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Posts for June, 2014

Luxembourg legalizes same-sex marriage

Timothy Kincaid

June 18th, 2014

From rtl.fr

Ce pays de tradition catholique, qui avait reconnu en 2004 le droit à l’union civile aux couples du même sexe, est ainsi le 11e pays européen à reconnaître le mariage gay. “Le Luxembourg deviendra plus solidaire et plus juste”, s’est félicité le ministre de la Justice, Félix Braz, à l’issue des débats à la Chambre des députés ce mercredi. Les premières unions devraient être célébrées au début de l’année 2015 , la loi devant entrer en vigueur six mois après son vote.

in English (google translation)

The Luxembourg Parliament voted by a large majority in favor of marriage and adoption for gay couples, this Wednesday, June 18. This traditionally Catholic countries, which in 2004 had recognized the right to civil unions for same-sex couples, so is the 11th European country to recognize gay marriage. “Luxembourg become more inclusive and just” is congratulated the Minister of Justice Felix Braz, following debates in the House of Representatives on Wednesday. First unions should be celebrated at the beginning of 2015, the Act to come into force six months after the vote.

Earlier, opponents of equality had attempted to derail – or at least delay – the long anticipated vote. But they were unable to rally the minimum opposition. They needed 4,500 signatures on a public petition (about eight tenths of one percent of the population) but were only able to collect 3,187 signatures.

Michigan GOP former Speaker of House calls for equality

Timothy Kincaid

June 17th, 2014

A number of formerly prominent Republicans have signed a brief urging the Sixth Circuit Court of Appeals to affirm the ruling that Michigan’s ban on same-sex marriage is in violation of the US Constitution. (ClickOnDetroit)

The Republicans include former House Speaker Rick Johnson and former House Majority Leader Chris Ward.

Former U.S. Rep. John “Joe” Schwartz has signed on, along with former state lawmakers Leon Drolet, Doug Hart, Dave Honigman and Susan Grimes Gilbert.

It seems to me that in some parts of the country we have now reached the stage in our quest for equality wherein former GOP leaders or power-players are beginning to champion our cause. And while most of those currently in power do not yet appear to be willing to be publicly supportive, many have elected to adopt language such as “let the judicial system decide” or even “it is inevitable, so we should focus on respecting each other”.

While Republicans are not speaking in harmony with not the fully supportive language of the Democrats, I think that these shifts in the political stance of Republicans leaders, both current and former, foretell a time not so distantly ahead in which civil equality is assured and not even terribly controversial.

SCOTUS: no stay on Oregon decision

Timothy Kincaid

June 4th, 2014

In April Federal Judge Michael McShane was presented with testimony as to why the State of Oregon’s constitutional amendment banning same-sex marriages was in violation of the US Constitution. The state chose not to defend the law and agreed that the law was unconstitutional, leaving no defenders of the ban.

At the last moment, the National Organization for Marriage sought to intervene in the case in support of the ban. Judge McShane found that they had no standing to intervene. He subsequently found that the law was in violation of the US Constitution and opened the state to same sex marriages.

NOM has appealed the decision rejecting standing to the Ninth Circuit Court of Appeals. They also requested that the Ninth Circuit stay McShane’s ruling until they could argue as to why they should have had standing. The Ninth declined.

Then NOM appealed the Ninth’s decision on stay to the Supreme Court of the United States. Judge Kennedy, who handles such matters for the Ninth Circuit requested that each side submit briefs. Buzzfeed

Kennedy, who hears procedural matters brought to the court from the 9th Circuit, referred the request to the full court, which denied the request without comment on Tuesday.

NOM’s appeal of the denial to intervene is the only matter left pending in the case because Oregon state officials had not fought the lawsuit, having agreed with the plaintiffs that the ban is unconstitutional They had said that they would not appeal the decision if U.S. District Court Judge Michael McShane struck down the ban.

Of course you cannot extrapolate from a commentless denial, but it would seem to be that if SCOTUS sees no need to stay it is because they see little likelihood that NOM will prevail in their petition to be heard.

Oregon United drops ballot measure (updated)

Timothy Kincaid

May 23rd, 2014

In July 2013, Oregon United for Marriage began the process of collecting signatures to place a proposition on the ballot to reverse the state’s 2004 constitutional amendment banning same-sex marriage. With significant high-profile political support and large contributions from some of Oregon’s corporate giants like Nike, they reached their goal of 116,000 signatures with an extra 50,000 to allow for errors or duplicates.

Earlier this year, in a brief submitted to the court, Oregon United stated that if Judge McShane ruled the ban unconstitutional by May 23rd, they would drop their ballot effort. The judge ruled earlier this week and the state will not appeal his ruling. So today Oregon United announced that they are discontinuing the process.

Today is May 23—and following Judge Michael McShane’s ruling that extended the freedom to marry to all loving, committed couples in Oregon, a ballot campaign to address the same issue is no longer needed. “We are confident that the freedom to marry is secure in Oregon and that we do not need to move forward with the ballot measure,” said Oregon United for Marriage deputy campaign manager Amy Ruiz. “It is time to celebrate this victory for Oregon.

UPDATE

Oregon United had accumulated hundreds of thousands of dollars in anticipation of needing a media campaign for the proposition. Now they are giving it back. (Statesman Journal)

That money came in large part from donations from other organizations like Basic Rights Oregon, the ACLU of Oregon, SEIU Local 503, Human Rights Campaign, Freedom to Marry, Gill Action Fund and the American Unity Fund.

And those groups will be getting some of that money back.

The marriage campaign’s executive committee has decided to return its remaining resources to its major donors in proportion to what they gave to the campaign.

Classy move.

Pennsylvania’s Marriage Equality Is Here To Stay

Jim Burroway

May 21st, 2014

No appeals, no stay. Pennsylvania Gov Tom Corbett (R), who is facing an uphill climb for re-election later this year, has announced that he will cut his losses in his defense of the state’s marriage laws which prohibited marriage equality for same-sex couples:

I have thoroughly reviewed Judge Jones’ opinion in the Whitewood case. Given the high legal threshold set forth by Judge Jones in this case, the case is extremely unlikely to succeed on appeal. Therefore, after review of the opinion and on the advice of my Commonwealth legal team, I have decided not to appeal Judge Jones’ decision.

As a Roman Catholic, the traditional teaching of my faith has not wavered. I continue to maintain the belief that marriage is between one man and one woman. My duties as Governor require that I follow the laws as interpreted by the Courts and make a judgment as to the likelihood of a successful appeal.

Throughout the debate on this important and meaningful issue, I have maintained that Commonwealth officials and agencies would follow the provisions of Pennsylvania’s marriage law unless or until a court says otherwise. The court has spoken, and I will ensure that my administration follows the provisions of Judge Jones’ order with respect for all parties.

It is my hope that as the important issue of same-sex relationships continues to be addressed in our society, that all involved be treated with respect.

“We Are A Better People Than These Laws Represent”

Jim Burroway

May 20th, 2014

The issue we resolve today is a divisive one. Some of our citizens are made deeply uncomfortable by the notion of same-sex marriage. However, that same-sex marriage causes discomfort in some does not make its prohibition constitutional. Nor can past tradition trump the bedrock constitutional guarantees of due process and equal protection. Were that not so, ours would still bea racially segregated nation according to the now rightfully discarded doctrine of “separate but equal.” … In the sixty years since Brown was decided, “separate” has thankfully faded into history, and only “equal” remains.” Similarly, in future generations the label same-sex marriage will be abandoned, to be replaced simply by marriage.

We are a better people than these laws represent, and it is time to discard them into the ash heap of history.

– Federal District Judge John E. Jones III, in striking down Pennsylvania’s ban on same-sex marriage.

As Timothy already noted, Federal District Judge John E. Jones III, who was appointed to the bench by President George W. Bush in 2002 with Sen. Rick Santorum’s recommendation, has declared Pennsylvania’s ban on same-sex marriage unconstitutional. The ban this time was in Pennsylvania’s 1996 marriage statute, rather than a constitutional amendment. Jones found that Pennsylvania’s statues violated both the Due Process and the Equal Protection Clauses of the U.S. Constitution. He also declined to stay his decision, which means that Pennsylvanians can apply for marriage licenses today. Pennsylvania imposes a mandatory three-day waiting period, which pushes the earliest marriages to Friday afternoon.

(Update: Ordinarily it’s pretty difficult to get a waiver for the three-day waiting period. But a number of judges are granting those waivers and the first marriages have now taken place.)

Jones begins his 39-page rather succinctly:

Today, certain citizens of the Commonwealth of Pennsylvania are not guaranteed the right to marry the person they love. Nor does Pennsylvania recognize the marriages of other couples who have wed elsewhere. Hoping to end this injustice, eleven courageous lesbian and gay couples, one widow, and two teenage children of one of the aforesaid couples have come together as plaintiffs and asked this Court to declare that all Pennsylvanians have the right to marry the person of their choice and consequently, that the Commonwealth’s laws to the contrary are unconstitutional. We now join the twelve federal district courts across the country which, when confronted with these inequities in their own states, have concluded that all couples deserve equal dignity in the realm of civil marriage.

Jones opened his ruling by describing, in considerable detail, the many ways that Pennsylvania’s denial of equal marriage have rendered same-sex couples and their families vulnerable. He notes that unmarried couples face as much of a 15 percent inheritance tax if one of them dies, that parents are force to spend thousands of dollars for second-parent adoptions, that some couples have spent over $10,000 in legal fees to prepare legal documents for wills, powers of attorneys, and other legal documents to protect their assets and partnerships, and couples have remained legal strangers to each other in life and in death because of Pennsylvania’s ban. It was that discrimination that this particular case was brought to address:

Writing for the majority in Windsor, Justice Kennedy opined that discrimination caused by the non-recognition of same-sex couples’ marriages “impose[s] a disadvantage, a separate status, and so a stigma upon” same-sex couples in the eyes of the state and the broader community. Id. at 2693. Not only are these stigmatizing harms cognizable, they are profoundly personal to Plaintiffs and all other gay and lesbian couples, married or not, who live within the Commonwealth of Pennsylvania and thus are subject to the Marriage Laws. Additionally, and as discussed in greater detail above, see discussion supra Part I.B., Plaintiffs suffer a multitude of daily harms, for instance, in the areas of childrearing, healthcare, taxation, and end-of-life planning. With the Plaintiffs’ stories in mind, we easily find that Plaintiffs have sufficiently established that they suffer actionable harms, and Defendants’ argument to the contrary is rejected.

In his discussion of the Due Process clause, Jones hit on what I think is a key insight. The bolding is mine for emphasis:

With the weight and impetus of the foregoing Supreme Court jurisprudence in mind, this Court is not only moved by the logic that the fundamental right to marry is a personal right to be exercised by the individual, but also rejects Defendants’ contention that concepts of history and tradition dictate that same-sex marriage is excluded from the fundamental right to marry. The right Plaintiffs seek to exercise is not a new right, but is rather a right that these individuals have always been guaranteed by the United States Constitution. As aptly explained by the Supreme Court in Lawrence:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

…we specifically hold that the fundamental right to marry as protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution encompasses the right to marry a person of one’s own sex. We further hold that this fundamental right is infringed upon by 23 Pa. C.S. § 1102, which defines marriage as between one man and one woman and thus precludes same-sex marriage. Accordingly, 23 Pa. C.S. § 1102 is unconstitutional.

Jones also declared that the Pennsylvania statute that barred the state from recognizing same-sex marriages from other states also violated the Due Process clause and was therefore unconstitutional.

Jones then went on to examine the Equal Protection Clause, which meant that he needed to determine the appropriate level of scrutiny to apply. Because the Third Circuit has never ruled on the level of appropriate scrutiny on cases based on sexual orientation, Jones was free to consider the arguments. Here, he gets a little bit of help from U.S. Supreme Court justice Antonin Scalia:

While Windsor, the most recent apposite pronouncement by the Supreme Court, offers little concrete guidance, we glean from it and other Supreme Court jurisprudence that heightened scrutiny is, at minimum, not foreclosed. Indeed, in the tea leaves of Windsor and its forebears we apprehend the application of scrutiny more exacting than deferential.

As Justice Scalia cogently remarked in his dissent, “if [Windsor] is meant to be an equal-protection opinion, it is a confusing one.” Windsor, 133 S. Ct. at 2706 (Scalia, J., dissenting). Although Windsor did not identify the appropriate level of scrutiny, its discussion is manifestly not representative of deferential review. See id. (Scalia, J., dissenting) (observing that “the Court certainly does not apply anything that resembles [the rational-basis] framework” (emphasis omitted)). The Court did not evaluate hypothetical justifications for the law but rather focused on the harm resulting from DOMA, which is inharmonious with deferential review. …Indeed, far from affording the statute the presumption of validity, Windsor found DOMA unconstitutional because “no legitimate purpose overcomes the purpose and effect to disparage and to injure.” Windsor, 133 S. Ct. at 2696 (emphasis added)…

Jones notes that four factors are needed to determine if heightened scrutiny is to apply: “(1) the class has been subjected to ‘a history of purposeful unequal treatment,’ … (2) possesses a characteristic that ‘frequently bears no relation to ability to perform or contribute to society,’ … (3) exhibits ‘obvious, immutable, or distinguishing characteristics that define them as a discrete group[,]‘ … and (4) is ‘a minority or politically powerless. Of the four factors, the first two are most meaningful.”

On the first point, Jones noted that “the gay and lesbian community has endured historical discrimination at the national level is uncontested” and “we find that this consideration points strongly toward the application of heightened scrutiny. On the second point, “We need not linger on this criterion: it is axiomatic that sexual orientation has no relevance to a person’s capabilities as a citizen. For the third point, “Whether sexual orientation constitutes a sufficiently discernible characteristic is also little in debate and, for our purposes, undisputed by Defendants.” (He also dismissed the “immutability” test: “the test is broader, encompassing groups whose members can hide the distinguishing trait and where the characteristic is subject to change.”) And on the question of political power, Jones found that the failure of the state legislature to enact a marriage equality bill or an anti-discrimination bill amounts to “a weak positive in favor of heightened scrutiny.” All of which means that he found in favor of applying heightened scrutiny:

In terms of state interests served by Pennsylvania’s Marriage Laws, Defendants advance the following: the promotion of procreation, child-rearing and the well-being of children, tradition, and economic protection of Pennsylvania businesses. Defendants appear to defend only the first two aims, stating that numerous federal and state courts have agreed that responsible procreation and child-rearing are legitimate state interests and providing extensive authority for that proposition. Significantly, Defendants claim only that the objectives are “legitimate,” advancing no argument that the interests are “important” state interests as required to withstand heightened scrutiny. Also, Defendants do not explain the relationship between the classification and the governmental objectives served; much less do they provide an exceedingly persuasive justification. In essence, Defendants argue within the framework of deferential review and go no further. Indeed, it is unsurprising that Defendants muster no argument engaging the strictures of heightened scrutiny, as we, too, are unable to fathom an ingenuous defense saving the Marriage Laws from being invalidated under this more-searching standard.

In sum, Defendants have failed to carry their burden, and we conclude that the classification imposed by the Marriage Laws based on sexual orientation is not substantially related to an important governmental interest. Accordingly, we hold that the Marriage Laws violate the principles of equal protection and are therefore unconstitutional.

There is no word yet on whether Gov. To Corbett intends to appeal or seek a stay from the Third Circuit.

Radical Militant Activist Judge Jones

Timothy Kincaid

May 20th, 2014


Anti-gay activists like to pretend that the only way marriage equality is obtained is through the machinations of radical militant activist judges who impose their leftist agenda against the will of the people. So it’s always nice to know a little about who these judges are and how they came to hold their position.

Judge John E. Jones III, whose ruling found that Pennsylvania’s ban on same-sex marriage (legislative, not a constitutional amendment) is in violation of the US Constitution, is a bit hard to sell as a radical militant activist with a leftist agenda. But he’s certainly had that accusation thrown at him before, when he found that intelligent design could not be part of a school curriculum.

Before Jones became a jurist, re ran for Congress for the Sixth Congressional District seat and then, when unsuccessful, was co-chair of the transition team for Governor-elect Tom Ridge. He considered a run for Governor in 2001. As a Republican.

Jones was appointed by President George W. Bush as federal judge on the United States District Court for the Middle District of Pennsylvania in February 2002 and was unanimously confirmed by the United States Senate on July 30, 2002.

Pennsylvania ruling: marriage ban unconstitutional

Timothy Kincaid

May 20th, 2014

Pennsylvania has become the latest state in which a Federal judge has ruled that marriage bans which exclude same-sex couples are in violation of the US Constitution. As of yet, there is no stay on the ruling. (WaPo)

In the wake of last June’s Supreme Court decision striking down part of the federal Defense of Marriage Act, U.S. District Court Judge John Jones III said the commonwealth’s state version of the law was unconstitutional. The suit was brought on behalf of 23 plaintiffs by the American Civil Liberties Union.

“[W]e hold that Pennsylvania’s Marriage Laws violate both the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution,” Jones wrote in his ruling, uploaded by equalitycasefiles.org.

Pennsylvania Attorney General Kathleen Kane (D) had refused to defend the law, so attorneys for the Office of General Counsel, which reports to Gov. Tom Corbett (R), stood in for the state.

At present, including Oregon and Pennsylvania, there are 19 states and the District of Columbia in which same sex couples may marry. There are an additional nine states in which a marriage ban has been found to be unconstitutional but in which the ruling has been stayed on appeal.

It’s election day (primary) in Pennsylvania and Governor Tom Corbett has yet to comment on the decision. His history with the case has been one of embarrassment, including his rejection of the arguments made by his legal team. I’m certain that he’s hoping that the election results will allow him to keep as low a profile on the ruling as possible.

I expect an appeal, but would not be shocked by “the courts have spoken”.

Judge Piazza will be re-elected tomorrow

Timothy Kincaid

May 19th, 2014

Tomorrow is election day in Arkansas and the judge who found the marriage ban to be unconstitutional will be on the ballot. But not to worry, he’s going to be reelected. (Houston Chronicle)

A Pulaski County circuit judge recently tossed out Arkansas’ 10-year-old ban on gay marriage, and the state Supreme Court subsequently put the judge’s ruling on hold, but there’s no way for voters to take out their frustrations at the polls this year. Circuit Judge Chris Piazza, who made the ruling, didn’t draw an opponent this year and will be re-elected to a 6-year term Tuesday.

The National Organization for Marriage is calling demanding “Governor Mike Beebe to call a special legislative session so that lawmakers can impeach Piazza and remove him from office”. Beebe has already dismissed that notion.

Ninth rejects NOM’s Oregon stay request

Timothy Kincaid

May 19th, 2014

Last week, Judge McShane denied the effort by the National Organization for Marriage to intervene in the trial over that state’s ban on same-sex marriage. They appealed that decision to the Ninth Circuit Court of Appeals, along with a request for an emergency stay on Judge McShane’s decision, should it be that the ban is unconstitutional.

Today the Ninth gave their reply: “Appellant’s emergency motion to stay district court proceedings pending appeal is denied.”

This has not been NOM’s happy day.

Arkansas Supreme Court Halts Marriages

Jim Burroway

May 16th, 2014

In a simple one-sentence order, the Arkansas State Supreme Court has brought same-sex marriages in the state to a halt:

State Defendants-Appelants’ petition for emergency stay and separate White, Washington, Lonoke and Conway County appellants’ expedited motion for stay are granted.

The Arkansas Time blog describes what lies ahead:

Piazza’s decision will now go through the appeal process. A record of the lower court case must be prepared. A briefing schedule must be set and probably oral arguments. The court takes a two-month recess each summer. Even with an expedited schedule, it’s uncertain if the case can be decided this calendar year, when two of the current justices — Cliff Hoofman and Donald Corbin — will be replaced by Rhonda Wood and the winner of a race between Judge Robin Wynne and Tim Cullen. Typical there’s about 2.5 months for briefing after a record and transcript is completed. Part of this record has already been completed and it’s not an extensive record.  It conceivably could be completed by fall.

In other words, this may kick things down the road to 2015 or so.

Ninth Circuit Temporarily Blocks Idaho Marriages

Jim Burroway

May 15th, 2014

The Ninth Circuit Court of Appeals has issued a temporary stay of a lower court’s ruling that found Idaho’s ban on same-sex marriages unconstitutional. The lower courts ruling was set to go into effect on Friday at 9:00 a.m., but Gov. Butch Otter filed an emergency request with the Ninth Circuit asking for a stay until the pending appeal is completed. The Ninth Circuit has partially granted that request:

In a one-sentence order, a three-judge panel of the 9th Circuit Court of Appeals wrote, “The district court’s May 13, 2014 order is temporarily stayed pending this court’s disposition of appellants’ emergency motions for a stay pending appeal.”

In other words, the three-panel court (consisting of Judges Edward Leavy, Consuelo Callahan, and Andrew Hurwitz) have decided to issue a temporary stay to give them time to decide whether to keep the stay in place throughout the appeals process.

Arkansas marriages resume

Timothy Kincaid

May 15th, 2014

Yesterday the Arkansas Supreme Court chose not to stay the decision by Judge Chris Piazza in which he found that the state constitutional amendment banning same-sex marriage was in contradiction with other provisions of the state constitution. However, then noted that his temporary order only addressed the amendment and not the legislator-passed state law.

Today Judge Piazza clarified that when he found anti-gay marriage bans unconstitutional, he really did mean all of them. (AP)

A day after the state Supreme Court effectively halted gay marriages in the state, Pulaski County Circuit Judge Chris Piazza expanded his ruling striking down a constitutional ban to also include the prohibition on clerks issuing same-sex marriage licenses. Justices had ruled Wednesday that Piazza’s decision on the gay marriage ban did not change that license law.

Piazza also rejected a request to suspend his ruling, saying there’s no evidence the state would be harmed by allowing gay marriages to continue.

So marriages in certain counties in Arkansas will resume.

Of course, now that he has issued his final ruling, the state Supremes may decide to place a stay on the ruling until they consider the appeal. Frankly, I’ll be surprised if they don’t; but should they choose not to, it will basically mean that the marriage question is over in that state.

Judge Denies Idaho Gov’s Request for Marriage Ruling Stay

Jim Burroway

May 14th, 2014

U.S. Magistrate Judge Candy W. Dale, who yesterday ruled that Idaho’s state constitutional amendment banning same-sex marriage violates the U.S. Constitution, has denied a request by Gov. Butch Otter (stop that, you guys!) to stay the ruling pending a planned appeal to the Ninth Circuit Court of Appeals. Idaho Attorney General Lawrence Wasden and Gov. Otter are expected to file an emergency motion with the Ninth Circuit asking for a stay pending an appeal. Otter and Wasden are optimistic they can get a stay somewhere:

In the request to Dale, Otter’s attorneys said they were convinced that if the judge wouldn’t issue a stay, the 9th Circuit or Supreme Court would.

“That conviction is based on the fact that the Ninth Circuit granted such a stay in the California same-sex marriage’ case, the Sixth district did the same in the Michigan same-sex marriage case, and the United States Supreme Court did the same in the Utah same-sex marriage case,” Otter’s attorneys wrote.

If the Ninth Circuit denies their motion for a stay and the U.S. Supreme Court doesn’t intervene, then same-sex marriages will become legal in Idaho at 9:00 a.m. Friday.

Meanwhile:

After the ruling, the Idaho Republican Party issued a statement reaffirming the organization’s stance against same-sex marriage, and contending that the Tenth Amendment gives states the power to regulate and define marriage.

“The disintegration of marriage will lead to the disintegration of our society,” Idaho GOP Chairman Barry Peterson said in a prepared statement.

And Idaho

Timothy Kincaid

May 13th, 2014

Idaho Statesman

U.S. Magistrate Judge Candy Dale has ruled Idaho’s ban on gay marriage is unconstitutional.

In her 57-page decision, Dale stated, “Idaho’s Marriage Laws withhold from them a profound and personal choice, one that most can take for granted. By doing so, Idaho’s Marriage Laws deny same-sex couples the economic, practical, emotional, and spiritual benefits of marriage, relegating each couple to a stigmatized, second-class status. Plaintiffs suffer these injuries not because they are unqualified to marry, start a family, or grow old together, but because of who they are and whom they love.”

And Idaho makes… ummm, I have no idea what number this one is.

Update: You can read some choice excerpts from Judge Dale’s smack-down opinion here.

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