Loving v. Virginia

-Submitted by David Drumm (Nal), Guest Blogger

500px-Seal_of_the_United_States_Supreme_CourtLoving v. Virginia (1967) was a case decided by a unanimous Supreme Court that invalidated all laws that prohibited inter-racial marriages. At the time, Virginia was one of 16 states that had statutes that prohibited and punished inter-racial marriages. Considering recent oral arguments regarding California’s Proposition 8 and the Federal Defense of Marriage Act (DOMA), the similarity to arguments made in support of anti-miscegenation statutes is striking.

One of the arguments used by those who oppose same-sex marriage is “does the state have the right to define marriage as it sees fit?” This issue was addressed by the Court in the opinion written by C.J. Warren:

… the State does not contend in its argument before this Court that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment.

The Court is not “redefining” marriage, it is setting the Constitutional bounds on the State’s police power.

Another argument used by those who oppose same-sex marriage is that the Equal Protection Clause of the Fourteenth Amendment does not apply since “there is no test or law banning gays from marrying a person of the opposite sex.” This was the same argument used by Virginia in Loving: “miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race.”

The Court rejected the idea that “equal application” of Virginia’s law was enough to circumvent the proscriptions of the Fourteenth Amendment. Virginia had hoped to have its statutes considered under the rational basis test, where “any possible basis for concluding that they serve a rational purpose” would allow the statutes to be upheld.

The Loving Court also opined that marriage is one of the “basic civil rights of man,” and that the “freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” This would seem to put marriage squarely in the category of fundamental rights, requiring application of strict scrutiny for purposes of equal protection analysis. In Shapiro v. Thompson (1969), the Court held that any burdening of a fundamental right must promote a “compelling governmental interest.” The denial of the fundamental right of marriage to same-sex couples doesn’t even pass the highly deferential rational basis level of scrutiny.

J. Scalia, in his dissent in Lawrence v. Texas (2003), noted that the majority ruling leaves “state laws limiting marriage to opposite-sex couples” on pretty shaky ground. However, many agree with J. Scalia when he asserted that Lawrence was not a fundamental rights case. According to J. Scalia, any state that outlaws behavior that is “immoral and unacceptable,” will satisfy the rational basis test. How does one fail this test?

In McCulloch v. Maryland (1819), C.J. John Marshall wrote that the Constitution needs to be adapted to new situations if it is “to endure for ages to come.” Those who expound the Constitution should adopt Marshall’s “Adaptive Constitution” to ensure its continued relevance.

In Loving, the Court didn’t side-step the issue, but found that the Virginia’s statutory scheme “violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment.”

H/T: Sandy Levinson, Gayle Lynn Pettinga (pdf), Arthur S. Leonard, Jeffrey D. Jackson (pdf).

48 thoughts on “<i>Loving v. Virginia</i>”

  1. randyjet,
    Whether same sex marriage was allowed in the 1960s is irrelevant to any argument that it might somehow be different. Legal principles can and do pass the test of time, even when society changes. I am not a lawyer, but have hung around enough courthouses over the years to have picked up some understanding of how things work by osmosis. Principles in Constitutional law hold fast, regardless. Radio, TV and the Internet certainly did not exist when the First Amendment was ratified. If one were concrete minded, it could be said the 1st A. only applied to printed material. Obviously, that is not the case.

  2. randyjet 1, April 6, 2013 at 3:24 pm
    People are perfectly free to marry any person or persons they wish now in any church or mosque, and the state has every right to decide which ones they will give legal status to.
    That misunderstanding comes from not realizing the history of marriage, just like in Lawrence v Texas they did not understand the history of the bedroom of adults.

    Your statement that “the state has every right to decide which ones they will give legal status to” is untenable for several reasons.

    When “the state” is the federal government, it has the 5th amendment to contend with, and when “the state” is one of the 50 states, it has the 14th amendment to contend with.

    Churches are very valid institutions in the American legal system, and their pronouncements concerning their religions concept of marriage are binding so long as they are not otherwise illegal.

    Same with the states who must recognize marriage without religious preference, and without violating the 14th amendment.

    Therefore, sexual preference cannot in and of itself be a valid factor in a state’s decision to sanction or not sanction a marriage because of:

    No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    (14th Amendment). Combine that with:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …

    (1st Amendment) and DOMA infringes on religious marriage rights to marry gay folks or folks who are not gay (free exercise of religion).

    State laws concerning marriage should focus on property rights of those who become married.

    States should not circumvent religious marriages nor non-religious marriages between consenting adults, because they cannot circumvent what those consenting adults do in their bedrooms (Lawrence v Texas).

    1. OS Fortunately the 1st applies to speech in all foms, not just printed word along with the right toassemble for redress of grievances. As I said previously, I will change my position when any person can show me that same sex marriage has existed in any state, terriroty, law, or precedent that makes it a valid right. We are NOT talking about the right to live together, though that is a fairly recent legal thing too since co-habitation used to be illegal and as Prof Turley filed suit in Utah is still illegal in Utah from what I understand. The priniciple of being able to live together in this case is NOT at issue in same sex marriage. The issue is whether or not the state MUST grant legal status to it. It is similar to whether or not a state must grant a subsidy to all buinesses if it grants one to one business. In aviation, the government subsidized the initial airlines, and it was not denying the rights of other airlines that did not get those subsidies.

      To Dredd Gays can marry in any church or mosque or synagogue in Texas that will do that. There is NO law nor can there be any law against that. Now it may not be legally recognized by the state of Texas, but they are perfectly free to do so and thanks to recent court decisions can be secure in their rights in their homes. The operative thing for this is the privacy principle for OS that was enunciated in Griswold. THAT is a legal principle since the whole Constitution is designed in all its provisions to ensure that right, even though it is not explicitly stated. To deny the right to privacy would be to deny the whole idea of it.

      As for discrimination, the state cannot have a fertility test for couples, cannot have a test for not being gay, nor have a racial test etc.. all of those would be impermissible constraints that have no rational basis that the state must prove in order to have such restrictions.

  3. “Marriage is only a right conferred by the state in legal terms.”


    Marriage is an agreement between two people. It’s a contract. Contracts can be had in the state of nature but your only option for enforcement for breach or to seek dissolutoin is self-help.

    Try again.

    “Citizenship back in a state of nature existed too by the way”


    The state of nature is a state of lawlessness. There are no governments at the state of nature ergo there are no states to be citizens of. You’d be a resident of wherever you lived, but you’d be a “state” unto yourself.

    Try again.

    Or better yet, learn that your thinking about the nature of rights is simply wrong, Randy.

    1. My previous post was in respone to OS by the way. As for marriage existing in a state of nature that is not marriage since it requires a state to enforce a contract as Gene H points out. Thus marriage as a legal matter does not exist since there are no laws. What Gene H refers to is simply called living together, not marriage. That is legal now for all people and in any groups as I pointed out earlier.

      The problem with dismissing the need for a large majority on the SCOTUS ruling is that such a ruling can and quite probably will be overridden with a Constitutional amendment. Those proponents of same sex marriage should realize that even if the SCOTUS ruling goes in their favor, that an amendment overturning that by amendment will be quite probable since there are more than enough states which do not allow same sex marriage. We do not need passage in Congress to get this done so opposition in the Senate cannot stop it. The same is true of overriding the Citizens United ruling of the SCOTUS and I have signed many petitions on behalf of a Constitutional amendment to get rid of corporate personhood. If they combine the two amendments I would more than likely vote for the combination, not them seperately.

  4. Randy,
    The problem with your premise is that marriage is supposed to be portable. Your marriage should go with you when you cross state lines.

    Marriage is not like conceal carry permits, which are allowable in some states but not others. The Federal government has standing in the marriage issue because it involves taxes and other Federal laws. I read an article just a couple of days ago where a same gender couple were married where it is legal, but moved to a state that does not recognize the marriage. They wanted a divorce, but were told by the judge they could not have one. The judge told them that since the state does not recognize a legal marriage from another state, he could not grant them a divorce.

    1. Nomally I agree with most of what your positions are. In this case, you are dealing with the DOMA arguments not the so called “right” to marry any person or persons. That is a seperate argument. I will agree that same sex marriage is not changing the definition of marriage, IF any person can show me any state, territory that recognized same sex marriage before or even for decades after the Loving ruling. Same sex marriage is a new construct, and I hardly think that any rational person can say otherwise. I will change that position if you can show me any precedent, tradition or law in any state that acknowledged that kind of marriage. So to say that this “right” existed naturally or is an inherent right is beyond reason. We are NOT talking about the right to live together since that exists now for all kinds of living arrangement. Thus I do agree that the state has no business or right to say who may or may not live with whoever or whatever they wish. This too though is of recent vintage since I personally knew a person who WAS arrested for doing that without benefit of marriage in CT. Gene H and others take the right to live with whoever you want to be “marriage”.

      As for DOMA, this raises some really tough questions as for the Federal government and laws. I think that DOMA has its proper place since it does not force other states to do anything against their rights. I think there is no question that the Federal government can decide what benefits it chooses to give any persons as long as it does not invalidate the same rights of others in the same class such as citizens of the US. For example, the Federal government can decide to deny a US pilots license to those who are not US citizens. That does not deny them any rights.

      The problem with DOMA will come when some state such as perhaps Utah will decide to allow polygamy. Then will the Federal government be able to deny survivor benefits to all the wives of one man? I think that it will be perfectly legal to do that. There are others who will disagree I suppose. Then if the polygamous marriage family moves to another state, will that state have jurisdiction on that marriage or divorce? I don’t think so since that state has every right to decide its laws on marriage and how it will be applied. The US dodged all these bullets when they told Utah that they would not admit them as a state as long as polygamy remained legal there. So when they had a “revelation” that polygamy was no longer ordained by God, that solved the problem for them and the rest of the US.

  5. Gene,
    Thanks for repeating that this is not about redefining marriage.

  6. Randy,

    The fundamental problem with framing the argument as you have above (and elsewhere) is assuming the precedent creates rights or that any governmental action creates rights. Rights are inherent and laws (including common law precedent) limit them or protect them specifically for mutual benefit under the social compact model of government. No precedent is required to recognize a right asserted, only recognition and a decision to either protect the right or prohibit actions based on the right asserted for the mutual benefit of society within the constraints on government placed by the Constitution.

    Also, unanimity is not a requirement for a judgement to be valid in a court of appeals, just a simple majority, even when that court of appeals is SCOTUS. As in the 6-3 majority that overturned Bowers in Lawrence.

    The debate legally isn’t about “changing the definition of marriage”. It’s about the limits of state police powers and an inherent right that exists at the state of nature.

    The example of immigration status is an irrelevant argument because citizenship is a legally determined status, not a natural right.

    I can only tell you this so many ways.

    Your thinking about the nature of rights is backwards in every sense of the word.

    1. Marriage is only a right conferred by the state in legal terms. It does NOT exist apart from the state since in a state of nature there is NO government and you can live with and have kids with whoever you wish. As gays can do NOW in the US. There are probably millions of gays and polygamists who are married now,but they do not have state legal sanction is all. The right to vote is also a right that can only be conferred by the state since it cannot exist outside of it. Thus your blanket observation that the state cannot grants rights is absurd.

      Citizenship back in a state of nature existed too by the way, so it more of a right than marriage since I do not recall native Americans having divorce courts or formal marriage. They DID allow new members who did not have to be born into the tribe or take citizenship tests Marriage too is a legally deternmined status and the natural right enunciated by Loving by NO stretch can be atttributed to same sex marriage. People are perfectly free to marry any person or persons they wish now in any church or mosque, and the state has every right to decide which ones they will give legal status to.

  7. Good post, nal. Always enjoy reading Sandy Levinson’s posts along with those of Joey Fishkin. Our daughter has been fortunate to be educated by those two.

  8. Still beating that dead horse, eh, Randy?

    Unless sex is non-consensual, there is no valid state interest in criminalizing it based on Due Process and Equal Protection grounds. Lawrence v. Texas, 539 U.S. 558 (2003) overruled Bowers v. Hardwick, 478 U.S. 186 (1986), agreeing with Justice Steven’s analysis in dissent in Bowers saying that “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.” Lawrence v. Texas, 539 U.S. 558, 578 (2003).

    Procreation still isn't a valid state interest in marriage no matter how many times you say it. If it were, criminalizing marriage between infertile heterosexuals would be perfectly legal.

    Your definition of heterosexual only marriage is still a religious definition of marriage. Even Blackstone viewed the only valid governmental interests in marriage are contractual. Loving “redefined” marriage in the exact same way that the current crop of cases for homosexual marriage will “redefine” marriage – by marking the limits of valid state interests in marriage. Which is the same valid interest that the state (and you) have in other people’s sex lives and contracts entered into with valid consent of the parties involved – which is to say “none at all”. Whom others choose to sleep with and marry? If they aren’t children or otherwise legally incapacitated from granting consent, it’s quite simply none of your business or the state’s business.

    We get it. You don’t like homosexuals marrying. Guess what? You don’t have a legal leg to stand on in your objections.

    1. Gen H I would agree with you IF you could show me any state or territory which allowed same sex marriage at the time of Loving. Then you would have a valid point that marriage as understood at the time encompassed same sex marriage. The fact is that most states allowed interracial marriages, so there was ample precedent to state one man/one woman marriage as a right and that a state must show compelling state interest in denying it in other states. You make the incredible leap to say that the SCOTUS included same sex marriage in that formula. If you wish to expand the very definition of marriage in Loving, then one could make a better case for polygamy since one territory at one time did allow that.

      You cannot simply give a new meaning to one word, and then claim that same sex marriage is now legal and the state has to prove its compelling interst in limiting it to opposite sexes. So if you can show that same sex marriage had even been thought of at the time, then you might have a point. I also have to remark on the fact that in Brown vs Topeka ruling Warren realized that it would lend far more weight to the opinion which overturned a huge number of laws, that it needed to be unanimous. I am struck at the frivolous manner in which the proponents of same sex marriage simply look at a unanimous ruling for such a major shift.

      Another example of redefining words in law would be if the proponents of illegals say that citizen now means any person who lives and works in the USA. Then the state has to prove its compelling interest in limiting citizenship to those who are born as US citizens or who go throught the legal means to acquire ctiizenship status. Thus if one says that a person becomes a citizen on touching US soil, they get all the same rights, and cannot be deported and can vote, and have all the other rights. Thus it becomes a self defining right without any basis in law. precedent or fact.

      I fail to see how you say that I am opposed to gay marriage or care about it much. As I have posted, I have NO problem with New York expanding marriage to same sex couples. That is their right to do so, just as it is their right to make polygamy legal as Utah once did.

  9. Thank you, nal, for the well reasoned context. I have nothing to add as I think you presented the matter perfectly.

  10. “The Court is not “redefining” marriage” The court did not expand marriage beyond One Man One Woman, the court simply addressed the issue of race.

    The goal post of the current marriage debate change dependant upon the speakers motives, it is same gender marriage, not the lessor homosexual marriage. As Justice Sotomayor mentioned, what state restriction could exist for the state to discriminate upon the same gender sisters who may choose marriage. . . .

    Race and Gender are rather difficult to hide from the public eye, orientation is self-declared.

  11. One has to remember that when the Loving decision was written, it applied ONLY to one man/one woman marriage and it used the term marriage with that in mind. To change the definition of marriage to gay marriage is a leap that I think that Warren and virtually all of that court would have found absurd. In fact, that same court upheld statutes that made certain sexual acts criminal, so to say that they then would give legal sanction to gay marriage is irrational. Thus an accurate and rational reading of Loving should now insert the term, the one man/one woman legal contracts called marriage, in the reading of that decision to be fair. Thus the argument would fall on its face.

    Then if you wish to expand the definition of marriage to encompass same sex couples, you will also have to make some legal reason to deny the same to multiple marriages. In fact, there are perhaps hundreds of thousands of living arrangement in the US that have that as their normal mode of living. If you wish to define marriage as any persons who wish to get legal state sanction for their unions, then you will have to come up with some compelling state interest to deny that to those who live together, have sex together, children together, etcc and are married in the similar fashion as other legally married persons. The only way one can deny that kind of living mode is to restore the fornication statutes, those against cohabitation, etc. In fact, I actually knew one classmate in college who had been arrested in Hartford CT on those charges. He was white, and she was black which was the real reason for the enforcement of those laws. I think the state has the legal, moral, and practical right to define marriage in the terms of the original Loving decision, one man/one woman and that any restrictions on that right has to pass the rational means test. Not that the state has to prove a rational reason for not expanding that “right” to other legal marriages such as same sex or multiple partners.

    The original intent of the Virginia statute was to preserve white supremacy and the whole edifice of segregation by limiting any race mixing and undermining the majority which upheld that. I hardly think that denying gay marriage can be construed as having a similar intent since I doubt that gays will expand their electorate by marriage and children. In fact, one can construe a state interest in promoting exclusive one man/one woman marriages by the fact that millions of gays have gotten married to others of the opposite sex and have had children which would not otherwise been born, had gay marriage been an oppition for them. I would be interested in the views of Leonard Bernstein’s kids and Micheal Huffingtons since they probably would not be with us had gay marriage been available. Though given the fact that we are not suffering from underpopulation now, that is not too compelling an argument.

    I also think that if the state wishes to do as New York has done and pass a law allowing gay marriage, that is perfectly within their rights too. But to redefine the word marriage in Loving is dishonest and inaccurate.

  12. I am glad that JT put this new case in the parallel with the Loving v. Virginia case of 1967.

    I will point out a different perspective on the whole issue. Is the issue marriage or is the issue the right to convey property, to share property jointly, to devise property upon death, without taxation or interference by some government?

    Marriage has its advantages. Oh, it it hard to hear many folks recite the advantages when they are shopping at Walmart and arguing with wifeypoo. But, government will not allow you to share property with your loved ones without all of its restraints. If you are married for example and have no will and you have a home titled in joint tenancy as husband and wife then the survivor gets the house. If you are unmarried, have no will and have a joint tenant on the deed, the survivor gets the house. Great, so far. But if you are married and say husband stayed at home and raised the brats and cooked the brots while wife worked at Walmart for thirty years and paid into social security and wife dies, then husband gets some social security. Unmarried stay at home dad gets nothing from wife’s social security. And so it goes. Marriage is the conduit.

    So, society did not want inter racial marriage or transfer of property so the Great State of Virginia outlawed inter racial marriages. Now society does not want two males to call themselves “married” and so it is outlawed. Remember the adage that when marriage is outlawed only outlaws will have marriage.

    A better way to approach this schtick is to pass inheritance laws, social security and pension laws, tax laws, that allow one to designate one person as the inheritor, or co title person– ie. joint tenant. Then the institution of marriage will go the way of the Doe Doe Bird or Aunt DoeDoe. If you have an Aunt DoeDoe you will know what I mean.

    Alll this Halo Ground about marriage woiuld go away if the property laws were revised. When the kids were on Howdy Doody back in the 50s in Saint Louis and said hello to the tv crowd back home they did not say Hi Married Mom, Hi Married Dad and Hi Everybody. It was just Hi Mom, Hi Dad, Hi everybody. Simple. We can have a mom without mom being married to some schmuck who used the pee pee once. Dad can be that schmuck, whether married or not. The institution of marriage needs to go away along with the institution of slavery. Slavery got abolished with the 13th Amendment. Residual attributes should have been abolished with the passage of the 14th Amendment. The Civil Rights Act of 1964 was a large step forward for Reconstruction. Loving v. Virginia was a large step.

    If you think that your liberty interest under the constituion includes the right to partner with a same gender person then consider reform of the tax laws and inheritance laws. Dogs know better than to get married. Ask HumpinDog, he would not think of it or ever embrace that idea.

  13. This is an excellent read. I had thought this case would be on point, so your analysis confirms what I believed.

  14. Good job David. I have to agree with Bill H.’s question concerning Scalia’s “immoral and unacceptable” language in his dissent. Who decides what is and isn’t immoral and unacceptable? Hopefully, it won’t be Scalia.

  15. Good job, David. The perfect case to put the issue of homosexual marriages in proper context.

  16. Thank you David. One of the problems with today’s media is that they don’t provide context. You’ve placed the current cases in a context that makes the issue clear.

  17. “According to J. Scalia, any state that outlaws behavior that is “immoral and unacceptable,” will satisfy the rational basis test.”

    Who decides what is “immoral and unacceptable” and in what setting it meets that definition? Sexual intercourse, missionary position between opposite sex partners, would be moral and acceptable in the privacy of a bedroom, but would mostly be considered immoral and unacceptable in Macy’s store window. Should that act therefor be ruled illegal?

    More seriously, joining terms relating to moral judgement, which is largely an emotional issue. to the “rational basis test” strikes me as odd, at best.

  18. Dredd,

    You have a valid point. I still prefer the courts of Brennan as well as Marshall. I think I like the quote of Marshalls’ best ” I’ll do what I think is right and let the law catch up.”

  19. It may be important to note that church marriages are not the same as state marriages:

    When clergy or congregations marry couples it is a religious rite, not a civil ceremony, though the government may recognize it. Clergy and congregations choose whom they marry. They aren’t compelled to accept the state’s marriage definition, and indeed, many religious institutions don’t accept it. Many religious institutions are more restrictive than the state, rejecting interfaith marriages or remarriages after divorce. Some have a broader definition, blessing the unions of same-gender couples.

    (Religious vs. Civil Marriage, Marriage Equality Org). The tension between secular and religious forces spills over into the concept of marriage:

    The option of getting married without a priest’s blessing came to America with the Puritans of Massachusetts Bay Colony, who were second to none in their religious commitment and zeal but whose Congregationalist faith was animated by a strong dose of anticlericalism More aggressively Protestant than the Church of England, which they condemned for clinging too much to the old Catholic ways, the Massachusetts Puritans in 1646 passed a law making it a crime for anyone other than a magistrate — that is, a government official — to bring persons together in marriage.

    To prohibit clergy from officiating at marriages was a radical move, but the Massachusetts Puritans were radical people, religious experimentalists living in a quasi-theocratic community at the frontier of the known World. The religious basis for this civilly sanctioned marriage was that an Anglican priest was not necessary to form a good marriage, either before the law or before God. By taking marriage away from the priests and the Anglican hierarchy, the Puritans flouted the established church whose reach they had fled, in the process reducing the power of the priesthood relative to the congregations.

    In the minds of those who first introduced civil marriage to America, then, it was possible to bifurcate the formalities of marriage between consenting adults from the judgments of heaven. The legal requirement that a marriage be solemnized before an authorized person, whether government official or minister, simply reflected the practical requirement that the government keep records of who was married to whom, especially for purposes of establishing descent and property ownership.

    The state demanded a monopoly on the authority to solemnize marriages in order to ensure that the legal protections of marriage applied — not because the state claimed to have any special authority in matters spiritual.

    (quoting from Divided by God: America’s Church-State Problem – and What We Should Do About It, by Noah Feldman, Publisher: Farrar, Straus & Giroux, ISBN: 0374281319 ). For a long time people have sought shelter from those who view marriage different from them.

    Church marriages give some shelter when religious ideas are involved, but states must view marriages on a secular basis, which cannot discriminate as readily as churches might.

    In that light, it seems that DOMA is a government law that both intrudes on states rights to define marriage as well as intruding on religious rites to define marriage in a religious setting.

    So long as states recognize the religious marriages and secular marriages for property law purposes, tension between state and religion does not have to increase in the context of marriage.

  20. I started dropping by here because I really love legal discussions & reading you guys discuss issues like this is entertaining to me. These two decisions from the court are going to be very interesting no matter which way the fall. But as I get older I realize that they also are temporary and based more on societal standards than on anything written by the founders in the 18th Century no matter how much some people pretend to hew strictly to the old ink.

    How did we go from Scott V. Sandford and “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.” to where we are today? While high court rulings “moved the ball” it is very rare (IMHO) that they ever moved the ball further than the majority of the country permitted in either direction.

    There will be a Loving v. Virginia for gay marriage, if not these than eventually as we have come to better understand the situation and grown as a nation to see the human decency embodied in granting this right to men an women who deserve it.

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