Commentary Magazine


Topic: Defense of Marriage Act

Media Clings to Disproven Narrative; Hilarity Ensues

As elated as mainstream journalists were when Chief Justice John Roberts decided to cave to political pressure and uphold ObamaCare, it posed a challenge to the left. They had become so invested in their narrative of the illegitimacy of conservative constitutional jurisprudence, they may have even believed it. As the Supreme Court signaled it was considering striking down the constitutionally suspect ObamaCare, liberals ramped up the rhetoric.

But because of the vote-buying and procedural shenanigans used to pass the bill, and because of its extreme unpopularity and bipartisan opposition, supporters of ObamaCare actually needed the country to somehow accept the legitimacy of the court’s opinion, which they had spent months denigrating. Liberals couldn’t break the habit anyway, however. Though Roberts mistakenly thought he would win the court some legitimacy from the president and his palace guards in the press, the opposite happened: with the ObamaCare decision now in their pockets, they resumed trashing the Roberts court as far more “radical” than any of its predecessors.

Though it was sad to watch Roberts get played so easily by the administration and its allies, there was still something amusing about the left’s reaction. They had to engage in some pretty nifty intellectual gymnastics to argue that the court was not moving right despite its major liberal decisions but that the Roberts court’s major liberal decisions were part of its master plan to trick the public into complacency. And so it is with this week’s court rulings. The Roberts court made the right call in striking down the Defense of Marriage Act, as we have argued in this magazine. But it was also a ruling the left celebrated not just from a legal standpoint but from a cultural one. So how to argue that the Roberts court is radical when it so clearly is not? The Times gives it a try today:

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As elated as mainstream journalists were when Chief Justice John Roberts decided to cave to political pressure and uphold ObamaCare, it posed a challenge to the left. They had become so invested in their narrative of the illegitimacy of conservative constitutional jurisprudence, they may have even believed it. As the Supreme Court signaled it was considering striking down the constitutionally suspect ObamaCare, liberals ramped up the rhetoric.

But because of the vote-buying and procedural shenanigans used to pass the bill, and because of its extreme unpopularity and bipartisan opposition, supporters of ObamaCare actually needed the country to somehow accept the legitimacy of the court’s opinion, which they had spent months denigrating. Liberals couldn’t break the habit anyway, however. Though Roberts mistakenly thought he would win the court some legitimacy from the president and his palace guards in the press, the opposite happened: with the ObamaCare decision now in their pockets, they resumed trashing the Roberts court as far more “radical” than any of its predecessors.

Though it was sad to watch Roberts get played so easily by the administration and its allies, there was still something amusing about the left’s reaction. They had to engage in some pretty nifty intellectual gymnastics to argue that the court was not moving right despite its major liberal decisions but that the Roberts court’s major liberal decisions were part of its master plan to trick the public into complacency. And so it is with this week’s court rulings. The Roberts court made the right call in striking down the Defense of Marriage Act, as we have argued in this magazine. But it was also a ruling the left celebrated not just from a legal standpoint but from a cultural one. So how to argue that the Roberts court is radical when it so clearly is not? The Times gives it a try today:

Viewed in isolation, the Supreme Court term that just ended had elements of modesty. The court declined to do away with affirmative action, gave Congress another shot at salvaging the Voting Rights Act and refused to find a constitutional right to same-sex marriage.

But glancing at an end-of term snapshot can be misleading….

Chief Justice Roberts has proved adept at persuading the court’s more liberal justices to join compromise opinions, allowing him to cite their concessions years later as the basis for closely divided and deeply polarizing conservative victories.

His patient and methodical approach has allowed him to establish a robustly conservative record while ranking second only to Justice Anthony Kennedy as the justice most frequently in the majority.

This is a stunningly honest statement of the Times’s extremism on legal issues. Roberts has, the Times tells us, made major ruling after major ruling upholding liberal conventional wisdom on a host of cultural and political issues deemed essential to the liberal project, and he has often sought not to use the court majority to push through wholly conservative opinions but instead to engage with the liberal justices, find common ground, and forge compromises that meet in the middle.

That may sound like an eminently reasonable and, from a political standpoint, admirable record. But the Times strongly disapproves of such behavior, because it does not want the court to possess such legitimacy and it does not approve of compromise with conservatives it believes should only be the object of demonization.

The Times tells us that a larger-than-usual percent of the court’s decisions were unanimous this year. But that, too, is bad news, because the article also tells us that Obama’s solicitor general has had below-average success in front of the court defending administration preferences. To the Times, that means the liberal justices are complicit in a rightward shift. The reality, of course, is that President Obama, a supposed constitutional law expert, is uniquely poor at governing according to the Constitution.

The Washington Post also tries to fit this week’s court decisions into its larger narrative about the Roberts court, with similar results. It reviews the liberal decisions handed down by the judges recently and then quotes a former lawyer in the Obama White House: “If you weren’t paying close attention, you might say, ‘What a liberal Supreme Court we have.’ ”

That’s an interesting phrase, “if you weren’t paying close attention.” And it basically sums up the way the media, confronted with the essential and obvious fraudulence of its narrative about the Roberts court, has explained away its journalistic advocacy.

Don’t be fooled by the moderate and ideologically diverse record of the Roberts court, they say, and don’t be fooled by the lengths to which Roberts will go to compromise with liberal justices and craft decisions that all the judges can get behind. That may be the reality, but it conflicts with the press narrative and one of them must be wrong. It can’t be the press, can it?

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A Ruling Without Reason

This morning the Supreme Court voted by a 5-4 margin that Section 3 of the Defense of Marriage Act, defining marriage as a legal union between one man and one woman as husband and wife for the purpose of federal law, is unconstitutional. But why? Is it because Section 3 violates long-standing principles of federalism that favor state power to define and regulate family relations? Or is it because Section 3 violates the Fifth Amendment rights of gays and lesbians to equal protection of the laws? The answer, in effect, is none of the above. In a 26-page opinion brimming with constitutional catch phrases but containing no coherent rationale, the Court delivered an outcome that many find politically favorable but that no serious reader could possibly find legally sound.

There are many strong arguments against the constitutionality of Section 3 of DOMA. As I argued in the May issue of COMMENTARY, the most compelling argument is that the statute represents an unprecedented encroachment by the federal government upon the power of the states to regulate and define marital relations. Indeed, at the opinion’s outset, this seems to be the line of reasoning the majority is going to adopt in overturning Section 3. “By history and tradition,” the majority writes, “the definition and regulation of marriage … has been treated as being within the authority and realm of the separate States.” The majority continues in this vein for about seven pages… before announcing that federalism is irrelevant to the case!

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This morning the Supreme Court voted by a 5-4 margin that Section 3 of the Defense of Marriage Act, defining marriage as a legal union between one man and one woman as husband and wife for the purpose of federal law, is unconstitutional. But why? Is it because Section 3 violates long-standing principles of federalism that favor state power to define and regulate family relations? Or is it because Section 3 violates the Fifth Amendment rights of gays and lesbians to equal protection of the laws? The answer, in effect, is none of the above. In a 26-page opinion brimming with constitutional catch phrases but containing no coherent rationale, the Court delivered an outcome that many find politically favorable but that no serious reader could possibly find legally sound.

There are many strong arguments against the constitutionality of Section 3 of DOMA. As I argued in the May issue of COMMENTARY, the most compelling argument is that the statute represents an unprecedented encroachment by the federal government upon the power of the states to regulate and define marital relations. Indeed, at the opinion’s outset, this seems to be the line of reasoning the majority is going to adopt in overturning Section 3. “By history and tradition,” the majority writes, “the definition and regulation of marriage … has been treated as being within the authority and realm of the separate States.” The majority continues in this vein for about seven pages… before announcing that federalism is irrelevant to the case!

“The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism,” the majority writes–and not because the state has exclusive sovereignty over the regulation of marital relations. Rather, according to the majority, the power of the state is central because in this case New York State passed a statute of which the majority approved. The recognition by New York State of same-sex marriage “enhanced the recognition, dignity, and protection of the class in their own community.” According to the majority, the federal government snatched away that “recognition, dignity, and protection” in a fit of homophobic animus with the Defense of Marriage Act. “What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.”

This is starting to look like an equal protection argument until the majority again veers off course. It does not engage in a rigorous equal protection analysis based on an established standard of constitutional scrutiny–the rational basis test, which seeks some legitimate government interest underpinning a statute, or the strict scrutiny test, which seeks some compelling government interest supporting a statute, or even the heightened scrutiny test, which is an intermediate level of review. Instead, the Court declares DOMA a violation of the Fifth Amendment’s equal protection component demanding “careful consideration.”

Careful consideration of what?

The Court does not say. To wit, careful consideration is a standard of review conferred upon menus, brochures, and resumes, not constitutional claims for equal protection of the laws. So while supporters of same-sex marriage celebrate the outcome in United States v. Windsor, the victory may well prove pyrrhic. The degree of constitutional protection to which homosexuals are entitled is no more clear today than it was on the day that DOMA was enacted in 1996. What is more, proponents of federalism have cause for concern. By refusing to hold categorically that the states are sovereign over the regulation of familial relations within their boundaries, the Court left open the possibility of future federal legislation in that field. The Court’s decision in Windsor has neither vindicated gay rights nor championed federalism. Rather, with what Justice Scalia scathingly characterizes as a “disappearing trail of . . . legalistic argle-bargle,” the majority has presented the nation with a policy choice clothed in tatters of doctrine.

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The Gay Marriage Debate

I certainly agree with Peter Wehner and Jonathan Tobin that the sudden shift in public opinion in favor of same-sex marriage is quite remarkable and surely portends that in another generation, same-sex marriage will be about as controversial as votes for women. That is, as long as the court doesn’t hand down another Roe v. Wade and take the issue out of the political arena where issues such as this are properly settled.

Let me add just one thing regarding the main conservative reasoning for upholding DOMA. As the Wall Street Journal editorial today sympathetically put it:

Mr. Clement responded to Justice Kennedy that Doma merely defined marriage for the purposes of federal law, such as Social Security benefits. After the Hawaii supreme court had legalized gay marriage and upset the traditional definition, Congress in 1996 naturally adopted a uniform rule for federal benefits but allowed the states to debate and adapt to changing social mores.

This is nonsense.

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I certainly agree with Peter Wehner and Jonathan Tobin that the sudden shift in public opinion in favor of same-sex marriage is quite remarkable and surely portends that in another generation, same-sex marriage will be about as controversial as votes for women. That is, as long as the court doesn’t hand down another Roe v. Wade and take the issue out of the political arena where issues such as this are properly settled.

Let me add just one thing regarding the main conservative reasoning for upholding DOMA. As the Wall Street Journal editorial today sympathetically put it:

Mr. Clement responded to Justice Kennedy that Doma merely defined marriage for the purposes of federal law, such as Social Security benefits. After the Hawaii supreme court had legalized gay marriage and upset the traditional definition, Congress in 1996 naturally adopted a uniform rule for federal benefits but allowed the states to debate and adapt to changing social mores.

This is nonsense.

State marriage laws have always diverged, and significantly so in some cases. For instance, 19 states and Washington D.C. allow first-cousin marriages, 25 states forbid them, and six states allow them with restrictions (usually with reference to the age and/or fertility of the partners). The federal government had no problem with these divergences before 1995. For over 200 years, if you were legally married in the eyes of the state where you lived, then you were legally married as far as the federal government was concerned, no questions asked.

Then the Hawaii Supreme Court legalized same-sex marriage and Washington politicians all of a sudden “naturally” rushed to adopt a “uniform rule for federal benefits.” It was, of course, uniform in only one way: the marriage partners had to be of opposite sexes. And the law that “merely” set a uniform rule for federal benefits isn’t called the Uniform Rule for Federal Benefits Act, it’s called the Defense of Marriage Act.

Lawyers are paid to win the argument, not find the truth, of course. But if you buy Mr. Clement’s argument here, I have a really handsome bridge over the East River I’d like to sell you.

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The Stunning Public Shift on Same-Sex Marriage

The velocity of change in public attitudes on same-sex marriage–from being unimaginable not long ago to being fairly commonplace today and probably dominant tomorrow–is extraordinary, even unprecedented.

One obvious indicator of that is public opinion polls; another is the number of elected officials who are reversing their past position on gay marriage. We’re now at the point where embracing federalism–letting states rather than the Supreme Court decide the issue–defines the most reliably conservative position. Republicans who support same-sex marriage, from former Vice President Richard Cheney to Senator Rob Portman, (thankfully) aren’t in danger of excommunication. In fact, I know of almost no critic of gay marriage who relishes talking about the issue. 

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The velocity of change in public attitudes on same-sex marriage–from being unimaginable not long ago to being fairly commonplace today and probably dominant tomorrow–is extraordinary, even unprecedented.

One obvious indicator of that is public opinion polls; another is the number of elected officials who are reversing their past position on gay marriage. We’re now at the point where embracing federalism–letting states rather than the Supreme Court decide the issue–defines the most reliably conservative position. Republicans who support same-sex marriage, from former Vice President Richard Cheney to Senator Rob Portman, (thankfully) aren’t in danger of excommunication. In fact, I know of almost no critic of gay marriage who relishes talking about the issue. 

What explains this seismic shift? Books will be written examining this question. My own sense, more impressionistic than based on careful research, is that several factors are responsible for it. Changing mores is part of it, as is marriage having been delinked from certain past teleological assumptions. So are family members and friendships with people who have come out as gay. Much of it is generational, with huge majorities of young people supportive of gay marriage. And it’s undeniably true, I think, that the arguments advanced by people like Jonathan Rauch and Andrew Sullivan have carried the day, at least if you judge winning by persuading people to agree with your point of view.

I also believe that a central explanation for what we’re witnessing–and one related to the ingenuity and power of the Sullivan and Rauch arguments–is that they helped reposition the gay rights movement from libertine to conservative, from gays being a threat to our social order and institutions to wanting to be a respected part of them. They didn’t want to uproot marriage, they wanted to share in its blessings.

Once that shift occurred–once many Americans believed that the gay movement was de-radicalized and domesticated–much of the opposition to gay marriage began to dissipate. Not all at once, of course, and many Americans still oppose same sex marriage. (Ron Brownstein argues that that for the near future, “the nation appears locked onto a trajectory in which almost all reliably blue states will establish gay marriage (or civil unions) and possibly not a single reliably red state will follow.”) But because of the generational differences when it comes to gay marriage, there is little doubt where this issue is headed, regardless of what the Supreme Court decides.  

There will still be important issues to sort through, including how religious institutions and people of faith who oppose same sex marriage are treated. For example, will orthodox Christian churches and educational institutions, if deemed to be bigoted based on their opposition to gay marriage or homosexual conduct, eventually be treated in law like racist organizations? Will mainstream evangelical colleges one day be dealt with in the same way we did Bob Jones University? (In the early 1980s Bob Jones University lost its tax-exempt status because of its ban on interracial dating.) That may not happen. But if it were to occur, the debate could quickly shift in a different direction, from being seen by many as a celebration of individual rights to one that is viewed as an attack on religious liberty. 

For now, though, what has occurred is a stunning social shift, quite unlike anything we’ve ever seen.

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The Court, Marriage, and Federal Power

After two days of hearings on cases relating to the legality of measures opposing gay marriage, it is not possible to discern what will happen when the U.S. Supreme Court hands down its rulings. The puzzling and illogical decision on ObamaCare last year should inhibit court watchers from attempting to extrapolate votes from the exchanges between the justices and the attorneys arguing the cases. And given the not inconsiderable number of options that the court has before it when it finally issues rulings about California’s Proposition 8 and the federal Defense of Marriage Act (DOMA), the result could be just as confusing and inconclusive as the arguments that have been aired this week. That makes it as unlikely that the court will act to impose a right to gay marriage on the entire country as it is that it would attempt to prohibit it in those states where legislatures have enshrined it in law as a right.

But if, as gay marriage proponents seem to think, the tide of public opinion has irrevocably shifted on the issue from where it was in 1996 when Congress overwhelmingly passed and Bill Clinton signed DOMA, or even when the voters of California endorsed a constitutional amendment prohibiting state recognition of gay marriage, then it is possible that the court will listen to the polls and do on this issue what it did 40 years ago on abortion with Roe v. Wade. Irrespective of where one comes down on gay marriage, that would not be good for the country.

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After two days of hearings on cases relating to the legality of measures opposing gay marriage, it is not possible to discern what will happen when the U.S. Supreme Court hands down its rulings. The puzzling and illogical decision on ObamaCare last year should inhibit court watchers from attempting to extrapolate votes from the exchanges between the justices and the attorneys arguing the cases. And given the not inconsiderable number of options that the court has before it when it finally issues rulings about California’s Proposition 8 and the federal Defense of Marriage Act (DOMA), the result could be just as confusing and inconclusive as the arguments that have been aired this week. That makes it as unlikely that the court will act to impose a right to gay marriage on the entire country as it is that it would attempt to prohibit it in those states where legislatures have enshrined it in law as a right.

But if, as gay marriage proponents seem to think, the tide of public opinion has irrevocably shifted on the issue from where it was in 1996 when Congress overwhelmingly passed and Bill Clinton signed DOMA, or even when the voters of California endorsed a constitutional amendment prohibiting state recognition of gay marriage, then it is possible that the court will listen to the polls and do on this issue what it did 40 years ago on abortion with Roe v. Wade. Irrespective of where one comes down on gay marriage, that would not be good for the country.

Let’s first acknowledge that the culture war about homosexuality has been convincingly won by gays. Twenty years ago the already widespread acceptance of openly gay figures in pop culture had not transferred to the political sphere. Indeed, as recently as 2008, a staunch liberal like Barack Obama had to swear his opposition to gay marriage in order to be considered a mainstream political figure. But that is no longer the case. While national attitudes are still far from unanimous, anyone who would argue that the trend toward its acceptance is not accelerating to the point where opponents are becoming a beleaguered minority has not been paying attention. While defenders of traditional marriage can still put forward coherent arguments about the assault on the institution, appeals to the basic libertarian instincts of most Americans are winning the day for the pro-gay marriage point of view. Nor do the claims that gays marrying would materially damage straight marriages seem to have much traction. A political environment in which most people see the issue as one of equal rights for all citizens, as opposed to one about the distortion of the meaning of an institution to suit the whims of a minority, is not one that is sustainable for gay marriage opponents.

That is exactly why the courts can and should defer to the legislative process to sort out this issue.

It may be that the argument put forward that denying gay marriage is a violation of the Constitution’s 14th Amendment equal protection guarantees is accepted by most Americans. If the high court were to unilaterally rewrite the meaning of the Constitution in that way, it might please not only the media and the pop culture world but perhaps a majority of the country. But such a broad stroke would create other problems that are best avoided.

While seemingly harmless, the rush to codify gay marriage as a constitutional right contains within it the possibility of creating a genuine danger of discrimination against religious faiths that oppose the idea. Catholic institutions (already under assault from federal mandates on reproductive issues) as well as Orthodox Jews, the Greek Orthodox and a host of evangelical Protestant denominations could be put in the awkward position of not just being labeled as bigots but as possible law breakers because of their beliefs due to new requirements to recognize and grant benefits due to spouses. If there is to be a right of gay marriage it must be enacted with stipulations that exempt religious institutions as well as clergy from any repercussions from a refusal to go along with the new consensus. That is the sort of sensible compromise that is far more likely to be brought about by the legislative process than a top-down court ruling.

Gay marriage advocates argue in reply that civil rights cannot be subject to the majority vote but rather must be protected by the law regardless of the whims of the mob, as the founding fathers would have understood the issue. They point to the struggle for racial equality in this country in which the courts played a necessary role in both protecting liberty and in prodding the legislatures and public opinion to catch up with what was right. But however much this issue is represented as one that can only be understood as a question of equality, the creation of a new right via the redefinition of an institution is not quite the same thing as righting the wrongs of slavery. The pro-gay marriage side must understand that it is asking the federal government to go into uncharted waters in that respect, as well as by taking this issue away from local institutions that have always governed interactions between the state and married couples.

Change is best achieved when it is accomplished via the democratic process and with respect for the rights of individual states to sort these things out according to the beliefs of its citizens.

If gay marriage advocates are confident, as they probably should be, that time and public opinion are on their side, then they should concentrate their efforts on winning their battle in the legislatures. That is something they have been doing with increasing success in recent years. Were the court to short-circuit that struggle it would set off a new and bitter struggle over the issue that would distort our politics and roil the culture for years and perhaps decades to come.

While the temptation to enact an all-or-nothing proposition in response to the baffling choices before it may entice some of the justices, they should listen to the voices of caution and avoid such a solution. That might mean punting on the California case, in which it can be argued that Prop 8’s supporters don’t have the standing to argue against its invalidation by state courts, as well as by striking down DOMA as a wrongful federal interference with a state matter.

That would disappoint conservatives who hope the court might save the country from the drive to enshrine gay marriage in various states. But in these cases, as in so many other issues, the greater wisdom always rests in restraining the power of the federal government to impose its will on the states and the people. If America is truly “evolving”—as liberals would have it—toward acceptance of gay marriage, then let it do so by the democratic process and not by a court eager to stay ahead of or get out of the way of public opinion.

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Gay Marriage Debate Moves to Congress

Rudy Giuliani was on CBS News this morning cautioning Republicans to stay out of the gay marriage debate. It looks like he’s a bit late. Last night, the House passed a Republican-backed bill that would prevent the Justice Department from using taxpayer funds to oppose the Defense of Marriage Act, Politico reports:

With a 245-171 vote, the House voted to stop the Justice Department from using taxpayer funds to actively oppose DOMA — the Clinton-era law defining marriage as between a man and a woman that the Obama administration stopped enforcing in February 2011. …

Democrats immediately attacked Republicans for the vote.

“On an historic day and in the dark of night, House Republicans have voted to tie the hands of the Obama administration with respect to their efforts to end discrimination against America’s families,” Drew Hammill, a spokesman for House Minority Leader Nancy Pelosi (D-Calif.), said in a statement. “House Republicans continue to plant their feet firmly on the wrong side of history.”

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Rudy Giuliani was on CBS News this morning cautioning Republicans to stay out of the gay marriage debate. It looks like he’s a bit late. Last night, the House passed a Republican-backed bill that would prevent the Justice Department from using taxpayer funds to oppose the Defense of Marriage Act, Politico reports:

With a 245-171 vote, the House voted to stop the Justice Department from using taxpayer funds to actively oppose DOMA — the Clinton-era law defining marriage as between a man and a woman that the Obama administration stopped enforcing in February 2011. …

Democrats immediately attacked Republicans for the vote.

“On an historic day and in the dark of night, House Republicans have voted to tie the hands of the Obama administration with respect to their efforts to end discrimination against America’s families,” Drew Hammill, a spokesman for House Minority Leader Nancy Pelosi (D-Calif.), said in a statement. “House Republicans continue to plant their feet firmly on the wrong side of history.”

Interesting timing, no? Actually the measure, which was sponsored by Rep. Tim Huelskamp and tacked to a broader multi-agency funding bill, appears to be completely unrelated to Obama’s announcement. Metro Weekly first reported on Tuesday – before anyone had any inkling about Obama’s gay marriage shift – that Huelskamp was preparing to offer the amendment this week.

Peter noted last night that Obama was smart to wait until after the North Carolina vote to offer his opinion – if he’d endorsed gay marriage beforehand, surely the narrative now would be that Obama’s position was rejected by swing state voters.

But Obama was also savvy to make his announcement around the same time the House GOP was set to vote on the DOMA funding amendment. Mitt Romney has already rebuffed questions on this issue, and, as expected, tried to shift the focus back to jobs and the economy. But House Republicans, the Obama campaign’s go-to adversaries, are already providing a prime contrast to the president’s newly-announced position.

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