Category archives: The Courts

A Tale of Two…Groups Which Voluntarily Relinquished their Freedom to Associate

by Travis Weber

September 3, 2014

Several days ago, the organizers of the New York City St. Patrick’s Day Parade announced they will permit a group composed of gay NBC employees to march in their annual event with a banner identifying themselves as gay. By now, we are used to such tidbits of news. But this is significant for other reasons.

Back in the 1990’s, the U.S. Supreme Court issued an important free speech ruling in a case called Hurley v. Gay, Lesbian, and Bisexual Group of Boston. In Hurley, the Court held that private associations communicating a message (through a parade, for instance) could not be forced to include unwanted groups in their parade, for this would compel the parade organizers to communicate a message against their will and make free speech and freedom of association protections meaningless. Such forced speech cannot be accomplished even in the name of eradicating discrimination, the Court held.

The Hurley case dealt with the Boston parade, but it settled almost the same issue for the NYC parade. Thus, the NYC parade organizers are not forced by law to do what they just decided to do – include the gay group and its banner. Nevertheless, they are doing exactly that. Thus, here we see an example of cultural pressure superseding legal requirements and causing a group to do what it isn’t required by law to do.

This same phenomenon occurred in the Boy Scouts of America v. Dale case and its aftermath. There, the Supreme Court held that the scouts were protected by the freedom to associate and did not have to permit homosexual scouts or scout masters. Despite being constitutionally protected, the Scouts reversed course in permitting gay scouts (while retaining the ban on gay scout masters). Alas, another high profile entity ceded to cultural pressure that which the law does not require.

Though these are only two situations, they are high profile matters which illustrate my point: it is highly important to address cultural trends over the long-term, and the thinking that underlies them, in addition to fighting legal battles and addressing matters through the legislature. These cases are monumental constitutional rulings, and many who still wish to speak freely can rely on them. But we can win great court battles and still lose the culture (as these cases illustrate) without properly addressing these trends at the roots. The “how” of addressing these trends is more difficult. One might start by studying how those advancing “anything goes” sexuality have been so successful over the past decades, and after properly understanding the context and our opponents’ messages, we can ascertain the best long-term language to communicate the importance of religious liberty and other issues. Only when we have acquired the proper ammunition for re-shaping our culture over the long-term, can we begin to use it.

Critics of Natural Marriage Remain in Search of Legal Rationale in 7th Circuit Arguments

by Peter Sprigg

August 28, 2014

I regard it as absurd, you say it’s self-evident.”

That caustic remark — one of many — from Judge Richard Posner, during the August 26 oral arguments regarding Indiana and Wisconsin marriage laws, perhaps encapsulated the gulf between those seeking to retain the natural definition of marriage as the union of a man and a woman and those seeking to redefine it for the purpose of affirming homosexual relationships.

Posner, a 75-year-old Reagan appointee, directed his quip at Indiana Solicitor General Thomas Fisher, who was defending his state’s law defining marriage as the union of one man and one woman before the 7th U.S. Circuit Court of Appeals in a set of cases under the heading Baskin v. Bogan. The court also heard arguments regarding Wisconsin’s marriage amendment in the case of Wolf v. Walker. District courts in both cases ruled the state marriage laws unconstitutional earlier this year. (Oral arguments in the cases can be heard online at the links above.)

Mr. Fisher was right. The case for defining marriage as the union of a man and a woman is (or at least should be) self-evident. It is self-evident that opposite-sex and same-sex sexual relationships are not the same — the former can result in natural procreation, and the latter never can. That fact, in turn, makes it self-evident that society has a greater interest in both encouraging and regulating opposite-sex relationships (which it does through the institution of marriage) than same-sex ones.

Nevertheless, the homosexual movement has succeeded in draping a curtain over these self-evident truths by misdirection involving not the rule, but exceptions — namely, opposite-sex couples who do not procreate and same-sex couples who do raise children. The specific point which Judge Posner considered “absurd” was the idea (posed by Posner himself) that a sterile, elderly opposite-sex couple could in any way be a “model” for a younger couple forming a family.

Posner dominated the arguments in both cases, offering by far the most questions and comments of any of the three judges — at least when defenders of natural marriage were attempting to make their case. While it is customary for judges in such settings to seize control of the discussion rather than simply allow the attorneys free rein, for most of the arguments, Posner was pushing a single point of his own, arguing rather than asking questions, and often not even allowing time for a single sentence in reply.

Posner’s single-minded obsession was the presumed plight of children who are being raised by same-sex couples. When the state argued that marriage addresses the uniquely heterosexual problem of accidental or unintended procreation, Posner asked, “Now, isn’t it true most unintended children are put up for adoption?” (Fisher answered, correctly, “I think many times single mothers care for them.”) Posner seemed to assume that most children raised by homosexuals are adopted from this pool of “unintended” children — painting a picture of homosexual couples heroically rescuing children abandoned by their heterosexual parents. (In reality, most children being raised by homosexuals or same-sex couples are the biological child of one partner, conceived in a previous heterosexual relationship and now forcibly separated from one biological parent by the other.) Posner’s own “self-evident” truth — apparently heavily influenced by a brief filed by the pro-homosexual Family Equality Council — was that such children would be helped by their same-sex “parents” having access to the legal benefits of marriage. His question was, who would be harmed by that (or, alternatively, who benefits from the current law which prevents such same-sex “parents” from marrying)?

There are good answers to this question — see, for example, my FRC booklet, The Top Ten Harms of Same-Sex “Marriage.” Unfortunately, attorneys for the states seemed unprepared — or reluctant — to offer examples of such potential harms, suggesting only that we cannot know with certainty what the consequences would be. That aside, however, the kind of cost-benefit analysis Judge Posner was proposing is a fundamentally legislative task — not a judicial one. Whether costs outweigh benefits may help determine if a particular policy is wise — but it is not sufficient to determine if a policy is constitutional, or should be struck down by the courts.

Another judge in the three-judge panel, 57-year-old David Hamilton (appointed to a District Court position by Clinton and to the Appeals Court by Obama), was also skeptical of the state’s arguments. Hamilton, however, was far more measured in tone than Posner — and more balanced, asking challenging questions of the plaintiffs’ attorneys as well. Having warned each attorney that while they want to emphasize their strong points, the judges want to probe their weak ones, Hamilton pressed those backing the redefinition of marriage about one of Fisher’s arguments for Indiana — namely, “The position put forth by the plaintiffs in this case admit[s] of no limiting principle.”

In other words, as many have pointed out, the arguments put forth in support of same-sex “marriage” — such as “equality” and the freedom to marry whom you choose — could be equally applied to other types of unions, including polygamous or incestuous ones. That challenge was also pressed by the third judge, 65-year-old Ann Claire Williams (appointed by Reagan to a District Court and by Clinton to the Appeals Court). Even Posner, by far the most skeptical of “traditional” marriage, piled on in the polygamy discussion, asking, “How many people do you have a fundamental right to marry at one time? Just one? … I don’t understand — where do you draw the line?”

Attorneys for the plaintiffs mostly avoided the question or struggled to find an answer, with Ken Falk of the American Civil Liberties Union (ACLU) of Indiana falling back on his own form of “self-evident” truth, referring to “my mathematical diagram of marriage” in declaring that “if you have two people in it, regardless of their sexes … it’s going to look like marriage. If you have three or four people, it’s not going to look like marriage.” (Of course, for most of history, if it didn’t have a man and a woman, it didn’t “look like marriage.”)

Another Achilles’ heel for the marriage redefinition movement, despite a string of federal court victories since last year’s Supreme Court decision requiring federal recognition of same-sex unions that are legally recognized by states, is that no consensus has emerged about the legal or constitutional reasoning for declaring a “right” to same-sex “marriage.” The Supreme Court has said that the “liberty” interests protected by the “due process” clause of the 14th Amendment include a “fundamental right to marry,” which some courts have asserted also encompasses the right to marry a person of the same sex. However, the 7th Circuit judges seemed skeptical of that approach, with Hamilton saying, “Finding a federal right to marry that is undefined is a pretty problematic concept for substantive due process.” Even Posner was skeptical on this point, saying, “I think when you talk about fundamental rights … you get into a morass, right?”

Judge Hamilton asserted that “you’ve got a much stronger equal protection theory.” The problem for those seeking to overturn the marriage laws under “equal protection” is that most laws are presumed constitutional under the lenient “rational basis” test, which requires only that there be some conceivable “rational basis” for the classification in the law. Hamilton, therefore, raised the possibility that the differential treatment of same-sex couples might trigger “heightened scrutiny,” which places a heavier burden of proof upon the state to defend the law. “If we look strictly at the text,” Hamilton said, “what the statute does is classify based on sex… . So that would seem to point us in the direction of heightened scrutiny.”

Most courts, however, have viewed the “classification” as being based on sexual orientation rather than sex, and even attorney James Esseks of the ACLU, arguing in the Wisconsin case, admitted that 7th Circuit precedent does not apply heightened scrutiny for sexual orientation. (In reality, the “classification” in the marriage laws is based on “gender complementarity,” which is different from either of the other theories.) On the “heightened scrutiny” theory, Posner parted ways with Hamilton, declaring, “I don’t get any help from phrases like heightened scrutiny.” Posner, perhaps oblivious to what he was saying, even touched the third rail of debates over homosexuality by appearing to compare homosexuals to pedophiles and treat pedophilia as a “sexual orientation”:

If you were dealing with pedophiles, you wouldn’t say … any regulation of pedophiles was subject to heightened scrutiny because it’s an innate sexual orientation… . We don’t think of those terms when we’re dealing with all sorts of sexual compulsions, right? We just say, “This is obviously very harmful to other people.” So it’s illegal, even though these people can’t help it in many cases.

One thing that was disappointing in the oral arguments (in addition to Judge Posner’s vitriolic hostility to natural marriage) was the relatively weak defense offered by attorneys for the states. By focusing narrowly on the issue of accidental procreation (the one public concern that is absolutely unique to opposite-sex relationships), Indiana’s Fisher omitted broader state interests in encouraging procreation in general, and in encouraging the raising of children by both their mother and father. (Indeed, one of Judge Hamilton’s first statements to him was, “I would think that the state’s interest is equal regardless of whether the children are intended or unintended.”).

Assistant Attorney General Timothy Samuelson’s defense of Wisconsin’s law was even more vague, as he drew mockery from the judges for his reliance on “tradition” and “experience” as justifications for the one-man-one-woman definition. He was given little opportunity to develop a more technical argument he proposed regarding the difference between “negative” rights (such as protection from employment discrimination) and “positive” rights (such as access to the legal benefits of marriage). At one point, he said, “We defer to Mr. Fisher’s arguments [in the Indiana case] … [M]arriage provides a mechanism for tying unplanned children to their biological parents.” At another, he referred the judges to Supreme Court Justice Samuel Alito’s dissent in last year’s case striking down the federal definition of marriage (Alito had cited the increase in divorce rates following the adoption of no-fault divorce as an example of how changes in marriage laws can lead to unforeseen negative consequences).

In neither case did the state’s attorneys make assertions as to actual harms that might result from redefining marriage — forcing Judge Hamilton to raise the issue by mentioning friend-of-the-court briefs by pro-family professor Helen Alvare (who argues, “Redefining marriage in a way that de-links sex, marriage and children threatens to harm the most vulnerable Americans and exacerbate the ‘marriage gap’ responsible for increasing levels of social inequality in America”) and by authors Robert George, Sherif Girgis, and Ryan Anderson (who argue, “Redefining marriage would not extend its stabilizing norms, but undermine them across society.”) Fisher merely affirmed the state’s position is that they “can win without making that argument.”

Although all three judges seemed skeptical of the states codifying only natural marriage between a man and a woman, it remains unclear what argument will win in the 7th Circuit, given the lack of consensus on any constitutional rationale for striking those laws down, and the lack of a “limiting principle” to be placed upon such a redefinition of marriage.

Is There a Federal Constitutional “Right” to Same-Sex “Marriage?” The Supreme Court Answered that Question Already — in 1972

by Peter Sprigg

August 5, 2014

Have you ever heard of the 1972 U.S. Supreme Court decision in a case called Baker v. Nelson?

If so, you are probably a lawyer, or (like me) a person who regularly reads briefs and court decisions on the issue of redefining “marriage” to include homosexual couples.

If you have never heard of this case, you can be forgiven — even if you regularly read news stories about the movement for the same-sex redefinition of marriage.

However, Baker v. Nelson is an important precedent on this issue. It was the very first case in which anyone ever asserted that the Constitution of the United States protects the right to legally “marry” a person of the same sex. In Baker, a male couple sued a county clerk in Minnesota for denying them a marriage license in May 1970. The case made its way to the Supreme Court of Minnesota — which, on October 15, 1971, issued a ruling declaring that the state’s marriage law did not permit a same-sex couple to “marry,” and that it “does not offend … the United States Constitution.”

The case was appealed directly to the U.S. Supreme Court — which at the time, was required to accept all such appeals (this is no longer true). The Supreme Court issued its ruling on the case on October 10, 1972, declaring (in full): “Appeal from Sup. Ct. Minn. dismissed for want of substantial federal question.”

The dismissal of the appeal “for want of [a] substantial federal question” meant that the U.S. Supreme Court allowed the Minnesota Supreme Court’s decision against same-sex “marriage” to stand.

Hundreds of times a year, the Supreme Court allows lower court decisions to stand as the final ruling in that particular case when it “denies a writ of certiorari” (or “denies cert” for short). Such denials do not imply that the Supreme Court necessarily agrees with the decision or its reasoning, and they do not set binding precedent for future cases.

However, a “dismissal for want of a substantial federal question” is not just a refusal to hear the case, the way that a denial of a writ of certiorari is. Such a summary dismissal is considered to be both a decision on the merits and a binding precedent. The Supreme Court explained this in a 1975 decision, Hicks v. Miranda. I have omitted citations and quotation marks in the following, but the Court affirmed this view of summary dismissals:

Votes to affirm summarily, and to dismiss for want of a substantial federal question, it hardly needs comment, are votes on the merits of a case … . [U]nless and until the Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that, if the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise … . [T]he lower courts are bound by summary decisions by this Court until such time as the Court informs [them] that [they] are not.”

Unfortunately, the “inferior federal courts” have not been acknowledging the binding precedent of Baker — at least, not since the Supreme Court’s decision in June 2013 (United States v. Windsor) striking down the one-man-one-woman definition of marriage in the federal Defense of Marriage Act (DOMA). Judges in the recent federal cases have asserted that “doctrinal developments” (both with regard to the treatment of sexual orientation and of marriage under the law and Supreme Court precedent) have made Baker no longer binding.

Although the Windsor case is widely cited as the decisive case tipping the balance in favor of a federal constitutional right to same-sex “marriage,” it actually addressed a much narrower issue. DOMA effectively denied federal recognition even to same-sex “marriages” that were legal in the eyes of a State, and it was this “unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage” that was deemed offensive to the Constitution. On the other hand, state laws defining marriage as the union of one man and one woman are not an “unusual deviation from the usual tradition” — they are the usual tradition.

Justice Kennedy’s majority opinion made clear that Windsor was about “persons who are joined in same-sex marriages made lawful by the State” (emphasis added). The penultimate sentence of the opinion states specifically, “This opinion and its holding are confined to those lawful marriages.”

Implicit in this caveat is that the “opinion and its holding” do not apply to same-sex relationships that have not been deemed to be legal “marriages” by any State. As Hicks v. Miranda said, “[T]he lower courts are bound by summary decisions by this Court until such time as the Court informs [them] that [they] are not.” This would suggest that the summary decision in Baker remains binding (at least on the lower courts), since even in Windsor, the Supreme Court has never “informed [them] that [it] is not.”

Some people may argue that the absence of a written opinion explaining its reasoning limits the precedential value of Baker. However, while the U.S. Supreme Court dismissed the case in a scant twelve words, the same is not true of the Minnesota Supreme Court. They issued a written opinion over a thousand words long, succinctly but clearly explaining the weakness of the plaintiffs’ case.

Although the written opinion was from a state court, the plaintiffs’ primary claims (and the Minnesota Supreme Court’s opinion) dealt primarily with federal constitutional issues. The assertions made by the plaintiffs — relating to the due process and equal protection clauses of the Fourteenth Amendment — are virtually the same as those being made in the cases working their way through the federal courts today.

Therefore, it is worth reading the Minnesota Supreme Court decision in Baker v. Nelson. An honest judge with integrity could just as easily release it again today.

The version below is edited for clarity by removing legal citations (except the one for Baker itself) and by turning all footnotes into end notes, as well as by adding limited explanatory material. The full text of the decision can be found various places online, including here.

Richard John BAKER, et al., Appellants,

v.

Gerald NELSON, Clerk of Hennepin County District Court, Respondent

No. 43009

Supreme Court of Minnesota,

Oct. 15, 1971

191 N.W.2d 185; 291 Minn. 310

OPINION

[C. DONALD] PETERSON, Justice. [for a unanimous 7-judge court]

The questions for decision are whether a marriage of two persons of the same sex is authorized by state statutes and, if not, whether state authorization is constitutionally compelled.

Petitioners, Richard John Baker and James Michael McConnell, both adult male persons, made application to respondent, Gerald R. Nelson, clerk of Hennepin County District Court, for a marriage license, pursuant to [Minnesota’s marriage law]. Respondent declined to issue the license on the sole ground that petitioners were of the same sex, it being undisputed that there were otherwise no statutory impediments to a heterosexual marriage by either petitioner.

The trial court, quashing an alternative writ of mandamus, ruled that respondent was not required to issue a marriage license to petitioners and specifically directed that a marriage license not be issued to them. This appeal is from those orders. We affirm.

1. Petitioners contend, first, that the absence of an express statutory prohibition against same-sex marriages evinces a legislative intent to authorize such marriages. We think, however, that a sensible reading of the statute discloses a contrary intent.

[The Minnesota statute] which governs “marriage,” employs that term as one of common usage, meaning the state of union between persons of the opposite sex.[1] It is unrealistic to think that the original draftsmen of our marriage statutes, which date from territorial days, would have used the term in any different sense. The term is of contemporary significance as well, for the present statute is replete with words of heterosexual import such as “husband and wife” and “bride and groom” (the latter words inserted by [another statute]).

We hold, therefore, that [the Minnesota marriage law] does not authorize marriage between persons of the same sex and that such marriages are accordingly prohibited.

2. Petitioners contend, second, that [the Minnesota marriage law], so interpreted, is unconstitutional. There is a dual aspect to this contention: The prohibition of a same-sex marriage denies petitioners a fundamental right guaranteed by the Ninth Amendment to the United States Constitution, arguably made applicable to the states by the Fourteenth Amendment, and petitioners are deprived of liberty and property without due process and are denied the equal protection of the laws, both guaranteed by the Fourteenth Amendment.[2]

These constitutional challenges have in common the assertion that the right to marry without regard to the sex of the parties is a fundamental right of all persons and that restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory. We are not independently persuaded by these contentions and do not find support for them in any decisions of the United States Supreme Court

The institution of marriage as a union man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis. Skinner v. Oklahoma ex rel. Williamson, [U.S. Supreme Court] (1942), which invalidated Oklahoma’s Habitual Criminal Sterilization Act on equal protection grounds, stated in part: “Marriage and procreation are fundamental to the very existence and survival of the race.” This historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend. The due process clause of the Fourteenth Amendment is not a charter for restructuring it by judicial legislation.

Griswold v. Connecticut, [U.S. Supreme Court] (1965), upon which petitioners rely, does not support a contrary conclusion. A Connecticut criminal statute prohibiting the use of contraceptives by married couples was held invalid, as violating the due process clause of the Fourteenth Amendment. The basic premise of that decision, however, was that the state, having authorized marriage, was without power to intrude upon the right of privacy inherent in the marital relationship. Mr. Justice Douglas, author of the majority opinion, wrote that this criminal statute “operates directly on an intimate relation of husband and wife,” and that the very idea of its enforcement by police search of “the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives … is repulsive to the notions of privacy surrounding the marriage relationship.” In a separate opinion for three justices, Mr. Justice Goldberg similarly abhorred this state disruption of “the traditional relation of the family—a relation as old and as fundamental as our entire civilization.”[3]

The equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state’s classification of persons authorized to marry. There is no irrational or invidious discrimination. Petitioners note that the state does not impose upon heterosexual married couples a condition that they have a proved capacity or declared willingness to procreate, posing a rhetorical demand that this court must read such condition into the statute if same-sex marriages are to be prohibited. Even assuming that such a condition would be neither unrealistic nor offensive under the Griswold rationale, the classification is no more than theoretically imperfect. We are reminded, however, that “abstract symmetry” is not demanded by the Fourteenth Amendment.[4]

Loving v. Virginia, [U.S. Supreme Court] (1967), upon which petitioners additionally rely, does not militate against this conclusion. Virginia’s antimiscegenation statute, prohibiting interracial marriages, was invalidated solely on the grounds of its patent racial discrimination. As Mr. Chief Justice Warren wrote for the court:

Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival. Skinner v. Oklahoma, [U.S. Supreme Court] (1942). See also Maynard v. Hill, [U.S. Supreme Court] (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations.”[5]

Loving does indicate that not all state restrictions upon the right to marry are beyond reach of the Fourteenth Amendment. But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.

We hold, therefore, that [the Minnesota marriage law] does not offend the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution.

Affirmed.



[1] Webster’s Third New International Dictionary (1966) p. 1384 gives this primary meaning to marriage: “1 a: the state of being united to a person of the opposite sex as husband or wife.”

Black, Law Dictionary (4 ed.) p. 1123 states this definition: “Marriage *** is the civil status, condition, or relation of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex.”

[2] We dismiss without discussion petitioners’ additional contentions that the statute contravenes the First Amendment and Eighth Amendment of the United States Constitution.

[3] The difference between the majority opinion of Mr. Justice Douglas and the concurring opinion of Mr. Justice Goldberg was that the latter wrote extensively concerning this right of marital privacy as one preserved to the individual by the Ninth Amendment. He stopped short, however, of an implication that the Ninth Amendment was made applicable against the states by the Fourteenth Amendment.

[4] See, Patsone V. Pennsylvania, [U.S. Supreme Court] (1914). As stated in Tigner v.Texas, [U.S. Supreme Court] (1940), and reiterated in Skinner v. Oklahoma ex rel. Williamson, [U.S. Supreme Court], “[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.”

[5] See, also, McLaughlin V. Florida, [U.S. Supreme Court] (1964), in which the United States Supreme Court, for precisely the same reason of classification based only upon race, struck down a Florida criminal statute which proscribed and punished habitual cohabitation only if one of an unmarried couple was white and the other black.

When Unborn Children are Considered Victims of Homicide

by Arina Grossu

July 22, 2014

There are a number of disturbing facts about a homicide story coming out of Michigan, not the least the gory acts of violence surrounding the deaths of a man and a pregnant woman. The story leaves a lot of disturbing questions unanswered about the nature of the encounter that resulted in this tragedy.

It is interesting to note that the reporting ABC affiliate recently called it a “triple homicide.” “Why triple?” you may ask. Michigan law (Mich. Comp. Laws Ann. § 750.322) defines the willful killing of an unborn child by any injury to the mother of the child as manslaughter. It is one of 38 statesto have fetal homicide laws. The rights of this unborn child as a person are accepted and defended.

In a previous article, I outlined the logical inconsistency of abortion laws in light of fetal homicide laws. What’s the difference between this unborn child whose life was taken from him and the 3,000 children who die every day because they are aborted? The only difference is not their level of development or any other factor, but rather the consent of the mother.

This dark and senseless act which claimed the lives of three people and the suicide of the perpetrator not only underlines the present culture of death, but the logical inconsistency in not defining the killing of unborn children as homicide in all states and under all circumstances.

Democratic Bill to Override Hobby Lobby Ruling Fails

by Arina Grossu

July 16, 2014

A bill introduced by Sen. Patty Murray (D-WA) and Sen. Mark Udall (D-CO), the “Protect Women’s Health From Corporate Interference Act” to override the U.S. Supreme Court’s recent Hobby Lobby ruling failed to get cloture in the Senate today. The Supreme Court ruled in Hobby Lobby v. Burwell that family business owners do not have to violate their consciences in order to earn a living by providing drugs and services to their employees in their healthcare plan, to which they morally object.

This bill seeks to overturn what the Supreme Court ruled earlier this month, and would force family business owners to provide their employees in their healthcare plan drugs and devices that have the potential to kill an unborn child even if they may have moral objections, and despite the protections afforded to them by the Religious Freedom Restoration Act (RFRA). It failed to get the sixty votes that were needed to move the bill forward, coming up short at 56-43 votes. We are thankful to the Senators who voted against cloture on this bill, thus protecting the religious freedom of all family businesses.

Slandering the Supremes

by Travis Weber

July 3, 2014

Justice Ruth Bader Ginsburg’s dissenting opinion in the Supreme Court’s recent decision in Burwell v. Hobby Lobby is, in my view, clearly erroneous. With my colleagues at Family Research Council, I applaud the majority opinion as fully consistent with the requirements of religious liberty and the needs of women.

So, how does one get away with treating Supreme Court justices in a manner which would get any child reprimanded in elementary school? You couch your insult with humor, and engage on a politically correct topic.

The biggest question surrounding the recent song by Song A Day’s Jonathan Mann putting Justice Ginsburg’s dissent in the Hobby Lobby case to music — and in which he refers to the justices in the majority as “slut-shaming geezers” — is why no one is bothered enough by such slandering and disrespecting of Supreme Court justices to say anything. But it is what it is: Shameful.

What’s the point of these antics? Who knows … . Perhaps it’s because the writer doesn’t care to read what the decision says. Perhaps he thinks it’s more fun to mock its authors. Perhaps he does understand the decision and realizes he can’t attack the reasoning so, in a cowardly move, he attacks the authors’ integrity. Perhaps he does understand the decision but realizes he won’t acquire fame with a reasoned response so he adds incendiary words to his song. Or, perhaps, he knows he will only get people to listen to him if he adds shock value — thus he mocks justices and a decision which actually has inherent meaning he’s not bothering to understand.

There is nothing wrong with putting Justice Ginsburg’s dissent to music. The interaction of the Court with the public, although generally that of a more formal nature, can bear the casual manifestation of a song. In fact, some have shown the ability to tastefully depict the clash of ideas at work in Supreme Court rulings in formats including even opera. But what is harmful to the Court is a cultural attitude that dismisses the Court’s work by mere insults — without any basis in truth or basic comprehension of the legal principles at issue. Jonathan Mann makes his living as an entertainer, an entertainer who touts his ability to take “large amounts of complicated ideas and very quickly [transform] them into a hilarious, hummable and memorable song.” Here, he’s not bothered to even acknowledge the “complicated ideas” under question — he’s simply resorted to name calling. The Court and our country can bear lighthearted whimsy. What they can’t bear are baseless insults like this — insults, moreover, which aren’t even true.

Need we call to mind that the only thing the families behind Hobby Lobby and Conestoga ever objected to was 4 out of 20 methods of birth control they were being forced to provide, on the belief these 4 killed little babies in the womb? Yet according to Jonathan Mann, many “sluts” have been “shamed” when the justices ruled that women still must receive these 4 types of birth control. Wait, what? Yes, the justices ruled women still are to receive all their contraceptives — the government just has to provide them in a way that does not force employers with religious objections to violate their consciences by playing a part in what they view to be evil. Yes, of course, it is very obvious to see that many “sluts” were “shamed” with this ruling … .

Maybe one day if a justice (it would have to be one of the older male justices) was caught outside of the court rebuking a young woman for sleeping around too much — maybe then, he could accurately be called a “slut shaming geezer.” Even then, I’m not sure such antics would be called for. But they are hardly called for when any reading of the opinion does not justify such antagonism.

There are plenty of high court opinions I disagree with, but none over which I would attack the justices’ character. I can’t remember the last time someone mocked a liberal Supreme Court justice in this way. Yet if they did, it would be equally uncalled-for.

In the end, the name-calling (inaccurate at that) is symptomatic of a larger issue — the inability of many Americans to accurately engage on public issues and play a role in our experiment in democracy. As public engagement and living side by side in toleration of different views gives way to name-calling aimed at conformity to what is politically correct, the gears of our nation will grind to a halt. And we will all suffer for it.

Attacks and slander like that of Jonathan Mann may or may not be legal. But it is certainly shameful. People of integrity on all sides of these issues need to call this out when they see it.

We would call upon all, including those opposed to the Court’s ruling in Hobby Lobby, to denounce such baseless attacks. It would be appropriate for Justice Ginsburg to make clear she does not support such sentiments. All Americans, though they reasonably disagree on issues such as the Court faced here, should be united in opposition to Jonathan Mann’s slanderous words.

Hobby Lobby: A clear win for RFRA, and a cautious rebuke of the HHS mandate

by Travis Weber

July 1, 2014

In Burwell v. Hobby Lobby Stores, the Supreme Court held in a 5-4 decision that closely held for-profit corporations can bring claims under the Religious Freedom Restoration Act (“RFRA”), and that the HHS mandate violated these corporations’ rights under RFRA by requiring them to provide contraceptives which they believe end human life. The Court faced two issues: (1) whether for-profit corporations are “persons” for purposes of RFRA protection, and if so, (2) whether the HHS mandate violated RFRA in this case. It decided the first clearly, and the second more cautiously.

RFRA protects corporations

Holding

RFRA protects a “person’s” religious exercise. The question is whether Hobby Lobby and Conestoga are “persons.” The Court held that they are—specifically that closely held for-profit corporations like those in this case clearly fall within the meaning of “person” in RFRA.

Analysis

The Court began by noting the broad protections Congress set in place by passing RFRA, which would indicate that closely held businesses are covered. In addition, the Dictionary Act indicates that for profit corporations are covered by RFRA, and there is no context surrounding RFRA to indicate otherwise (the Court rejected the government’s argument that RFRA merely codified pre-Smith case-law). The government had conceded that a nonprofit corporation can be a person for purposes of RFRA. Thus, there is no logical reason to conclude that for profit corporations are not protected by RFRA simply because they make a profit. As the majority opinion notes: “HHS would put these merchants to a difficult choice: either give up the right to seek judicial protection of their religious liberty or forgo the benefits, available to their competitors, of operating as corporations.” Majority op., at 17. Of course, the government has to recognize that individuals (sole proprietors) can exercise religion even though they make a profit. The government thus argued that these two elements—profit making and corporate form—added together are reason to deny Hobby Lobby and Conestoga RFRA protection. Yet the government ultimately had no sufficient basis for its argument, and the Court squarely rejected the government’s position and held that Hobby Lobby and Conestoga can bring claims under RFRA.

*NOTEResult is limited to closely held corporations: The Court expressly noted its ruling applied to closely-held for profit corporations like those in these cases. The Court did not decide clearly one way or the other whether publicly traded companies and other corporate forms are protected. Those determinations would have to be made in other cases. While this may be viewed as a “narrow” win, the Court regularly does not decide issues which are not before it, and the issue of a publicly traded company’s coverage under RFRA was not before it. Therefore, the Court was simply conducting its analysis as is typical in these cases, and the fact that it so clearly held that the businesses in this case are covered is a strong holding notwithstanding the Court’s statements limiting the holding to closely held companies. The issue of whether companies like Hobby Lobby are covered by RFRA was previously subject to dispute, but now it is settled. This significantly broadens RFRA’s reach.

RFRA claims in this case succeed

Holding

RFRA provides that the government may only substantially burden a person’s exercise of religion when the government’s action or regulation (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. The challengers had claimed that the HHS mandate violates RFRA by burdening their beliefs by requiring them to provide drugs they believe end life, all while not serving a compelling government interest and not being the least restrictive means. The government must make a showing on these elements, or the RFRA claim succeeds. The Court skipped the first question, and easily decided the second against the government because of the existence of less restrictive means. This grants the plaintiffs a win on their RFRA claims, but the Court arrived at its conclusion easily. If the legal trail had been more difficult to blaze, Hobby Lobby would not have been as assured of a win.

Analysis – religious beliefs, their sincerity, and whether they were burdened

Normally a court would determine if the religious beliefs at issue are sincere beliefs (courts never get into whether the exercise is actually in accord with the religion – that would meddle in the internal workings of religion), but the government did not dispute the plaintiffs’ sincerity in this case. Thus the first question for the court is whether there is a substantial burden to the plaintiffs’ exercise of religion. The Court looked at the fines which would be imposed and concluded the HHS mandate imposed a substantial burden, while dismissing the idea that there is no burden because the penalty is conceivably less than providing coverage for employees. The Court also rejected the government’s argument that the religious burden and HHS mandate were too attenuated, noting that the government is not to be in the business of assessing the religious belief, but only determining if it is sincerely held.

Analysis – compelling interest

The Court then assumed that the government may have a compelling interest in providing all the methods of birth control at issue—the Court simply didn’t decide whether there was a compelling government interest in this case. But the Court didn’t ultimately have to decide this issue, because it held that the government did not advance its regulation through the least restrictive means.

Analysis – least restrictive means

The Court continued by stating that even assuming the government has a compelling interest in advancing its HHS mandate, the government has not accomplished this goal through the least restrictive means. The Court rejected the argument that the ACA was akin to a scheme like social security in which it was very important for everyone to participate—the government did not have to compel employers to provide the drugs in order to advance its interests. Here, for instance, the government could directly provide the drugs in order to accomplish its goal through a less restrictive means. The Court also looked at the “accommodation” which has already been provided to other non-profits, and offered that as an example of something the government could have done to provide birth control coverage, while burdening the companies to a lesser degree. Because the government could have done this but did not, the challengers win and the HHS mandate as currently stands violates RFRA.

*NOTEApplication to other scenarios: The Court also said its ruling pertained to contraception and the ACA, and did not necessarily apply to corporate religious objections to other issues like vaccines or taxes. Other considerations on the part of the government, such as controlling the spread of infectious diseases, would affect these determinations in ways different from the considerations pertaining to the HHS mandate. The Court does not give much of an indication on how it would rule on a RFRA claim objecting to a law requiring nondiscrimination on the basis of sexual orientation. It did say religious objections regarding hiring decisions based on race would not succeed, but the race issue is pretty well settled, and such an example does not really help predict how the court would rule on the sexual orientation issue. Many, including the dissent, will decry the majority opinion as sweeping (Justice Kennedy wrote a separate concurrence just to respond to this claim). And yet contrary to this doom and gloom about all manner of religious objections to come, the court recognized RFRA claims would continue to be assessed on a case by case basis as they arise. Majority op., at 46. The “sky is falling” response is not credible in light of the Court’s opinion.

**NOTEEffect on non-profit cases: The Court specifically discussed the “accommodation” as a possible less restrictive means for the government to use, and suggested it would not violate RFRA if used in the instant case—it notes that if the government provided for an “accommodation” similar to that which it provided non-profit entities, the impact on female employees of Hobby Lobby would be zero (thus this satisfies the less restrictive means requirement) Majority op., at 3-4.Justice Alito points out “[t]he principal dissent identifies no reason why this accommodation would fail to protect the asserted needs of women as effectively as the contraceptive mandate, and there is none.” Majority op., at 44. Yet the Court expressly said it was not deciding the “non-profit cases” and would have to decide those separately. In addition, those entities will be treated differently under the law, and involve different legal considerations and claims. It remains an open question whether the “accommodation” violates RFRA in the non-profit challenges, even though it appears such an accommodation would satisfy the Court in Hobby Lobby.

Concurrence

Justice Kennedy concurred in the judgment, and authored a concurrence to respond to the dissent’s characterization of the majority’s holding as very broad and sweeping. (Justice Kennedy appears sensitive enough on that point to want to defend himself).

While the Court skipped over the question of whether a compelling government interest in the HHS mandate exists, Justice Kennedy does seem sensitive about noting he is not deciding that question here: “[i]t is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.” What explains this statement? It is possible that Justice Alito (and maybe one or more of the other justices in the majority) would have been willing to find there is no compelling government interest in the HHS mandate, but Justice Kennedy was unwilling to do so. Yet Justice Kennedy was willing to find the least restrictive means requirement unsatisfied in this case, which is enough to find for the plaintiffs. So the majority avoided the compelling interest question, and Justice Kennedy confirms this point. Reading into the opinion slightly more, the “cautious win” for Hobby Lobby on this point could be due to Justice Kennedy.

On a more positive note, Justice Kennedy appears to support a slightly broader view of freedom of religion, noting that religious exercise includes “the right to express those beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community.” He obviously agrees that the Greens and Hahns can exercise religion in the face of contrary arguments from the government that non-profits exercise religion while for-profits do not: “RFRA is inconsistent with the insistence of an agency such as HHS on distinguishing between different religious believers—burdening one while accommodating the other—when it may treat both equally by offering both of them the same accommodation.” Justice Kennedy also cited Justice Kagan’s dissent from the Town of Greece in a statement supporting the diversity of religious exercise in the United States today—while this is good to see, it must be remembered that Justice Kennedy is considering this case easily decided because the existing “accommodation” is a clearly identifiable less restrictive means to advance the HHS mandate. Cases with other issues may not have easily identifiable less restrictive means. In addition, Justice Kennedy will also likely approach cases involving other rights differently.

Dissents

Justice Ginsburg authored the primary dissent, and was joined by Justice Sotomayor in deciding that the companies were not covered by RFRA, and by Justices Sotomayor, Breyer, and Kagan in deciding that the companies’ claims would fail anyway because they are not substantially burdened, the government has a compelling interest, and has satisfied the least restrictive means requirement. Justices Breyer and Kagan wrote a separate but short dissent in which they specifically stated they would not decide whether “for-profit corporations or their owners” may bring RFRA claims, perhaps recognizing the difficulty of the government’s argument on this point. Akin to the way the majority skipped the question of compelling interest and still ruled for the challengers, Justices Breyer and Kagan skipped the question of corporate coverage and held that even if the companies were covered by RFRA, their claims against the HHS mandate would fail. Therefore, notably, there are still seven members of the Court who recognize (through either affirmatively deciding or explicitly refusing to decide the question) the idea that you do not give up religious liberty when you engage in profit making activity.

Take away and future implications

This is a win. However, it is a narrow win. The ruling clearly applies to other closely held for profit entities objecting on RFRA grounds to any drugs required by the HHS mandate. It’s likely to apply to most of the potential fines for noncompliance, though Hobby Lobby’s may be larger than others’ fines. As long as the sincerity of the religious objection is not disputed, and the fines are relatively large, other cases featuring for profit businesses bringing RFRA claims will likely be decided along the same grounds as this opinion.

It is less clear as each of these aspects changes. If the company is another type, the result becomes less clear. If the objection is to a practice in which the government has an easier time showing a compelling interest, like tax collection, the challenge becomes more difficult. The Court offered the example of eradicating racial discrimination as a compelling government interest. We do not know what it will do with sexual orientation discrimination. The dissent did, however, offer Elane Photography as hypothetical future claim which the Court will have to decide. We can assume the four dissenting justices would have a problem with Elane Photography’s claim. Nothing else in the opinion provided a clue about how it would be decided, however.

What is going on with this ruling?

Why do the justices break down in the opinions as they do? This decision is ultimately about suppressing the exercise of religion in favor of a government scheme. This is why the government tried to force for profits to pay in this case. And this is why the accommodation is unsatisfactory for the Administration. Four justices ultimately see the ACA and HHS mandate as so important and such an advance of “rights” that they will subject these businesses to it. Justice Ginsburg uses dismissive language and asks whether RFRA would allow claims “of this ilk” just after mentioning Elane Photography and other cases regarding Christian views on sexuality—which shows an animus on her part toward Christian views associated with traditional values. She also says “[o]ne can only wonder why” the Court ignores (in her view) the reasoning underlying Title VII exemptions (limiting religious activity to nonprofit “religious corporations”) in its understanding of this case. This sharply worded question implies that the majority is deciding these cases according to the justices’ religious beliefs. She and the other liberal justices are likely to be increasingly aware and responsive to this perception. For many years the liberal justices were the ones siding with the free exercise claimant challenging government action. Now the conservative justices are. Admittedly, I think this case would be a closer call for some of the justices if they were deciding individuals’ RFRA claims (as opposed to those of corporations). But we do not have the benefit of that analysis.

Proper framing of this opinion:

Let us not forget that today’s ruling featured a showdown between individual religious liberty rights (constitutional rights, as embodied in RFRA) and an overly intrusive government scheme. Americans’ objections to such schemes, and the ability to seek judicial redress for their objections, lie at the core of American constitutional and civil rights jurisprudence. Americans’ consciences must not be sacrificed on the altar of legislative (or agency) action merely because they also happen to want to make a profit.

Whether corporations engaged in social responsibility initiatives, voluntary community initiatives, or religious practices, corporations have always done much more than just “make a profit.” Whether the case features a Jewish butcher, a Muslim financier, or the Green family’s decision to see their religious beliefs reflected in their business practices, corporations have always served to reflect the beliefs of the human beings behind them. The Court’s ruling today simply recognizes this principle.

In the middle of its opinion, the Court rhetorically asks: “Is there any reason to think that the Congress that enacted such sweeping protection put small-business owners to the choice that HHS sug­gests? Majority op., at 17. No, there is not. America has been built on the backs of small-business owning families like the Greens and the Hahns. Many of them are merely seeking to live free from government intrusion in accord with their beliefs without being forced to violate their consciences. That is not too much to ask. Thankfully the Court agreed.

Burwell v. Hobby Lobby: The Good, the Bad, and the Ugly.

by James Wheeler

June 30, 2014

The decision of the Supreme Court today in the Hobby Lobby case protects the religious liberties of the closely held for-profit corporations objecting to providing abortifacient contraceptives. However, there is much else in the decision to be concerned about for future religious liberty challenges. There are also things in some of the opinions that ought to be downright frightening to religious liberty advocates.

First, there are several aspects of the decision that are good. The Court recognized that corporations are protected by the Religious Freedom Restoration Act (RFRA). Limited for now to closely held corporations, the Court embraced the important fact that corporations exist to further the interests of their constituents, such as shareholders and officers. If for-profit corporations could not exercise religion, religious individuals would be faced with a nigh impossible “Hobson’s choice” of maintaining their religious rights and forgoing the significant advantages of the corporate form, or incorporating and giving up their religious rights.

As importantly, the Court refused to accept the government’s attempt to re-characterize and minimize the Hahn’s and Green’s religious objection. The government sought to characterize the objection as only relating to the use of abortifacient contraceptives directly, ignoring completely the religious nature of their objection to complicity in providing access to the contraceptives at issues. The Court wisely refused to accept that re-characterization, stating that it was not the Court’s job to evaluate the validity of the individual’s belief.

Those two things are rightfully a cause for celebration, but the Court’s decision leaves much else to be desired. The first thing that should cause religious liberty advocates to be concerned is the Court’s treatment of the compelling interest test. Although the majority opinion, written by Justice Alito, expressed skepticism of the idea that providing contraception coverage was a compelling state interest in the face of all the other exception, Justice Alito expressly declined to rule on that question. He assumed for the purposes of the rest of the decision that the government had a compelling interest in providing universal contraceptive coverage. That is not necessarily a problem, the Court often assumes issues without deciding them if the case can be decided on other grounds. However, what is clear from Justice Kennedy’s concurrence is the reason they assumed that answer without deciding it: Justice Kennedy believes it is compelling government interest and therefore would not have joined the majority if they had decided against the government on that question.

Justice Kennedy’s concurrence provides another cause for concern. Because he necessarily provides the fifth vote in a 5-4 decision like this, his opinion, limiting the majority’s holding, controls. Unfortunately, he bases the decision that the contraceptive mandate is not the required “least restrictive means” on the availability of the accommodation provided to religious non-profits. That is, he decided that the government’s decision to allow religious non-profits to be exempt from coverage but force the insurance company to provide the abortifacient contraceptives was sufficient for for-profit corporations as well. This foreshadows a defeat in the case by some of those religious non-profits challenging the requirement that they be complicit in arranging the alternative coverage. Even though the 11th Circuit just sustained one such challenge based on today’s ruling, it appears likely the Supreme Court will not have a majority for upholding that decision. Although the majority of the Court expressly declined to decide that question, the Kennedy’s concurrence makes it unlikely he will join with the four others in today’s majority to rule in favor of those entities in a later decision.

Justice Ginsburg’s dissent provides what is the ugliest (and most frightening) part of today’s decision. Although she was in dissent, her manifest contempt for you and I should concern us. She dismisses as “ilk” those who believe in Biblical sexual morals and lumps them in with racists. Unfortunately, the majority, in dismissing her concerns, leaves the door open to holding the government can rightfully make Biblical sexual morals illegal in the workplace. Although the majority, rightfully, responds to Justice Ginsburg’s criticism by stating today’s decision does not threaten laws prohibiting racial discrimination, the majority doesn’t defend the right of individual’s to conduct their business in accord with Biblical sexual morals.

Although today’s decision is rightfully a cause to celebrate, it also leaves a lot to be desired for protecting religious liberty in the public square.

Supreme Court Delivers Momentous Religious Freedom Victory

by FRC Media Office

June 30, 2014

WASHINGTON, D.C.- Family Research Council (FRC) praised today’s ruling by the U.S. Supreme Court upholding religious liberty and protecting the conscience rights of family businesses who object to being forced to pay for the coverage of sterilizations, contraception and drugs that have the potential to destroy an unborn child.

FRC President Tony Perkins learned of the ruling this morning as he met with the Hahn family, founders and owners of Conestoga Wood Specialties, which were represented by Alliance Defending Freedom attorneys in this lawsuit challenging the Obama administration mandate.

Perkins made the following comments:

The Supreme Court has delivered one of the most significant victories for religious freedom in our generation. We are thankful the Supreme Court agreed that the government went too far by mandating that family businesses owners must violate their consciences under threat of crippling fines.

All Americans can be thankful that the Court reaffirmed that freedom of conscience is a long-held American tradition and that the government cannot impose a law on American men and women that forces them to violate their beliefs in order to hold a job, own a business, or purchase health insurance.

The unfair HHS mandate gave family businesses two non-choices: either violate your deeply held moral beliefs and comply by paying for drugs and services to which you object, or pay crippling fines of up to $100 per day, per employee, for non-compliance. This mandate threatened the jobs, livelihood and healthcare of millions of Americans and forced those who stood up for their conscience, like Hobby Lobby and Conestoga Wood, to either comply or be punished.

Thankfully, the threat the HHS mandate imposed on Americans has been deemed unlawful today as a violation of core religious freedom rights. While we celebrate this landmark decision, it is our hope that lower courts will follow the Supreme Court’s lead and protect non-profits like Little Sisters of the Poor, Priests for Life, and Wheaton College from the unfair HHS Mandate,” concluded Perkins.

Press Release: Courts Will Not Have Final Say on Marriage

by FRC Media Office

June 25, 2014

WASHINGTON, D.C.- Family Research Council (FRC) President Tony Perkins released the following statement in response to two rulings today - one being a two-to-one ruling from a 10th Circuit Court of Appeals panel striking down Utah’s marriage amendment and another one from a federal judge striking down Indiana’s Defense of Marriage Act:

While disturbing, today’s rulings come as no surprise given the rising disdain for the rule of law promoted by the Obama administration. These latest rulings are not just about redefining marriage but they are a further attempt by the courts to untether our public policies from the democratic process, as well as the anthropological record.

While judges can, by judicial fiat, declare same-sex ‘marriage’ legal, they will never be able to make it right.  The courts, for all their power, can’t overturn natural law. What they can do is incite a movement of indignant Americans, who are tired of seeing the foundations of a free and just society destroyed by a handful of black-robed tyrants. The Left has long believed packing the federal courts with liberal jurists is the means of fulfilling a radical social agenda, as the American people refuse to endorse that agenda at the polls or through their elected representatives.

As we saw with Roe v. Wade in 1973 - despite the Left’s earnest hopes, the courts do not have the final say. The American people will have the final word as they experience the consequences of marriage redefinition and the ways in which it fundamentally alters America’s moral, cultural and political landscape,” concluded Perkins.

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