I recently got back in touch with David Benkof, an old colleague from the Institute for Gay and Lesbian Education. He used to write a gay history column that was syndicated in many publications, and I used to be on his editorial board, proof-reading and commenting on articles prior to publication. In recent years, he has committed himself to Orthodox Judaism, and while still identifying himself as bisexual, he is guided by Jewish law, and is writing columns advocating much more traditionalist positions. I've agreed to be on his informal editorial review cycle once again, which should be interesting. Even though I'll likely disagree with his positions more often, he's a bright guy with a unique perspective, and I hope we'll both learn from each other. I'll probably take the opportunity to respond to some of his pieces (post publication, of course) on my blog. Here's the first.
David likes to seek unexpected common ground between divergent viewpoints, and over at marriagedebate.com, he comes up with a challenge for same-sex marriage advocates. If we're serious about respecting and preserving the traditional values underlying marriage, David asks, can we all agree not to legitimize "Daddy-boy" relationships by including them in any future revision of the definition of marriage? He's referring not to any actual incestuous relationships, but to relationships between consenting adult males where there is a large age difference, where the partners may refer to each other as "Daddy" and "my boy", and where a little whiff of taboo might give them a kinky erotic charge. By playing up the resemblance to incest, David hopes that it will be a slam-dunk for all of us decent folks to agree to exclude those kinky Daddy-boy couples from the definition of marriage.
Alas, it is David who is unwittingly proposing a significant and dangerous alteration to the definition of marriage. Historically, the official (i.e., legal) definition of marriage has always been a matter of a few clearly adjudicable requirements: opposite gender, minimum age, no common grandparents, and not already married to someone else. Any consenting couple who met those qualifications could get a marriage license. Whether the groom was a known wife-beater, whether the bride was on her tenth marriage, whether the couple were separated by several decades and a vast income disparity, the state did not inquire. Traditionally, the state has humbly held that the marrying parties themselves were in a better position than the state to judge the appropriateness of the union. But now David proposes to change that, suggesting that perhaps the state does know better after all. In order to preserve the dignity of the hallowed institution, so that no inappropriate role models would gain the imprimatur of state-sanctioned marriage, it now seems necessary for the state to poke its nose under the connubial covers.
I don't know how exactly David imagines implementing his proposal. Would there be a state marriage quality board comprised of moral authorities who would interview marriage license applicants (along with their references, neighbors and co-workers) to pass judgment on each marriage? If so, would there be periodic reviews of existing marriages to make sure that the moral quality hadn't declined? Will this be narrowly tailored to only exclude those who actually get kicks out of pretending to violate a taboo, or would merely using the term "Daddy" be a prima facie violation? Should we impose a maximum age difference on all marriages just to be safe? Instead of a review board, perhaps there would simply be an affidavit as part of the marriage license application, asking the spouses to disavow any kinky business. If so, how would that be enforced? Could any citizen bring charges against a neighbor whose marriage was creating a moral hazard? Would they be criminal or civil?
Remind me again - how is this proposal conservative or traditional?
Thursday, May 08, 2008
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13 comments:
Tom-
You make an excellent point, which isn't surprising given the high level of your thought process on this and other topics. Starting to add criteria to the short list required for marriage is a dangerous precedent, and my proposal would be extremely difficult to implement and regulate.
But for me, a marriage by definition is something based on the husband-and-wife models going back to Adam and Eve. A relationship that models itself on parent-child relationships would do tremendous harm to the institution of marriage by so diluting what that word means that it is almost meaningless. And having "I now pronounce you man and wife" be meaningless would harm relationships and the children raised in them everywhere.
So I would need another reasonable, ethical, and legal mechanism to exclude "Daddy-boy" couples from the marriage rolls. The only one I can think of is to retain the age-old definition of marriage which has worked pretty well for most people for a very long time. If you have another proposal of how I could achieve my goal of excluding Daddy-boy couples from marriage without retaining the present definition I would definitely be open to hearing it. Maybe we can come up with a compromise that is consistent both with your values and with mine.
The last I checked, the religion clauses of the 1st Amendment were still intact. So how dare David Benkof, or any of the so-called Christians who seek to deprive gays from the right to marry, impose their religious beliefs -- i.e., marriage is based on the model of Adam and Eve -- on the rest of us.
jeff hersh
And how dare Benkof impose his peculiar vision of taste upon the marriage laws by excluding gay couples with a large age gap, or who otherwise appear to take on a "Daddy-boy" appearance, whatever that means.
Let's analyze the heart of his purported argument, that such relationships would harm marriage by diluting its meaning, and damage married couples' relationships, and harm their children. Such logic is so devoid of intellectual power that it couldn't light a firefly. It's elitist and exclusionary, and offends me far more than anything Rev. Wright has said. A married gay couple can no more detract or affect another couple's marriage than a Ford Pinto can destroy the grandeur and handling of a Rolls Royce, or a parapalegic can prevent a mile-relay team from sprinting.
And if gay marriages cannot affect any other marriage, it cannot undermine or weaken the
"institution" of marriage. The argument is merely code for saying only people he deems worthy of marriage should be thus allowed to marry, similar to the law of many states prior to Loving v. Virginia. Shall we exclude the fat, the ugly, the stupid?
You want to base your marriage on the model of Adam and Eve? Fine, go ahead, assuming you can find a wife who agrees to allow you to deem her chattel. But don't impose your religious beliefs on me. I'm not forcing you to marry a man who's 20 years older, or 20 years younger, than you. I'm not forcing you to marry any man. I'm not forcing you to marry any one. So don't dictate whom I can and cannot marry.
It is stunning that Jeff Hersh suggests that I am the one who is in violation of the spirit of the First Amendment, instead of him.
The First Amendment does not require me to justify my religious beliefs, but the fact is that the Talmud's comments in Chullin and yes, the Adam and Eve story in Genesis, make it clear that Judaism calls upon its adherents to stand up against both Jewish and civil same-sex marriage.
Yet you write "how dare" people like me "impose" our "religious beliefs ... on the rest of us." You also instruct me not to dictate to you who you can and cannot marry.
Let's leave aside the fact that a man you probably want to be president calls your stance a "practical absurdity." Barack Obama said in a major speech two years ago, "Our law is by definition a codification of morality, much of it grounded in the Judeo-Christian tradition." (google it)
Are you actually saying that I have a patriotic duty to speak out on issues, lobby the government, and even vote based on your values instead of my own? If I refuse to do so, what do you suggest - should I not be allowed to state my views on the Internet, communicate them to my legislators, and even vote until I agree not to inject my personal morality into my opinions?
If so, exactly which one of us is violating the spirit of the Free Exercise Clause? If not, then what exactly is your point? Since I believe Orthodox Jews are called on to oppose civil same-sex marriage (and unless you're fluent in Aramaic, you're going to have to trust me on that), aren't you really saying "Don't be an Orthodox Jew"?
How is that any less offensive than the people you call "so-called Christians" who say to you "Don't be gay" (something I've never said)?
I'm not trying to be witty or sarcastic. I really do not understand the point of view of people who demand I violate my conscience and vote based on their values instead of mine. Why don't we each speak out, lobby, and vote using our own belief system, and majority rules? That's what I thought democracy is all about.
Am I missing something? Feel free to respond here or write me offline at DavidBenkof(at)aol.com.
P.S. As for your opinion that couples whose relationship is based on the incest model are just as entitled to marry as interracial couples, I think it's great that in a democracy we can all advocate the kinds of marriage laws we believe in. Please make your point as often and as loudly as you can. It'll help people understand how many, many advocates of "marriage equality" have no idea what marriage is.
Your response to my criticisms comes straight from the Karl Rove playbook -- ignore the argument, attack the messenger, repeat vitriolic and conclusory statements until people believe they are true.
I am not infringing upon your free exercise rights by asking you not to infringe mine. I am demanding that you to adhere to the establishment clause, which is intended to prevent the majority or the State from imposing its religious beliefs upon others. The whole intent of a Constitution, and in particular the Bill of Rights, is to prevent the tyranny of the masses from trampling on the rights of the minority. You seem to think the religious majority can establish their religion in a piecemeal fashion through legislation.
I never said you don't have the right to your speech, as idiotic as I may believe it to be. I never said you didn't have the right to be an Orthodox Jew, and harbor whatever beliefs you choose, but only so far as you don't infringe the rights of others. Just as you cannot sacrifice a 17-year-old virgin and avoid prosecution for murder, you cannot properly impose any purely religious doctrine upon others. We are a nation of secular law, where the Constitution is Supreme to all other laws, and the Bible, Koran and Bhagva Gita play no role. Police powers must be restricted to legitimate secular purposes of protecting the health, safety and general welfare of the public, not to uphold some abstract notion of religious morality.
Where you and others attempt to impose your religious beliefs to restrict gays from marrying, or to prevent an age-gap for marriage you deem Biblically offensive, is to go beyond the protection of the free-exercise clause for it infringes upon my right to practice my believes, and my basic freedom to love whomever I choose.
And lets stop this inane charge of incest, and the meaningless construct of a relationship based on the incest model. No one is talking about brothers and first cousins marrying. To oppose relationships with an age gap you believe "looks" too much like incest is akin to sentencing someone to life because they look like Charles Manson.
Jeff Hersh
Jeff-
What we have here is a failure to communicate. In your most recent post, you said:
Group A:
"I am not infringing upon your free exercise rights"
"I never said you don't have the right to your speech,"
Group B:
"I am demanding that you to adhere to the establishment clause, which is intended to prevent the majority or the State from imposing its religious beliefs upon others."
"only so far as you don't infringe the rights of others."
"you cannot properly impose any purely religious doctrine upon others."
"Where you and others attempt to impose your religious beliefs to restrict gays from marrying, or to prevent an age-gap for marriage you deem Biblically offensive (huh? I never said that), is to go beyond the protection of the free-exercise clause for it infringes upon my right to practice my believes,"
Well, which is it? My religion calls on me to fight same-sex civil marriage. You are telling me both that it's OK to follow the dictates of my religion in a free country and that I must attempt to impose my religious beliefs by restricting gays from marrying. Pick a side, any side. Should I speak out, vote, and lobby based on my values or are you demanding I act based on yours? How is that freedom of expression?
And let's say we agree to disagree whether I should support a kind of "marriage" I think is destructive to the institution and to society as a whole. I'm nonetheless going to go ahead and ignore your objection and work hard to convince voters and legislators to retain society's long-standing definition of marriage. So what do you think should happen then? Should I be disenfranchised? Should my op-eds be censored? Should I have to stop posting comments on the Web unless they support your definition of marriage?
I really don't understand what you want from me.
My idea of democracy is nobody should try to silence anyone else. We can each advocate for the kind of marriage that fits with our deepest beliefs, and then the voters and the legislators will decide. If it's really unconstitutional, the people most qualified to decide that are on the Supreme Court, rather than you or I. What's wrong with that?
As for the "inane" charge of incest, google the comments on Daddy-boy relationships by openly gay sexpert and porn writer Simon Sheppard. He says that incest fantasies definitely play a role in some Daddy-boy eroticism, and that some Daddies actually legally adopt their boys, thus meaning when they have sex they are literally practicing incest. And you want such couples to have access to marriage? I respectfully disagree.
Let's each keep advocating for our points of view and let the wider society decide who's right.
If you believe your religion entitles or requires you to impose it upon others by restricting their right to practice their own beliefs, then your proper course of action is to lobby to amend the Constitution and abolish the religion clauses, the equal protection clause, and the due process clause, for all of them stand in the way of any evangelical extremist who believes God has called on them to dictate how others should live their lives.
You clearly have no clue on how much your positions threaten my personal freedom. Imagine if half of the Christians in this country launched a campaign to restrict Jews from marrying Jews, arguing that their religion deems it immoral, and compels them to save the institute of marriage. The fear that would evoke is you is exactly the fear your position and political agenda evokes in me.
If you cannot understand that, then we lack sufficient common ground for any dialog.
jeff hersh
Jeff-
Indeed I do believe my religion requires me to try to impose its values upon the wider society by restricting their right to practice their own beliefs, if those beliefs lead to a limited but well-defined list of actions Orthodox Jews believe are immoral such as murder, torturing animals, and same-sex marriages. I see no need to lobby to amend the Constitution and abolish the religion clauses, the equal protection clause, and the due process clause, for no judge in history has ever agreed with you that they stand in the way of someone like me, Barack Obama, Martin Luther King, William Lloyd Garrison, and many other great Americans who have based their political positions on Judeo-Christian morality.
So we come back to the same question: what exactly do you expect me to do? Refocusing my energy from protecting marriage to repealing important constitutional provisions because of your unique, idiosyncratic constitutional philosophy makes no sense.
Should I voluntarily switch my civic activism to reflect your values instead of mine, or should I be forced to do so by law? If neither, what on earth is your point?
I'd be very interested to hear which of us makes more sense to the reasonable and talented Tom Chatt, who started this conversation in the first place. Tom?
Wow, I go away on a business trip and a debate breaks out on my blog.
David, I was going to point out the error of your "no judge in history" comment, pointing among other things, to the excellent opinion of the (Republican Catholic!) Judge Kramer here. However, now there's an equally good opinion from Chief Justice George, which you will have seen in the headlines by now. I completely agree with these holdings that the state's denial of equal recognition and dignity to my marriage in preference to opposite-sex marriages is as unconstitutional as the miscegenation laws of earlier generations. I realize you don't agree, as do many others, but I am confident that that view will be a diminishing minority in the light of liberal progress, just as the miscegenation laws now seem a quaint and embarrassing relic of an earlier time.
Of course you have a right to advocate for a constitutional amendment to enforce your views, just as you have a right to advocate for a return to miscegenation laws. But people who hold to the values of liberty and equality that our society cherishes, and who hold to the constitutionally limited government established by our nation's founders in order to preserve those values, will take such advocacy as an offense to those values.
I am fully aware of the possibility that California's voters may overturn today's triumph of justice, but I take some consolation in the fact that the conflict between that position and the fundamental California rights to personal autonomy and liberty have been clearly annunciated, and that cannot be overturned by the voters. And I have faith that the path of progressive enlightenment of our society on these issues is on the side of justice.
I wrote this last night but couldn't send it because a hail storm knocked power, during which time the CA Supreme Court has spoken indirectly to the issue of our debate. I haven't read the opinion, but here is my final response to our debate:
You fail to dissociate between being guided by your religious moral beliefs and imposing them upon others. I'm confident you are capable of understanding this distinction -- and my point – if you truly think about it instead of summarily dismissing it. It is neither unique nor idiosyncratic, and contrary to your claims, is not foreign to judges. In fact, the U.S. Supreme Court has embraced this distinction, as I will explain below.
You also fail to dissociate between PURELY religious or private moral beliefs, and moral issues of a secular nature, such as those that protect the health, safety and public welfare – the so-called police powers. I don’t suggest that every value in the Bible is inappropriate to legislate; prohibitions against murder and stealing are quite appropriate to legislate because they have an independent valid secular purpose, to protect the safety and property of others. However, I take issue with any law that SOLELY imposes a moral belief on others.
Let's examine legislation through the framework of police powers. You seem to believe a legislature is free to pass any law it chooses so long as it doesn't violate the Constitution. This is not true. Laws may only be enacted that satisfy the police powers mentioned above. Historically, the laundry list included upholding "public morality," but there was almost never legislation that solely upheld public morality without also advancing health, safety and general welfare.
This changed when the gay rights movement advanced, and public morality was effectively dropped from police powers in Lawrence v. Texas (which held that states cannot ban gay sex). The problem with allowing laws that solely uphold public morality is that it permits the enactment of any and every law, every restriction – one need only say the law is moral, and it necessarily passes the rational basis test. Scalia believes as you do, that legislators are free to impose their moral views on others, and he argued in Romer v. Evans, the Colorado Amendment 2 case, that the extremely discriminatory amendment was rationally related to achieving its purpose, which was discriminating against gays. (Scalia has made it clear that he would uphold criminalizing and incarcerating gays, and likely would uphold forced reparative therapy techniques.)
However, Scalia recognized how significant the Lawrence holding was, for in his dissent he lamented that the Court changed the definition of appropriate police powers, a definition that long predates our Constitution, without any discussion. Scalia was correct that the change warranted a developed discussion, and perhaps only Scalia fully recognized the jurisprudential significance of the holding beyond what it did for gay rights. But the majority did not blindly drop public morality as an appropriate basis for legislation in Lawrence; it continued the path it began in Romer, which led the justices to the same determination that I have advanced in our debate, that it is improper to base any law solely on upholding religious morality, for it merely enables Scalia’s circular reasoning.
Another way I like to examine appropriate police powers it to categorize all laws – and I’m really here only discussing laws that restrict individual freedom, not, say a bill to pay for road repairs – into three categories: (1) those that restrict an individual from harming another person or some property; (2) those that restrict an individual SOLELY from physically harming themselves, or their own property; and (3) those that restrict the individual SOLELY from morally harming themselves. I’ve capitalized SOLELY in attempt to pound in the point I believe you continue to miss. For example, murder statutes both restrict individuals from harming another, and from harming themselves morally (at least under most people’s religious or moral view). Accordingly that is deemed a category (1) law, because it is not SOLELY related to upholding morality. Mandatory seat-belt and helmet laws are category (2) laws, for they force someone to do something for their own safety. Frankly, I’m quite reluctant to permit such laws philosophically, but there are practical exceptions, and I won’t digress into this debate here. Anti-sodomy laws, anti-gay-marriage laws and the like are SOLELY category (3) laws in that they do nothing to protect other people or property, or even help the individual’s well being. They merely proscribe what some deem morally correct behavior. I strongly oppose police powers including any such laws. Furthermore, I believe that such laws violate both the religion clauses, as they “establish” a purely religious belief, and thereby restrict the free exercise of others’ beliefs that conflict. For me, all laws that treat gays, gay relationships and gay sex as different or of less value than straights, straight relationships and straight sex fall into this third category, and improperly infringe upon my personal or religious beliefs.
I want to emphasize that the issue of imposing one’s religious beliefs on others extends far beyond gay rights, and threatens the fabric of our Constitutional system, and of freedom. You have the right to tell people you think that gay sex is wrong, or interracial marriage is wrong, or couples with more than a 20-year age difference is wrong, or that certain sexual fantasies, fetishes and role playing is wrong. But no one has the right to legislate such nonsense because it violates the Constitution – as it should be interpreted – and amounts to improper laws beyond the scope of appropriate police powers.
That laws have historically discriminated against gays is no more justification for them in light of our Constitution or police powers than was slavery, so don’t use the argument that society has always banned gay marriage as justification. That’s exactly what the majority in Bowers v. Hardwick did in 1986 when it upheld Georgia’s criminalization of private consensual gay sex between adults. Most of the majority opinion’s reasoning was based on the history of prohibitions against gay sex through the Old and New Testaments, a wholly improper basis for a decision, yet the justices did so because there were no valid arguments to support Georgia’s law. The Supreme Court rarely overtly overturns its holdings, and I cannot recall another case in which the court did so as quickly as it reversed its decision in Bowers. It did so because the laws and arguments against gays are fundamentally bankrupt and discriminatory, and the sole basis for them are archaic religious beliefs that are discriminatory and dead wrong, yet clung to by many in the course of their religions. But just as we have overcome Biblical morality that brought us slavery, and women being treated as chattel and having no rights, we too will transcend the few scriptural passages that purport to condemn same-sex acts – unless, of course, your dangerous views prevail, and the majority imposes its peculiar religious beliefs on the masses.
Sadly, few in this country understand or deserve freedom, for hypocrisy plagues us. Many seek freedom only for themselves, and desire to oppress others to shield them from that which they find objectionable. Freedom necessarily means that we will be exposed to others who wear clothes and hair styles that offend us, to sexual practices that disgust us, to relationships that make us cringe, and to ideas we find revolting. If we cannot learn to allow others to live and express themselves as they choose, provided they do not do so in a way that unduly interferes with others, then we do not deserve to be free.
Jeff Hersh
Tom-
You try to prove my "no judge in history" comment is in error by pointing to two decisions explicitly based on the California Constitution, not the U.S. Constitution we were discussing. I haven't lived in California since 2001. Why would that state's constitution limit my freedom to push for laws that impose my religiously based values on the wider society during seven years in which I have lived in Nevada, Jerusalem, New York, and St. Louis?
I noted your comments about "the light of liberal progress" and "the path of progressive enlightenment of our society." It's a myth that history always moves from conservatism to liberalism in a straight arrow. (If you had ever taken one of my classes at IGLE instead of Gay Screenwriting or whatever, you'd know that!) The 1930s were more conservative than the 1920s, for example. And since 1968 America has been going through a conservative phase.
I appreciate that you say there's nothing wrong with my advocating what I believe, other than the fact that others may take offense. But I take offense at the activists who are tampering with the institution of marriage! So? Why don't we each advocate for our own beliefs, and majority rules? You're offended by my conduct and I'm offended by your conduct, and that gets us absolutely nowhere.
People like Jeff should focus on making the most persuasive case for his ideas rather than crying foul that people like me have the gall to promote policies based on our beliefs.
Jeff-
You write that I "fail to dissociate between being guided by your religious moral beliefs and imposing them upon others" and suggest that if I really thought about it, I'd agree with you that I should keep my beliefs to myself and not support civic policies based on them. This patronizing attitude, common among liberals, reflects more poorly on you than it does on me. If you check around and find out that I'm not much of a smart guy and I rarely think through my ideas, I'd be very surprised.
If your other comments are true and laws that impose moral beliefs on the society are unconstitutional, what are you afraid of? My job in a free society is to support whatever laws I want, and it's the judicial branch's job to strike those laws down if they are unconstitutional. I don't see why I should stop supporting policies I believe (and officials who appoint judges that defend my right to do so) just because Jeff Hersh considers them unconstitutional. Why don't you focus on critiquing why my proposed policies are inappropriate, instead of trying to get me to voluntarily back down? Then the judges can decide who's right.
You write that laws upholding man-woman marriage "do nothing to protect other people or property, or even help the individual’s well being." It is fine that you have that belief. Personally, I think man-woman marriage absolutely protects people, especially children. I think today's Supreme Court decision poses real dangers to religious freedom, for the sake of a tiny tiny advance in the rights of same-sex couples (the word "marriage.") So we have a disagreement on whether defense-of-marriage laws are in category (3) or not. Are you seriously suggesting that I keep quiet about the benefits of such laws because you happen to think same-sex marriage is great? What about democracy?
You write, "For me, all laws that treat gays, gay relationships and gay sex as different or of less value than straights, straight relationships and straight sex fall into this third category, and improperly infringe upon my personal or religious beliefs." It's interesting you say that, because for me all laws that treat gays, gay relationships and gay sex as the same or having equal value as straights, straight relationships and straight sex improperly infringe upon MY personal or religious beliefs.
Now, it is undeniable that my beliefs are in the majority and yours are in the minority in the United States of America. Why, exactly, should society listen to you instead of to me? I just do not understand.
You write that "no one has the right to legislate such nonsense because it violates the Constitution." Well, it's an interesting point of view. When a gay couple in Orange County brought a federal lawsuit with the same argument, gay-rights groups mobilized to quash their case, because they knew that Justices Scalia, Thomas, Roberts, Alito and even the very gay-friendly Kennedy would be unsympathetic to such a far-out claim. But go ahead - why don't you bring a similar lawsuit? I might even be able to get some of my right-wing friends to fund your legal bills because the likely result is a decision upholding man-woman marriage. Up to you.
You write "But just as we have overcome Biblical morality that brought us slavery." My, my, my. Certainly, some slaveowners cited the Bible to defend their peculiar institution. But the opponents of slavery were overwhelmingly Protestants who felt the Bible called on them to be abolitionists. Why do you think Harriet Tubman was called Moses?
I must say I don't take well to having my views called "peculiar" and "dangerous." I don't do this often, but I know a lot of embarrassing facts about the gay, lesbian, bisexual, and transgender community after belonging to it for more than a dozen years. Do you want me to start pointing out peculiar things about LGBT priorities, values, and institutions? Or the dangerous practices beloved by some gay men? If you continue to use such language about people like me, I won't hesitate to use it about people like you.
You write "Sadly, few in this country understand or deserve freedom, for hypocrisy plagues us." Ah, now we're getting somewhere. Finally I understand why despite your violent disagreement with Barack Obama's support for legislating Judeo-Christian morality, you will probably vote for him. You're an elitist. You want people like you to influence policy, but not those who disagree with you in their hypocrisy and their not being deserving of freedom. You basically say that only "liberals" like you deserve to be free.
Do me one favor. Some time, look up the word "liberal" in the dictionary.
Thanks for chatting.
I was correct in the beginning -- you are Karl Rove. I will not engage in further discourse with you.
Jeff Hersh
Jeff-
Given that I'm a conservative Republican, hearing you compare me to one of my heroes is received as a compliment, not an insult.
Let me know if you change your mind.
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