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RUSH: Folks, I want to mention something that is happening, and it’s not being commented on. It’s in the news, but it’s never gonna be above the fold because of everything else going on. But the Supreme Court has heard oral arguments on this case involving the baker who refused to bake a cake for a gay wedding. The oral arguments were at the Supreme Court this week, and, you know, you can’t predict how a case is gonna go from oral arguments. People try, but you can’t. It’s a risky business.

But having said that, the oral arguments on this — the questions that we got from no less than Justice Kennedy and Justice Gorsuch — look like it’s good for the baker. To cut to the chase on this, the plaintiff here is trying to make the case that the baker is hiding behind his religious freedom to discriminate against gays. I’m gonna give you a fact of this case that you may not know. It’s Masterpiece Cakeshop and the guy’s name is Jack Phillips, and a gay couple walked into his bakery and asked him to bake a cake for their wedding reception. He said, “No. My religious beliefs prevent me from baking a cake for you, designing a cake.”

They sued him. The case is at the Supreme Court. And it really is an argument over where does religious freedom trump and what does it trump. And the gay couple is essentially saying, you can’t discriminate against us citing the Constitution. Your religious freedom doesn’t give you the right to discriminate. And the justices are saying, that’s the wrong argument.

I’ll bet you didn’t know this. In this guy’s bakery, which is called Masterpiece Cake Shop, a gay couple can walk in and see a cake in the display case and say, “We want to buy this for our wedding,” and he would sell it to them. What he refused to do was design the cake for them and become part of their ceremony. He would happily sell them a cake, but that wasn’t enough for them. They wanted him to design it and to work with them on the designing and the baking and the building of the cake.

And he said no, my religious views do not allow me to help you celebrate this. He was not denying them the right to buy a cake in his shop. He was just telling them he wouldn’t participate in designing it and being part of the celebration. And they’re trying to say his religious liberty in the First Amendment does not allow him to discriminate. And Justice Kennedy had the most amazing reaction to this.

Justice Kennedy said, “Well, but this whole concept of identity is a slightly — suppose he says: ‘Look, I have nothing against gay people.’ He says, ‘but I just don’t think they should have a marriage because that’s contrary to my beliefs.'” Kennedy says, “It’s not they’re identity, it’s what they’re doing.” And this is the nub of the case, because the gay couple is saying he’s refusing us because of who we are, because of our identity, and Justice Kennedy pointed out, no, he’s not.

Justice Kennedy said, your identity thing is just too facile, meaning it’s too broad. You’re trying to incorporate way more in your identity politics than you should. It is that there is a big difference in a person’s identity and a person’s actions. And this guy, the baker and Justice Kennedy got it, he made the point. The baker never discriminated against them on the basis of their identity; he discriminated on the basis of what they were asking him to do.

It was the action they were asking. He was being asked to help them design their cake and participate in the celebration of their wedding, and he said no. Well, they’re trying to say he’s discriminating ’cause we’re gay, and his point is no, I’m not discriminating. I’m just not gonna compromise religious beliefs by helping you celebrate. If you want to buy a cake in here, there’s one right there.

And from what I’ve read, the gay couple and the lawyer seemed a little shocked by this. Again, you can’t make reliable judgments on the outcome of a case. This is still in oral arguments, and the decision is gonna happen quite a while down the road here. But this is the big — I don’t know what we’d call it, distinction, the thing that everybody’s been missing in this all along.

How many of you knew in this whole story that the baker would have been happy to sell them a cake that was already baked or that was a display cake, you can order one just like it. He just was refusing to compromise his religious belief by helping them celebrate and design and all that, but he was not refusing their business. The Drive-Bys never told you that in this story.

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