Gay Marriage in New Jersey

by Ryan on February 18, 2007

in Anything Else,Culture

As of 12:01am Monday, gay marriages will be performed legally for the first time ever in the Garden State, making Jersey the second state in the Union to allow such legal proceedings to take place after Massachusetts.  Some are trying to get the NJ Constitution to clearly define marriage as a union between an man and a woman, others are cheering this as a big step towards equal rights for New Jersey’s homosexual community.

Without drawing hate from “open-minded” people who don’t want to hear another point of view on this issue, I’ll leave the readers with some questions:

  • What if the couple gets married in New Jersey and moves to Kansas demanding that Kansas recognize their union?  Does one think that “full faith and credit” constitutional issues are likely to arise?
  • What if they want a divorce within the first five years of marriage as heterosexual couples are notorious for doing? Are the same legal principles still in play?
  • What if a 60 year old man wants to marry his 12 year old niece and two of her 12 year old friends, one male one female?  While that’s not legal now, what about the importance of love in a relationship?  Who are we to say that their love is not true and should not be condoned by law? Why should there be legal hurdles against their right to consummate their love in a public way?

See since this door has been opened, you cannot argue that the third bullet is completely ridiculous.  Brown v. Board of Education of Topeka, Kansas (1954) started with desegregating public schools, but the legal principle ostensibly, then legally, spread to all public areas, regardless of the non-educational component of public rest areas, water fountains, and public bus stops– and not just in Kansas either.  I’m just concerned that proponents of gay marriage have not thought through the consequences of the legal aspect of gay marriage, relying on the emotional charge implicit with any talk of “two people loving one another.”  Let’s watch and see where this goes in the future.

{ 20 comments… read them below or add one }

Phil February 19, 2007 at 7:25 am

“…started with desegregating public schools, but the legal principle ostensibly, then legally, spread to all public areas, regardless of the non-educational component of public rest areas, water fountains, and public bus stops– and not just in Kansas either.”

What in your view should have been done to nip the spread of desegregation in the bud?


Mike February 19, 2007 at 12:55 pm

I don’t think he was criticizing those desegregation measures. Ryan was merely showing how the legal reasoning underlying one case can spread to others. Desegregation applied to education was based on the principle that separation was inherently unequal. Although Brown was decided in the context of education, its rationale regarding segregation applied in other contexts as well. It was a good thing too because of basic decency and the equal protection clause.

The same dynamic is in play here. The rationale favoring same sex marriage is personal liberty. If that is the concern, that concern must also guide future decisions regarding the choices people make. If personal liberty is the guiding principle in same sex unions, it may also also be the guiding principle in other types of unions we aren’t contemplating. Ryan made a point concerning stare decisis. He was not criticizing the particular steps toward desegregation.

What does Ryan think should have been done to nip it in the bud? My guess would be the part of the post you quoted. He wasn’t criticizing those measures.


Phil February 19, 2007 at 3:10 pm


His example of how legal reasoning spreads from one case to another was desegregation. Since he’s arguing that we should _avoid_ the spread of legal reasoning in a contemporary case, it’s odd that he would bring up something where he approves of the spread.

You write, “The rationale favoring same sex marriage is personal liberty.” That’s one possibility. There are several reasons for legalizing same-sex marriage. I find the most persuasive to be equality, not necessarily personal liberty. From that standpoint, same-sex marriage is distinct from polygamous marriages, because the state currently allows women to marry men, but it does not allow any citizen to marry two or more persons. Thus, the state can support the value of equality by permitting men the same right it grants to women, without creating a new institution for multiple-person marriage. The rationale does not stretch across all possible permutations of marriage, any more than the rationale for mixed-race marriage did in the 60′s.


Mike February 19, 2007 at 3:39 pm


Eqaulity is also another possible ground, but the rationale being used in the debate for the most part is individual liberty more than eqaulity. Even assuming equality is one of the rationales for allowing same sex unions, the “slippery slope” or requirement for stare decisis may still be used to extend the right to polygamous marriages as well. People whose want to marry one person are allowed to do so but those who value multiple unions (sincerely or not) cannot enter into their preferred kind of marriage. I don’t buy that argument but it isn’t beyond the realm of possibility that a court would. Too many judges are outcome oriented in their approach.

At this moment in history, not many judges would use pretextual reasoning to achieve a result which allows bigamy. Who knows what would happen if people pursued the legalization of polygamous marriages at some point in the future when norms may be different as a result of an argument based on personal freedom. And that’s the argument posited, not equal protection but personal freedom.

As far as the comparison to segregation, you didn’t disagree that his point was consistency of legal reasoning. You merely said it was odd. I agree that segregation was an example, but it was merely that, an example of a different point altogether, legal reasoning. It was a procedural not a substantive example.

Despite our disagreement, thanks for the comments. I’d also like you to know that I appreciate the respectful and rational approach to this topic on your own site.


Steve February 19, 2007 at 8:33 pm

Wow. I’m not sure I even know where to start on how ignorant and absurd your ideas are. First, your third bullet point is, in fact ridiculous. Allowing two consenting adults of the same sex to marry does NOT create a legal precedent that can be used as an argument for a 60 year old marrying three 12 year olds. How dumb are you? As for your ‘Brown’ example, it sounds like you consider the desegregation of water fountains and bus stops a negative thing. Thanks for proving what we already knew about most gay marriage opponents.


Ryan February 19, 2007 at 8:59 pm

And proving that some people cannot have an objective point of view on some realms of discourse, Steve, you also miss the point here.

Having had a relative who came out, I am sympathetic to the arguments of many in the homosexual community. However, legally, nothing can be written off as “ridiculous” if certain lawyers and certain judges are present. The right to an abortion was magically concocted out of thin constitutional air by an activist court and a weak string of cases starting with Griswold v. Connecticut, a case about a married couple’s right to purchase birth control.

Phil, on the other hand, did not have to knock my intelligence to get his point across. He was commenting on the merits, or lack thereof, of my argument that legal decisions can sometimes have unexpected consequences. I absolutely support the Brown decision, but it best illustrates a point, as does Griswold, about how one case can lead to changes no one initially intended.

I also believe that the questions I posed are ones that need answering by many on both sides of the debate. Nor do I think it’s ignorant, absurd or dumb to get people thinking about such issues in a more legally abstract way.


Phil February 19, 2007 at 11:23 pm

Ryan (and Mike),

The problem with “slippery slope” arguments is not just that they can be fallacious (they aren’t automatically fallacious, but they can be), it’s that they shift focus to something that is not the issue at hand. I’m reminded of a seminar about marijuana use I attended where the counselors and police present kept hitting the point that marijuana was dangerous because it led to use of other drugs. That may be so, but the message that your audience takes is that marijuana, in itself, is not really harmful.

What you’re essentially saying, in your third bullet point, is that gay marriage is the “gateway drug” of marriages, which will lead to legal recognition of less-desirable marital arrangements. Your opponent can argue about the likelihood of the scenario you represent, but at the end of the day, neither party has really discussed gay marriage.

In answer to your first two bullet points, however, I suggest the following:
1. “What if the couple gets married in New Jersey and moves to Kansas demanding that Kansas recognize their union?”

Currently, states set their own marriage laws, and some of these laws differ even for mixed-sex marriages. (For example: It’s easier to get a divorce in some states than in others. First-cousin marriages are legal in some states. The age at which a person can sign a marriage contract, with or without parental permission, differs from state to state.)

My gut response is that Kansas should recognize any legal marriage performed anywhere else in the country, _as they already do for all heterosexual marriages, no questions asked_. The married couple has far more at stake in terms of the recognition of their marriage than either the state or the people of Kansas, who are–when you get right down to it–third parties.

2. “What if they want a divorce within the first five years of marriage as heterosexual couples are notorious for doing? Are the same legal principles still in play?”

Of course. Why wouldn’t they be?


Sal February 20, 2007 at 2:37 pm


I recognize your point about the “slippery slope” argument in general, but reject it when it comes to the courts. History is repleate with examples of court cases deciding one issue having unintended consequences on future court cases due to stare decisis and the lack of most federal and state judges from realistically interpreting law rather than concocting law out of their own opinions. Which is why I’m in favor of having social issues decided where they should be decided — at the legislative level — with the exception of blatant violations to state and U.S. Constitutions. One can argue that the Gay marriage debate is a result of a personal liberty or an equality argument, but one needs to have a rational basis in the law to make that claim found in the legally-passed laws of the State Legislatures or the Congress, or in the State or U.S. Constitutions. A judges job is to sort out the various laws on the books, not put their own personal moral opinion into play. By doing that, you make judges more like philosopher-kings than legal experts. In the case of Gay marriage, fine. If you want to convince the population that Homosexuals should be allowed to marry, go do that. Debate, convince, and win the argument through legislative means. Or, if you can convincinly point out the text of where in the federal or state constitution the law banning gay marriage is invalid, and judges use that basis as their rationale (which they have not done to this point, I might add) then I’m all for the rule of law and the will of the people, even if I disagree. However, what is happening is that most liberal social policy is never advanced through its proper channels because most people in the U.S. do not support it.


Phil February 20, 2007 at 4:58 pm

When the legislature of California passed a gay marriage bill, Arnold Schwarzenegger vetoed it, claiming that it was an issue for the courts. Would you agree that his veto was inappropriate, and he should have signed the bill into law?


Mary February 20, 2007 at 5:05 pm

One of the major flaws in the belief that courts should determine who should and should not marry is the fact that marriage is NOT a universal or civil right. Marriage is a state regulated privilege. There are many restrictions on marriage. Fathers can’t marry their daughters, pedophiles can’t marry young boys, a man cannot marry three women, many states restrict cousins from marrying, and some states restrict marriages between those with STDs. Homosexuals are not the only people who are restricted from marrying the person(s) of their choice.

Now before Steve starts spewing his overly recycled, very trite, ad homonem attacks, let me say that I am not equating homosexuality with incest. I only bring these other examples up to illustrate that marriage is a heavy regulated privilege. Just like driving is a heavy regulated state privilege.

Marriage is very costly to state (i.e. tax exemptions, spouse healthcare coverage, etc). Therefore marriage is a distinction granted to those who, via marriage, will in turn benefit the state. States recognize that marriage leads to proliferation, which for the most part, is socially advantageous. Just as the state does not find a blind person driving as beneficial to the state (and therefore does not issue blind people driver’s liscenses), so too the state fails to find gay marriage beneficial to society (and therefore does not issue gay couples marriage licenses). So it is here where the burden lies with the gay marriage advocates to prove, debate, convince, through the legislative process, that recognizing gay marriage serves the state interest. This is not, and should never be, decided by the courts. Judges are appointed to interpret the law, not to dictate what best serves the public’s interest.

The biggest threat that gay marriage poses is that it would inscribe into law that “love”, rather than its utility, is the sole measure for a state recognizing a marriage. If a state is forced to recognize a marriage between two men or two women just because they “love” each other, then how can the state deny three people who “love” each other, or for that matter deny a father or daughter if they “love” each other? If the purpose for marriage is to foster procreation and family (that which benefits the state), the answers to these questions are clear. When marriage is based just on “love”, the answers to these questions lose their logical reasoning.


Phil February 21, 2007 at 4:18 am


“…ad homonem attacks,”

Freudian slip?

“States recognize that marriage leads to proliferation, which for the most part, is socially advantageous.”

The problem here, Mary, is that the state is not at all consistent in using “socially advantageous” as the standard for determining who can marry. As has been pointed out ad nauseum, the state grants marriage rights to couples that are unquestionably infertile, and also to couples that choose not to reproduce. The state grants marriage rights to the mentally retarded, to convicted felons, to the incarcerated, to obese people, to people with genetic diseases, and to people who write bad poetry.

“So it is here where the burden lies with the gay marriage advocates to prove, debate, convince, through the legislative process, that recognizing gay marriage serves the state interest.”

Here’s where we disagree philosophically. I submit that the burden lies with proponents of discriminatory policies to prove a compelling need for the discrimination; absent a compelling need, the policy should fall.

I’ll give you an example: it wasn’t the obligation of black Americans to prove that their use of public drinking fountains presented no harm to society. It was up to the state to prove that there was a harm.

“Therefore marriage is a distinction granted to those who, via marriage, will in turn benefit the state. ”

You could make an argument that the children of wealthy couples benefit the state more than the children of the poor (they’re more likely to get an education, for instance.) You could argue that healthy, athletic children are better for the state than weak, obese children. And yet we do not provide special privilege to the marriages of the wealthy or the genetically fit. Carried to its logical conclusion, your argument has some chilling implications.

We value equality and freedom greatly in this society, and we view it as progress that the state does not provide special privileges to the “upper-class,” or to the “genetically superior.” Similarly, the state should not provide special privileges to men or to women. A woman has the right to marry a man, and a man should have the same right unless the state can provide a compelling reason that he should not. “Because he is a man” is not a compelling reason; it’s a circular argument. “Because his marriage would be infertile” is a red herring, since the state provides marriage rights to infertile couples.

“The biggest threat that gay marriage poses is that it would inscribe into law that “love”, rather than its utility, is the sole measure for a state recognizing a marriage.”

Again, you are not making an argument about gay marriage. In fact, you’re admitting that your best argument (“the biggest threat”) against gay marriage has nothing to do with gay marriage, but with one of myriad possible legal justifications for it.


Sal February 21, 2007 at 7:35 am


Based on your arguments of equality for the purposes of Gay marriage, let me ask you. Is it not then discrimination to say that two consenting adults who are brother and sister cannot get married? What is the “compelling state interest” in this form of discrimination? I am not trying to equate incest with homosexuality, but just posing another scenario with your same arguments.

The law and constitution does not ban discrimination per se. It also does not require that states show a “compelling interest” in the case of discrimination. Discrimination happens all the time, and it is perfectly moral and legal. The constitution specifically forbids one type of discrimination: discrimination based on race, in all cases (ironic, considering affirmative action). Various laws have been enacted by the legislatures to also provide discrimination protections to other classes, such as by sex or in many states now by sexual orientation. These laws were duly passed by legislatures and signed by the chief executive of said state or the President (and to answer your question on California, I agree with the Gov’s. veto, but not his reason for the veto. It is part of our system of government that the chief executive, who is the only person accountable to all the people of his/her state (or country) who has the power to veto legislation. The remedy for that if you disagree with his veto is to either elect a new governor or elect enough legislators to override the veto.)

The crux of the issue is this. Reasonable people can disagree on what marriage is, why it exists. Yes, our laws are a bit clugy on the matter, but they define marriage as a union between a man and woman, and the genesis of the marriage laws does have to do with the state’s compelling interest in children. There is no legal or constitutional provision to provide that homosexuals not being allowed to marry is a protected right. There is no legal or constitutional provision that states that a government has to have a “compelling interst” to enforce this. This should not be up to the courts to decide, which is what I think is the problem most of us have with this. Yes, I believe that marraige is an institution with a special purpose that does not require the union of two men or two women. I agree with most of the assertions made my Mary, as I think she sums up the argument quite nicely. However, if you want to convince the majority of the people to go along with you, by all means try. That’s our political process, that’s how a Democratic Republic is supposed to function. The big beef I have is that judges in both NJ and MA have usurped the rule of law and taken unprecidented action to put their own social policy preferences (which they are perfectly entitled to hold) into our nations juriceprudence, which is excatly what a judge is not supposed to do. I equate it with a conservative judge deciding that social security is descriminatory, because it does not provide benefits to people in their 20s, and therefore is unconstitutional because the state has not shown compelling interest on why it is discriminating based on age. This would be equally bad, because the judge would be placing his own policy preference over the rule of law, and that can only eventually lead to anarchy.


Mike February 21, 2007 at 12:54 pm


I disagree regarding the initial burden. A strict scrutiny standard of review is not the correct standard of review merely because it is used as the standard for certain classes of discrimination.

I tend to disagree with the Constitutionality of the court’s trend of reasoning on many issues. The use of strict scrutiny is one example. I submit that the burden is actually on someone attempting to strike down a law as unconstitutional becasue it is the plaintiff with standing in any case bears that bears the burden of proof on the ultimate issue of the case.

As far as policy goes, I agree with Mary’s policy position while I think Sal is right on how courts should decide. It’s easy to comingle the policy grounds for or against a position with the jurisprudence regarding same. The blame for that is squarely on the shoulders of the Supreme Court. Their outcome oriented jurisprudence has caused people to fail to appreicate the distinction between the policy results of a decision with the reasoning behind it. The court’s job is to interpret what the laws and Const. say, not what they want it to. If they want to do the latter, they should run for office.

Although I think Mary is spot on re: the substance of the issue, I think your reasons are well thought out. Like Sal said, reasonable peole can disagree and the Constitution does not address this issue. When that is the case, the will of the people through their elected representatives should prevail.


snarky February 22, 2007 at 10:09 am

First of all, New Jersey is performing civil unions, not marriages. Civil unions in NJ, while they will have all of the same legal rights as marriages will not be given the term “marriage.” In other words, civil unions are “separate but equal.”

To answer your questions: (1) Absolutely it poses a full faith and credit clause issue, which is why the Defense of Marriage Act is suspect, constitutionally-speaking. (2) If the theory is to give gays the same rights as straight people, then we get the right to screw up marriage as much as the next person, and yes, that means getting a divorce (interestingly, the lesbians who brought the Massachusetts lawsuit that ended up in gay marriage in that state are now divorced). (3) The problem with your analogy is that you are comparing a situation in which each person can give their full consent to enter into a loving union (gay marriage) with a situation in which one person cannot give their full and informed consent (the 12 year old example). You have the same problem with the bestiality argument – you can’t get consent from a sheep. If the sheep could talk and it really wanted to marry the farmer, well then, we might have ourselves an argument :-)

One way around this issue, since the religious seem to be so icky with the term gay marriage is that the state only offers civil unions, leaving the churches to choose whom to marry. That way, the state is doing right by the constitution by not discriminating, and the churches can discriminate to their hearts content. Et voila.


Mike February 22, 2007 at 2:05 pm

Three points.

1. The Full Faith and Credit Clause empowers the Congress to pass legislation concerning many aspects of state actions, including effect. In addition, public acts at the time the clause was drafted did not include a marriages between people of the same sex so the clause could not have applied to something that did not exist. Even the Supreme Court has long recognized the public policy exception to FFC in marriage and other areas. DOMA is Constitutional.

2. 12 year old example not so far fetched when one Justice of the U.S. Supreme COurt is on record stating that 12 years old should be the age of consent.

3. I’m with you on the sheep example.


snarky February 22, 2007 at 5:55 pm

Well, actually, you could argue that DOMA is a violation of equal protection (or, if you must, substantive due process), because it only refers to “same sex” relationships. If DOMA simply said that no state had to recognize another state’s marriage, then it would be 100% constitutional (though you could potentially make some right to travel arguments there).

When was it that a S.Ct. justice said that a 12-year old was the age of consent? I would be somewhat shocked if it was this century, but over 100 years ago, it wouldn’t be that surprising. Sometimes, we forget in this country that a few hundred years ago, men in their late 30s were being married off to 14 and 16-year olds. Our conception of what age is appropriate for consent has changed much over the course of history. Regardless, I agree that simply arguing that it’s about “two people loving each other” is not the way to go (because then we could get into the whole polygamy argument). What it should be about is that state recognition of two gay people marrying will not have any detrimental effect on society and the state (whether a religion should recognize it is another, separate matter). In all of the case law and legislation in the gay marriage cases, there is not one viable reason for the state to preclude gays from marrying. There is no study that says that children are worse off, there is no necessity for procreation in today’s age of overpopulation (indeed, perhaps there should be a tax break for those who choose NOT to breed), and monogamous gays marrying does not unwind the social order in a way that polygamy would (because, when you think it, whole sections of law and society are based on two person marriage). Similarly, there are a lot of negative externalities for allowing a 12 year old to marry, and have carnal relations, with a 60-something year old dude. Besides, that couple can simply wait 6 years and then have at it. There is no opportunity, whatsoever, for gays to make a commitment to each other that’s recognized by the federal government. We might as well be the sheep. :-)


Mike February 22, 2007 at 6:16 pm

The above comments will tell you our thoughts on the policy and equal protection disagreements. I and those who agree with my position aren’t going to retype the same arguments, especially in the same thread. Sal, Mary, Phil and myself had a pretty good discussion on the legal and policy differences, to which you have added much. Those are policy differences however, and those must be left to the legislative process, not to the courts creating a right for something that did not exist at the time the Counst. was written.

I will retract my claim about Ruth Biddy and 12 year olds. Until now, I had never seen Prof. Volokh’s retraction. My bad. I would like to add that although she probably didn’t endorse the 12 year old age of consent, the rest of her writings are pretty frightening.


snarky February 22, 2007 at 9:44 pm

It would certainly be preferable for legislatures to recognize gay marriage, just as it would have been preferable for legislatures to desegregate. As a large policy matter, that is always true. On the small scale, it’s hard to walk up to a person and tell them that they just have to wait at city hall or at the back of a bus until a legislature decides to take up the issues of a relatively small minority. Courts serve a countermajoritarian function – they serve to make sure that legislatures don’t unconstitutionally encroach on the rights of the minority. There is certainly an argument that the 14th Amendment was only designed for desegregation, but that argument I think was lost 250 Supreme Court decisions ago.

As a general matter, courts rule all the time on matters that the Constitution did not, and could not contemplate. For example, I hardly think that the Framers intended the copyright statute to last the life of the author plus 90 years when they wrote that part of the Constitution, but technology has a way of getting ahead of us. Similarly, who would have thought at the time of Framing the Constitution that procreation would no longer be quite necessary? It seemed to make the highest sense to make marriage about procreation (as it did in ancient Greece, when homosexual relationships were valued more highly than marital heterosexual ones). Times change and the Constitution, which was probably never designed to last this long anyway, has a certain allowance for change. ‘Tis always better when the legislative body governs, but the Framers also knew that the legislature has certain majority rule problems (slavery, the denial of a woman’s right to vote, segregation, and the prosecution of war protestors being only a few examples).


Mike February 22, 2007 at 10:05 pm

But if the Constitution can change according to modern norms, it can change just as easily in a direction you wouldn’t want it go. If that is the case, the document protects nothing. The examples you use fail because the Const. doesn’t prohibit Copyright in that manner. It is silent, therefore it is up to our elected officials to legislate in a manner not consistent with the Constitution. No prohibition against 90 years, coupled with a grant of authority allows the law to which you refer.

As for unforeseen situations, if the Framers did not foresee a situation, then they did not legislate on the situation and the Consitution is therefore silent. Fortunately, the Framers foresaw not forseeing everything, hence the Amendment mechanism. That mechanism is not the rule of 5. Is it difficult to amend? Yes. Should it be? Yes. On balance the Constitution works, but it doesn’t when it can be amended in an impermissible manner.

On the substantive manner, there is no comparison between segregation and its effects: being denied the essentials of life, the right to vote and assemble, go to restaurants, etc. The personal acitivity in question is legal. It’s just does not have a government stamp of approval. That is a big difference with segregation.

I understand the policy rationale underlying your position. We think your position is wrong. You think our position is wrong. The Constitution is silent. Let the people decide. If you can change the Consitution for what you want it can also be changed to implement what you don’t. That wouldn’t be right either. Even stare decisis must yield to the Constitution if it is to have any meaning at all.


snarky February 22, 2007 at 11:18 pm

I think there is a fair argument that the Constitution’s text that copyright and patent are to be used only for “limited times” in conjunction with the legislative history surrounding that text indicate that the current copyright laws are in conflict with the Constitution, but that’s a separate argument.

You wouldn’t need to amend the Constitution because there is nothing in it that prohibits gay marriage. Unless you’re speaking of adding an amendment for privacy rights, which in all honesty, would be a good idea. I may be pro-choice, but I can’t argue that Roe v. Wade wasn’t a bad, bad constitutional decision.

There are a lot of comparisons that you don’t see between being gay and being black, including being prohibited from bars and restaurants, being discriminated against in employment, etc. In some ways, being black is a lot worse – institutional slavery, etc. In some ways, being gay is worse – after all, Fred Phelps doesn’t show up at black funerals with signs telling them their children are going to hell. But, what is exactly corollary is the current debate to Loving v. Virginia, which struck down miscegenation laws. In order to say that Loving v. Virginia doesn’t apply to gay marriage, you’d either have to say that Loving was wrongly decided or that the 14th Amendment should only apply to blacks (and not women, immigrants, or gays).

As for my legal position, it’s definitely debatable. What I don’t think is debatable is how horrendous it is for a person, a legislator or otherwise, to tell a person who loves another freely, without any issues of consent, destroying two-person social norms, or cross-species issues, that they can never have their relationship recognized by the state. That they can never inherit from their partner, never have automatic access to their hospital room, and never raise children together without having a litany of contracts that may or may not be recognized by any given state. Hell, I can’t make any more of a mockery out of marriage than Britney Spears has.

Anyway. Thanks for helping me jar loose some brain cells today. On another note, I miss Chaffee. I liked him.


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