point out, “there is room for play in the joints between the Free Exercise and Establishment Clauses, allowing the government to accommodate religion beyond free exercise requirements, without offense to the Establishment Clause.” Id. at 713-14, 125 S.Ct. 2113 (quoting Locke v. Davey, 540 U.S. 712, 718, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004) (internal quotation marks omitted)); Walz, 397 U.S. at 669, 90 S.Ct. 1409. Thus far AiG is the only group that has applied for the benefit that also has overt religious affiliations and a religious component to its proposed tourist attraction. If AiG meets all the neutral criteria of the program but is excluded solely because of its religious affiliation, message, or beliefs, then the KTDA is not being applied neutrally. Conversely, the neutral and equal application of the Act’s criteria for qualifying projects “confers no privileged status on any particular religious sect, and singles out no bona fide faith for disadvantageous treatment.” Cutter, 544 U.S. at 724, 125 S.Ct. 2113 (finding law did not violate Establishment Clause when it did not give special treatment to particular religious sect over others). Thus, the Court concludes that “the evenhanded language of the program, the religion-neutral purposes behind the program,” and the “wide array of entities ... [both] secular and religious” that have participated in the program “foreclose any claim that the program was implemented with the purpose of advancing religion.” Am. Atheists, 567 F.3d at 291. b Under the second prong of the Lemon test, as revised by Agostini, the government program at issue does not have the primary effect of either advancing or inhibiting religion “if it: (1) does not result in government indoctrination of religion; (2) does not define its recipients by reference to religion; or (3) create an excessive government entanglement with religion.” Johnson, 241 F.3d at 513. First, a government program could have the “primary effect” of advancing religion “if it leads to religious indoctrination that could reasonably be attributed to government action.” Am. Atheists, 567 F.3d at 291 (quoting Mitchell v. Helms, 530 U.S. 793, 809, 120 S.Ct. 2530, 147 L.Ed.2d 660, (2000)) (plurality opinion) (internal quotation marks omitted); see also Agostini, 521 U.S. at 223, 117 S.Ct. 1997 (“government inculcation of religious beliefs has the impermissible effect of advancing religion”). Despite Defendants’ concern that AiG’s religious message could be attributed to the Commonwealth, as long as the Commonwealth provides the KTDA incentives “to religious and secular entities alike” and “allocates] the benefits based on criteria that have nothing to do with religion,” the Commonwealth would adequately demonstrate that it “neither endorsed nor approved of [AiGj’s religious teachings.” Am. Atheists, 567 F.3d at 291. No government indoctrination, occurs if “the government, seeking to further some legitimate secular purpose, offers aid on the same terms, without regard to religion, to all who adequately further that purpose [.]” Johnson, 241 F.3d at 513 (quoting Mitchell, 530 U.S. at 809, 120 S.Ct. 2530). The concern about indoctrination is not a question of whether the entity receiving the benefit engages in some kind of religious instruction as much as it is a question of whether such religious indoctrination “could reasonably be attributed to governmental action.” Johnson, 241 F.3d at 513 (quoting Mitchell, 530 U.S. at 809, 120 S.Ct. 2530). As noted above, in determining the purpose attributed to the government, the.principle of neutrality is of great importance, in the sense of “upholding aid that is offered to a broad range of groups or persons without regard to their religion.” Mitchell, 530 U.S. at 809, 120 S.Ct. 2530. If the religious, irreligious, and areli-gious are all -alike eligible for governmental aid, no one would conclude that any indoctrination that any ■ particular recipient conducts has been done at the behest of the government. For attribution of indoctrination is a relative question. If the government is offering assistance to recipients who provide, so to speak, a broad range of indoctrination, the government itself is not thought responsible.for any particular indoctrination. To put the point differently, if the government,»-seeking to further some le.gitimate-secular purpose, ■ offers aid on the same --terms, without- regard to religion, to all who-adequately further that purpose, see Allen, 392 U.S. at 245-247, 88 S.Ct. 1923 (discussing dual secular and religious purposes of religious schools), then it is fair to say that any aid going to a religious recipient only has the effect of furthering that secular purpose. The government, in crafting such an aid program, has had to conclude that a given level of aid is necessary to further that purpose among secular recipients and has provided no more than that same level to religious recipients. Mitchell, 530 U.S. at 809-10, 120 S.Ct. 2530. Here, as explained above, the KTDA is designed to further a legitimate secular purpose, and its language and criteria offer the potential rebate to all without regard to religion. .Thus, if AiG or some other religiously affiliated entity qualifies for and receives the rebate, the aid still has the effect of furthering the original secular purpose. As long as AiG is treated equally along with secular recipients, any religious, indoctrination or speech that takes,place .at the Ark Park will not be attributed to the Commonwealth. As recently articulated by the Sixth Circuit,-in considering whether the relationship between the government entity'and AiG has the primary* effect of advancing religion, courts - also consider “whether the action [at issue] conveyed an objective message that-the-government was endorsing religion.” Smith v. Jefferson Cty. Bd. of Sch. Comm’rs, 788 F.3d 580, 589 (6th Cir.2015) (citing Lynch, 465 U.S. at 690, 104 S.Ct. 1355 (O’Connor, J., concurring). What is sometimes referred to as the “endorsement test” considers- whether the state “coerces participation in a- religious activity. Coercion not only includes securing participation through rules .and threats of punishments but . also, includes imposing public pressure, .or peer- pressure, on individuals.” Id. (citing cases involving school prayer). Although this issue frequently arises in the context of prayer or religious ceremonies on government-owned property, certain uses of private property for government-sponsored functions can be considered coercive if the function is held in a religious environment and attendance is not truly voluntary. Smith, 788 F.3d at 592. In such cases, “[t]he government violates the endorsement test if a reasonable observer would think that the activity is a governmental endorsement of religion.” Id. at 590 (citations omitted). However, when a non-governmental entity is responsible for the religious references conveyed to observers, and'the purpose of the arrangement between that entity and the government entity is purely secular, the religious message is incidental to the relationship between the government and the: entity receiving the benefit, and therefore the reasonable observer will view the religious message very differently than if it were conveyed by a governmental entity itself or on government-owned property. See Smith, 788 F.3d at 592. Here, allowing AiG to participate in the KTDA program does "not compel or coerce anyone to participate in any religious ceremony. AiG confirms that no visitor' to the park will be forced to. accept any views or interpretation presented there. [R. 1, ¶ 160,] If activities such as prayer or evan-gelization take place at the Ark Park," anyone present will be free to leave or choose not .to. participate. The visitors attending the park will do so voluntarily and be. able to leave whenever they want. Such a situation, therefore, is distinguishable from that in Teen Ranch v. Udow and several other cases relied upon by the Commonwealth where the court focused on the age and situation of children or teenagers in schools and other educational institutions. See 389 F.Supp.2d 827 (W.D.Mich.2005), aff'd, 479 F.3d 403 (6th Cir.2007) (emphasizing the impressionable minds of teenagers living at the ranch who could not fully avoid all pressure to participate). Here, unlike children in school, visitors are choosing to pay money to attend a theme park and can complain to the park’s operators or choose not to come back if they dislike the message presented. Regardless of its religious theme, the Ark project is still a business, and as such involves a customer .service aspect that will limit the possibility of forced, indoctrination. Any concern of possible coercion such that a reasonable observer would think the government was conveying the religious message presented by AiG is unfounded. As for the second factor of the primary effect prong, when considering whether the government program defines its potential recipients by reference to their religion, the court must determine whether the “criteria for allocating the aid create a financial, incentive to undertake religious indoctrination.” - Johnson, 241 F.3d at 514 (quoting Mitchell, 530 U.S. at 813, 120 S.Ct. 2530). In the case at hand, there is certainly no incentive for potential recipients to' undertake religious indoctrination. On the contrary, it is because of AiG’s religious message that AiG is being denied the benefit. When a government program is “made available without regard to the sectarian-nonsectarian, or publie-nonpublic nature of the institution benefited,” it does not provide an impermissible ■incentive and likely will not violate the Establishment Clause even when it provides a benefit to religious institutions. Id, (quoting Witters v. Washington Dept. of Services for the Blind, 474 U.S. 481, 488, 106 S.Ct. 748, 88 L.Ed.2d 846 (1986)); see also Agostini, 521 U.S. at 231, 117 S.Ct. 1997 (an improper incentive is “riot present ... where the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis”). Drawing on Supreme Court precedent, in American Atheists v. Detroit, the Sixth Circuit also identified another factor to consider under the primary effect inquiry that is particularly relevant to the Commonwealth’s concerns in this case. There, the court noted that a government program could have the primary effect of advancing religion “if the recipient ‘divertís]’ secular aid to further its religious mission.” Am. Atheists, 567 F.3d at 293 (quoting Mitchell, 530 U.S. at 840-41, 857, 120 S.Ct. 2530). In a factually similar scenario, the city of Detroit created a downtown revitalization program that allocated reimbursement grants funded by property tax revenues to property owners and tenants who made approved renovations to their buildings and parking lots. 567 F.3d at 282. Of the 91 approved and completed projects, nine involved reimbursements made to three churches, while the other projects involved a wide range of secular businesses such as banks, hotels, a theater, and an apartment building. Id. at 284. A non-profit organization called American Atheists argued that the tax-funded reimbursements to the three churches violated the Establishment Clause. The Sixth Circuit, however, found that the program did not have the impermissible effect of advancing - religion nor would a reasonable observer believe the government was endorsing the churches’ religious viewpoints. In American Atheists, the court found .that diversion, was not a concern because much of the aid consisted of reimbursements for cosmetic repairs to buildings and parking lots. 567 F.3d at 293. The court came to this conclusion despite the fact that although the reimbursements were for particular items, such aid necessarily freed up other funds for the churches to, use in ways that furthered their mission. Id. The court noted that “[t]he Supreme Court has repeatedly rejected the recurrent argument that all aid is forbidden because aid to one aspect of ah institution frees it to spend its other resources on religious ends.” Am. Atheists, 567 F.3d at 296 (quoting Hunt v. McNair, 413 U.S. 734, 743, 93 S.Ct. 2868, 37 L.Ed.2d 923 (1973)) (internal quótation marks omitted). Thus, despite the Commonwealth’s implication that AiG “cannot lawfully receive public funds- for its operations” because of its religious identity [R. 24 at 27; R. 18-1 at 26], the Establishment Clause doés not per se bar every kind of government aid to all religious organizations. As the Sixth Circuit reasoned in American Atheists, the government provides other tax-funded benefits to churches and religious non-profits such as sewers, sidewalks, police and fire-protection services, and even tax exemptions all without violating the Establishment Clause, and such benefits all “facilitate the operation of the religious institution, either by saving them money directly or by sparing them the expense of providing the services on their own.” 567 F.3d at 291; see also Widmar v. Vincent, 454 U.S. 263, 274-75, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (“If the Establishment Clause barred the extension of general benefits to religious groups, • a church could not be protected by the police and fire departments”) (internal quotation and quotation marks omitted). Both the Sixth Circuit and Supreme Court have upheld such benefits, in addition to indirect benefits to religious schools such as school-bus services, books, and technology. Id. at 291-92 (collecting cases); see also Agostini, 521 U.S. 203, 225, 117 S.Ct. 1997, 138 L.Ed.2d 391. Because money is fungible, such benefits will to some extent have the incidental effect of allowing the institution’s other funds to be used to advance their religious purposes if they wish. Indeed any reimbursement, aid, or tax exemption necessarily frees up other funds for other purposes. Indirect benefits, however, do not have the primary effect of advancing religion. See Johnson, 241 F.3d at 510 (“The Supreme Court has consistently rejected the argument that any and all government aid to a religiously affiliated institution violates the Establishment Clause.”) (collecting cases); Widmar, 454 U.S. at 273-74, 102 S.Ct. 269 (“a religious organization’s enjoyment of merely ‘incidental’ benefits does not violate the prohibition against the ‘primary advancement’ of religion”) (collecting cases); Mueller v. Allen, 463 U.S. 388, 398-99, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983) (noting that “a program ... that neutrally provides state assistance to a broad range of citizens is not readily subject to challenge under the Establishment Clause”). Thus, it is not true that no tax dollars can ever benefit a religious institution without creating an impermissible establishment of religion. The question is whether the government “provides the same benefit to all [similarly situated entities] on the same terms.” American Atheists, 567 F.3d at 292; see also Zobrest v. Catalina Foothills School Dist., 509 U.S. 1, 8, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993) (“[W]e have consistently held that government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated financial benefit”); This principle applies even more clearly in the situation at hand because any rebate AiG receives will have been generated by AiG in the first place, and therefore such a benefit seems even less likely to be attributed to government endorsement of AiG’s religious views than the incidental benefits' described above to religious schools and churches. As in American Atheists, the KTDA program’s “breadth, evenhandedness, and eminently secular objectives help to break the link between government and religious indoctrination,” and when AiG or any other religiously affiliated organization participates in the program “alongside and on equal terms with dozens of secular entities,” no reasonable observer would think the government was endorsing their religious views. Id. at 292. Moreover, the cases to which Defendants cite in support of their concern about diversion of aid focus on the evidence or lack thereof that a recipient actually used government funding for religious indoctrination. See, e.g., Am. Atheists, 567 F.3d at 293; Mitchell, 530 U.S. at 840, 120 S.Ct. 2530; Bd. of Educ. of Central Sch. Dist. No. 1 v. Allen, 392 U.S. 236, 88 S.Ct