Why The Government Can Shut Down Church Gatherings During Pandemics

Below is my column in The Hill newspaper. This weekend the Kansas Supreme Court ruled with the Governor in upholding her order to close church services over 10 persons. That is particularly notable since, as mentioned in the column, Kansas is a state with enhanced protections for the free exercise of religion.

Here is the column:

“Jesus bore it so that you would not have to.” If that recent declaration by the Awaken Church of Jonesboro in Arkansas is true, Jesus might also be viewed as the first coronavirus offender, because the Last Supper hosted three disciples too many under the social gathering limits in most states during this crisis. At the time, of course, Roman Governor Pontius Pilate was trying to contain Christianity itself, which now some church leaders accuse American governors of doing. Some churches plan to defy state public health directives by carrying out large Easter services.

The issue is playing out in several states. In Kansas, Democratic Governor Laura Kelly has barred religious gatherings with more than 10 people. That action prompted the Republican controlled state legislature to then vote to rescind the order as an attack on free exercise of religion. Kelly asked her staff to explore all her legal options. Under the Constitution, she is on strong grounds to issue such an order. While untested, the free exercise clause is not a license for religious spreaders in a pandemic.

This may be the most compelling use of the belief that the Constitution “is not a suicide pact.” I have been critical of that often repeated reference by those who want to ignore fundamental rights. It was originally attributed to Abraham Lincoln after he had violated the Constitution by unilaterally suspending habeas corpus. It is more often attributed to Supreme Court Justice Robert Jackson, without noting that he used the line in one of his most reprehensible opinions, a dissent to the Supreme Court extending protections to a priest arrested for his controversial speech.

These churches would convert the free exercise clause into a suicide pact of sorts. The interpretation not only puts the faithful at risk of infection but also their communities. No constitutional rights are truly absolute. Rights such as free exercise of religion and free speech can be overcome with a sufficiently compelling purpose of state and the least restrictive means of achieving that purpose. There is nothing more compelling than battling a pandemic, and limiting gathering size is the only effective deterrent to the coronavirus spreading until a vaccine can be made available.

However, that has not stopped defiance. In Florida, Republican Governor Ron DeSantis overruled local orders limiting or barring church gatherings. In Arkansas, Pastor Chad Gonzales of Awaken Church defied demands to end services. His declaration of Jesus as a coronavirus victim was based on the belief that Jesus took away every sin and disease on the cross, a particularly powerful message for Easter. Similarly, Pastor Tony Spell of the Life Tabernacle Church in Louisiana was arrested for holding large services. Spell declared his intention to hold large Easter services and insisted that he will never yield to this “dictator law.” Even more chilling was his statement that “true Christians do not mind dying.”

If this were a matter of just congregants dying, a constitutional argument could be made for the right to make a self destructive decision based on faith. Adults can forgo simple medicines or transfusions that would save their lives. Likewise, the snake handlers in West Virginia can still engage in that dangerous practice based on a passage in the Bible that the faithful “shall take up serpents” and the story of Paul surviving a venomous viper. Yet even in practices that kill only the faithful, many states have outlawed snake handling as dangerous to both humans and snakes.

One of the key factors in any constitutional review is whether free exercise of religion is truly being denied, as suggested by these pastors. There is a curtailing of free exercise of religion, including the important element of congregating together in faith, but these orders only temporarily halt one form of faithful expression and do not stop worshiping. Most faiths have moved online during the lockdown. Just as states can force churches to satisfy building or fire codes, they can bar congregating in churches and temples as public health risks in a pandemic like this one.

The objection from these pastors is not frivolous as there is a substantial curtailment in an expression of faith. But this is not an effort to establish a favored state church. It is content neutral on particular faiths impacted by the limitation on crowd size. Their views are not frivolous, but they are still reckless. Free exercise of religion does not allow dangerous acts, even if they are part of a demonstration of faith. A pastor should not be able to disregard public health limits on congregation size to fight a pandemic threat any more than he can disregard a fire safety threat.

The real issue here may be more about state law. Kansas Attorney General Derek Schmidt declared that “Kansas statute and the Kansas Constitution bill of rights each forbid the governor from criminalizing participation in worship gatherings by executive order.” Kansas law goes beyond the First Amendment in its protections. However, even the Kansas Preservation of Religious Freedom Act allows for a denial of forms of free exercise when based on a compelling state interest and least intrusive means. Schmidt notes that the orders do not stop grocery shopping and other gatherings. But religious services can be supplied online, while grocery shopping for most people continues to take actual visits to the stores.

This Easter will feel different for many of us. Yet the heart of the holiday, both religious and social, has never been stronger or more defining. This pandemic has drawn millions of Americans, believers and nonbelievers, to rediscover faith, family, and other core values. Our separation during this period is part of our sense of obligation to our neighbors as well as to our health care workers in a time of crisis. I am not so sure about Jesus being a coronavirus sufferer, as Awaken Church says, but I know he is a symbol of collective responsibility and of treating others the way you would wish to be treated. This includes protecting others from the spread of a deadly disease, just as you would wish to be protected by them.

The Constitution does not leave the states as mere bystanders forced to watch as pastors such as Tony Spell bus in hundreds of people for church services. Such services are worse than a “suicide pact.” They are a pact to serve potential spreaders. Spell may declare that “true Christians do not mind dying,” but their neighbors might mind a great deal.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.

90 thoughts on “Why The Government Can Shut Down Church Gatherings During Pandemics”

  1. Greatest Magic Trick Ever Performed by Humankind: We are all Trojan Horses, Guilty until proven innocent. The professor’s piece assumes the parishoners are with Covid and dangerous. Bad assumption! Further, the ‘experts’ have been wrong at every stage. They re-write history every day to disappear their daily errors. Science is an investigation, not a fact. Truths are subsumed by greater Truths. True scientists expect to be made fools of sooner or later. Ask Einstein. So to say that the Official of Learned Ignorance ought have the authority to negate the inalienable rights of the citizen sovereigns based upon subjective science, is well, a scholarly revelation of Learned Ignorance.

  2. “does an amendment really need to be added to tell folks to use common sense in a national health emergency” ?

    YES.
    The weak and infirm shall shelter in place and receive guarded assistance to do so, unless they refuse such of either arrangement.

    The rest of society may live as usual, out and about with each other, as the natural ongoing reward for maintaining their health, or by circumstance, their youth or vigor, etc.

  3. Every “right” expressed in the US Constitution has been abrogated.
    The rights of the State have been ruled superior to the rights of the individual.
    That is the essence of Socialism.
    What is a legal right, if it can be taken away?
    Practical concerns, which are supposed to be the rare exception, have become the rule, the tail that wags the dog.
    The 1st Amendment guarantees the right to practice religion without interference by the government; the counter argument is that such practice cannot be allowed if it harms someone else.
    The collectivist logic used here to erase our individual rights is that the populace en mass must have their rights erased en mass, ostensibly to protect individuals, but it is a great leap of logic to say that an individual provably harming someone else in the exercise of his religion is the same as a class of people who might potentially be harming someone some other class of people.
    The same arguments made here by Prof Turley about the supposed dangers of the coronavirus can be applied to any arbitrary circumstance –at what point do ‘practical concerns’ usurp the right, and apply to a set of people instead of an individual? That too is now arbitrary and dependent upon the High Priests of our judiciary, and arbitrary standards of court created rules.
    The only way to extinguish that arbitrary authority is to treat the right as fundamentally absolute in the first place — simply the state should not have the option to infringe upon the clearly stated rights in the Constitution, and certainly not apply it to a class of people or a class of circumstance.
    If there is an individual who is provably infecting other people with something provably dangerous, then deal that person’s behavior. That is the practical way to address abuse of rights.
    The more we drift away from the legal ideals of the Constitution, the more it becomes a foundation and precedent to justify an even further violation of the principles down the line, until what you have as controlling law no longer resembles the originating document or the rights it once guaranteed.

      1. Well that’s a new one by me.
        Right wing snowflake? I thought all the snowflakes were SJW lefties.
        In either case, I am not snowflaking at all, I say grow a pair and go out there without quivering about a non-existent danger that has been hyped up beyond sanity.
        There is less to fear from corona than there is to fear from the seasonal flu.

        1. You know anyone who got it? I have 2 dead family members from it – both admittedly old – and one business associate who survived but said he would regularly cough until he fainted and lost 50 pounds. Some have it and barely know it, while others young and in good shape can suffer very much even if it doesn’t kill them. NO fun and I wouldn’t advise taking it lightly, though who knows – maybe your lucky day.

  4. Not sure why this is an issue .. or any other of the rules or mandatory orders that are being put in place during this pandemic .. what exactly is the violation .. your freedom to do what .. kill people. The rules and mandatory order by States and stores are for the protection of all the people and employees .. does an amendment really need to be added to tell folks to use common sense in a national health emergency to follow rules that are for the ‘welfare’ all the people .. even if it means giving up a little bit of freedom??? Or are you that selfish that you fight is only viewed as stubborn ignorance and not protecting the reason the Constitution was written in the first place. I guess common sense is not really that common. Don’t be fooled .. these people protesting rules that for safety of all are not fighting for their freedom .. they are fighting for the right to kill people ..

    1. “Not sure why this is an issue .. or any other of the rules or mandatory orders that are being put in place during this pandemic”

      It’s an issue because it’s a question of what legal powers does the government have during an “emergency.” Can the Governor/President/Mayor/etc simply declare an “emergency” and start issuing edicts…and what are the limits?

      “what exactly is the violation .. your freedom to do what .. kill people.”

      The freedom to go to work to make a living and thereby feed yourself and your family. And many more.

      “The rules and mandatory order by States and stores are for the protection of all the people and employees”

      Authoritarians always say the same exact thing: this is for your own good.

      “does an amendment really need to be added to tell folks to use common sense in a national health emergency”

      No, letting people use their own common sense rather than having to be dictated to by the government is the basis of our Constitution. You’re the one that refuses to allow folks to use common sense.

      “even if it means giving up a little bit of freedom?”

      Security or Freedom? Ask Ben Franklin.

      “Or are you that selfish that you fight is only viewed as stubborn ignorance and not protecting the reason the Constitution was written in the first place.”

      Look in the mirror…and your understanding of the Constitution gets an “F.”

      “these people protesting rules that for safety of all are not fighting for their freedom .. they are fighting for the right to kill people”

      You are an authoritarian loon.

    2. We are a modern scientific society. The people that need to give up their freedoms are the ones that are sick and weak, they know who they are. The cowards may as well.
      The rest of us do not.

      “… even if it means giving up a little bit of freedom?”

      People’s entire lives have been wiped out by the tens of millions. It may reach a hundred million or more, perhaps it already has time will indicate and the numbers will be suppressed.

      How many hundreds of thousands will die in the USA because of the after effects of the tyranny now underway ? Ten, a hundred ?

      Tens of millions have already perished in the 3rd world over this worldwide insanity you support. I know you care, but caring and getting results that produces fewer deaths than the virus itself is likely already exceeded. No worry, you won’t be one of them.

  5. As Old Professor exemplifies below these rulings by decree can be overly blunt, failing to understand the intent rather than the mere letter.

    So, if it matters enough to you, take it to cou💒💒

  6. Prof. Turly has once more given us all food for thought. One could wish the proffessor could find the time to delve a bit deeper into the issues. That is not to prejudge the outcome of such an endeavor but to invite the effort. For example there needs to an an analysis of how “worship” is understood versus free exercise of religion. Some elements of worship, such as verbalized praise can be a group endeavor, an online one, or even an individual one. Not all exercises of religion can be so easily isolated from group efforts. Many Christians and certain denominations believe that important elements of their worshiPcan only be accomplished in group formats. For example, but not limited to, one can think of how certain denominations think of the Eucharist, or what some see as a command to gather. A person, a group or even a government may disagree as to the import of in person activities other than worship but is it the role of the government to make such judgements?

    Additionally, while it may be a truism that the constitution is not a suicide pact an examination of the applicable law concerning when the government can treat religious organizations differently from secular would be helpful. The mention of grocery shopping was illustrative but not compelling. A large number of people, but not everyone, and not everywhere, can now do grocery shopping on line. It would seem that a large number of relgious believers, but not everyone, can exercise their religion on line. Yet supermarkets are open and at least some churches are closed by force of government. Insight into how the government is making its distinction between in person grocery shopping versus in person religious exercises would be helpful in the current situation.

    Again thanks to prof. Turly for initiating the conversation. One hopes that I. The midst of a busy schedule he might get a chance to help us all wade more fully through the issues.

    1. “Rights such as free exercise of religion and free speech can be overcome with a sufficiently compelling purpose of state and the least restrictive means of achieving that purpose. There is nothing more compelling than battling a pandemic, and limiting gathering size is the only effective deterrent to the coronavirus spreading until a vaccine can be made available.”

      This statement of Professor Turly might be acceptable except that he is seemingly allowing the State powers to curtail worship assemblies that contradicts his own statement. With the large size of many churches an assembly in many cases can easily admit well in excess of 10 and still maintain a social distancing of six feet. In fact, my wife and I attended a church gathering on March 15th before the prohibitions of church gatherings started. The church was quite wide and the pastor told us that for the health concerns of our fellow parishioners and our community we should space ourselves out by having people at the ends of one pew, and in the middle of the pew behind and in front of us – we were accordingly spaced from 8-10 feet apart (at the least), thereby exceeding the CDC requirements. That would have been quite acceptable to the CDC next Sunday except that the governor and other officials closed churches in Pennsylvania from March 22nd onward (with the total acquiescence of our courageous prelates).

      One very logical fear – Once the State arrogates upon to itself the power over religion and makes it a subordinate body subject to the whims of its police, sheriffs, and other potentates it is quite easy to keep going further until a sheriff in California decreed that the Governor’s orders forbade a church to conduct Internet streaming of a live service with even four people if they employed musical instruments or singing. Once churches accede their rights as a convenience to avoid controversy, where the limit be drawn this time or worse yet, next time?

  7. Might as well have the title “The Government Has Complete Authority over it’s Subjects” Truly Orwellian Dr Turley.

    “Constitution, she is on strong grounds to issue such an order. While “untested”, the free exercise clause is not a license for religious spreaders in a pandemic.”

    This is silly, if none of the congregation had the Virus, then how could they spread it?
    Dr Turley is working off false pretenses, that’s not allowed in court, THROWN OUT!.

    1. What is silly is your assertion that individuals have absolute freedom to yell fire in a crowded theater or do any other things that are a danger not just themselves but to others Who could die as a result.

      1. People can freely go to church or stay home. It’s called freedom. If someone is scared, they stay home.

        What you want is everyone hiding inside because you want to hide inside.
        But you tell us you really don’t want to hide inside, you want everyone else to, so that nobody else can die from not hiding inside. And so anyone else hiding inside you can be forced to remain like you, and not bring your fear home with them. So you’re living with people that want you dead.
        Those are called liberals. All of them. Including you. You’re a fearful, weak, sick, cowardly person, and you’re here to save everyone.

        LAUGHING at you.

  8. Huh. Guess these Christian pastors forget Romans 13:1-7

    https://www.biblegateway.com/passage/?search=Romans+13%3A1-7&version=ESV

    13 Let every person be subject to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. 2 Therefore whoever resists the authorities resists what God has appointed, and those who resist will incur judgment. 3 For rulers are not a terror to good conduct, but to bad. Would you have no fear of the one who is in authority? Then do what is good, and you will receive his approval, 4 for he is God’s servant for your good. But if you do wrong, be afraid, for he does not bear the sword in vain. For he is the servant of God, an avenger who carries out God’s wrath on the wrongdoer. 5 Therefore one must be in subjection, not only to avoid God’s wrath but also for the sake of conscience. 6 For because of this you also pay taxes, for the authorities are ministers of God, attending to this very thing. 7 Pay to all what is owed to them: taxes to whom taxes are owed, revenue to whom revenue is owed, respect to whom respect is owed, honor to whom honor is owed.

  9. So, apparently, the Obama administration ordered and paid millions for Novel Corona Virus research in Wuhan, China.

    The breadth of the Obama Coup D’etat in America expands.

      1. Taxpayer-funded animal experiments tied to Chinese ‘wet markets’ and Wuhan laboratory
        by Carlin Becker
        | April 10, 2020 01:40 PM

        Taxpayers have unwittingly funded the same “wet markets” and laboratory in China that lawmakers are turning their attention to during the coronavirus pandemic.

        As recently as 2015,…

        https://www.washingtonexaminer.com/news/taxpayer-funded-animal-experiments-tied-to-chinese-wet-markets-and-wuhan-laboratory

  10. From the backup president today: “The President of the United States has the authority to do what the President has the authority to do which is very powerful. The President of the United States calls the shots.”

    Breathlessly waiting for Turley to provide constitutional arguments to the contrary.

    When deplorables meet knuclehead, why would you expect any better.

  11. For reasons given in this article, and a little more, I suspect that the weekend posting, “WA Governor Inslee’s Order Cancelling Remaining School Year Possibly Unconstitutional” is wrong.

    An emergency such as this pandemic must supersede a constitutional provision for providing schooling.

    What scale of emergency would be required to close the schools. Mt. Rainier Erupting? A massive earthquake? A meteor strike?

    This pandemic is enough. Constitution or no.

    The extraordinary and legitimate powers granted to the executive in an emergency of this scale are not likely to be unlimited.

    Those police powers generally are curbed, if at all, by what is reasonable, and I think we may see some litigation on that issue when this is over for those jurisdictions which have gone too far.

    An order not to attend church during an epidemic while other organizations are not under the same mandate would be both an unconstitutional and an unreasonable [hence unlawful] exercise of the police power.

    An order addressed not specifically to churches but to any assembly likely to increase infection rates and put others at risk should be both reasonable and constitutional. There is no religious right to endanger others.

    On the other hand, ticketing parishioners who remain parked in their cars in a church parking lot while listening to speakers or over the radio seems unreasonable and, probably unlawful, because there is no increased risk to anyone.

    Arresting a paddle boarder alone in the ocean for failing to maintain social distance [which happened in California] is so bizarre that one suspects that that police department has extended affirmative action to the mentally retarded.

    The governor of Washington also seemed to exceed a reasonable exercise of his police power when he banned relatively solitary activities like fishing and hunting. They pose no risk of spreading infection–less than most activities–and almost seem like a jab at a disliked political group.

    Governor Whitmer of Michigan seems almost to have gone batty by barring people from buying garden seeds and other items offered in stores where it is okay to buy many other items. If you move from a ham to a package of seeds your risk of infection to yourself or others is unlikely to change.

    When this settles, I hope we see more litigation based on arbitrary and capricious use of the police power. Bans on plastic straws, bans on plastic bags, and many other nutty things legislatures have adopted lately need closer scrutiny. They seem to think the police power is unlimited. It is not.

    1. Inferior levels of government cannot deny constitutional rights, freedoms, privileges and immunities.

      Didn’t the Constitution define “emergencies” in its provision for the suspension of Habeas Corpus as “rebellion or invasion?”

      Do you see a rebellion or invasion?

      I see a pathology; I see a temporary disease that the vast majority of Americans will overcome and recover from.

      I see “The Great American Pandemic Panic and Melodrama of 2020.”

      Let me give you a multiple choice quiz.

      Will 90%+/- of Americans:

      A. Survive COVID-19

      B. Expire from COVID-19
      ____________________

      This whole scam is not dissimilar to the concept of taking money from people who have it and giving to the people who don’t. That was never intended or proposed by the Founders. Government is taking freedom from most Americans to protect the weak and invalid from an inescapable predator. It’s gone too far.

      1. Under the Constitution states are not considered to be inferior governments when exercising powers not delegated to the federal government.

        The emergency language in the constitution lays out conditions under which Congress can federalize state militia formations: rebellion or invasion.
        In practice when this happened during the whiskey rebellion the federal government first obtained permission from the governor of Pennsylvania before sending militia from other states into Pennsylvania to put down the so-called rebellion.

        The emergency language in the constitution places is no limitation on what the states can do to respond to a public health crisis. Such a power is not listed among those delegated to the federal government and therefore according to the 10th amendment is reserved for the states.

        This becomes clear when we look at what happened right after the Constitution was ratified when there was a yellow fever epidemic in Philadelphia in 1790s. Many localities refused to allow anyone from Philadelphia to enter their boundaries.

        No one complained at the time that this was a violation of the bill of rights or a power not properly belonging to state and local governments.

        1. States cannot nullify the Constitution or the Bill of Rights. That is why they are losing their cases in Federal Court. The conspiracy world talked about FEMA camps and we just learned they are not needed. Call the flu a pandemic and you can lock people up in their homes. You can send them a stimulus check to pay for their food. Let them go to the grocery store and pick out the food they want to eat. All that without ever housing one person.

          We have learned that if you instill fear in people, they will gladly give up their rights and take whatever handouts the government is willing to give. They will accept confinement; they will wear masks and be compliant.

  12. In 1788, fully aware of the religious practice of human sacrifice by aboriginal tribes and the excesses and transgressions of history’s Inquisitions and the Catholic Church, the American Framers wrote the 1st Amendment which includes freedom of assembly and making “…no law respecting an establishment of religion, or prohibiting the free exercise thereof;…”

    In America, the “Wuhan Flu,” though it may decimate the weak and infirm, does not, in the least, approximate the severity of the Inquisitions or tribal human sacrifice.

    If the “…free exercise…” of religion includes Inquisitions, human sacrifice, serpent-handling etc., it must include the “Wuhan Flu.”

    Either the Constitution and 1st Amendment hold dominion or Professor Turley and the “Constitution deniers” do.

    People must adapt to the outcomes of freedom.

    Freedom does not adapt to people, dictatorship does.
    _________________________________________________________________________________

    1st Amendment

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    1. These are limitations on the federal Congress, not the states. Rights are not absolute either. You don’t have the right to yell fire in a crowded theater or the form an assembly that might cause other people to be infected with a deadly disease.

    2. That’s ridiculous! The first amendment was never written to allow torture and human sacrifice. Rights are not absolute and the exercise of one right cannot be construed to deprive people of another, such as life. State law at the time the Constitution was ratified surely would define human sacrifice as murder. And laws prohibiting murder were among the powers reserved to the states under the constitution.

      Furthermore the first amendment is a limitation on Congress and the federal government not the states.

      Furthermore even if the first amendment had protected torture and human sacrifice, as part of a religious ceremony, which it does not, a disease outbreak is not part of a religious ceremony. It’s merely something that could cause people gathering together for any purpose to become ill and also to pass on the disease they catch to someone else.

      1. I know most of you are ignorant to civics. In the United States, it’s not the Federal or State governments, but the individual that is sovereign. The point is that someone stands up for our Constitutional rights when they’re in danger from any government. No state ot the federal goverment can take away your rights. You have been trying your best to give them away.

        The 14th Amendment, to the constitution says that states could no longer “make or enforce any law which shall abridge the privileges or immunities of citizens of the Untied States.”

        The 14th Amendment helped to protect the individual liberty of the freed slaves from State and Local governments in the aftermath of the Civil War, but continues to impact us today. For example, 14th Amendment incorporation brought individual liberty advocates the pro 2nd Amendment ruling in McDonald v. Chicago.

    1. In Europe certain people have observed this. I will spare the national names. My hypothesis is, they don’t really care if the invasion forces get it or not. Perhaps that’s what’s quietly hoped? Just speculating of course.

  13. The “Wuhan Flu” is going to take its toll no matter what anyone does.

    It’s only a matter of time.

    You can run but you can’t hide.

    Get a cold, get the flu and get over it.

    The force to bring to bear against the “Wuhan Flu” is the human immune system.

    Survival of the fittest is axiomatic and no one gets out alive.

    Ask Mr. Market for answers.
    ______________________

    “Government is not the solution to our problem, government is the problem.”

    – Ronald Reagan

    1. It seems to me more & more people like Prof Turley’s beliefs are more aligned with places like Commie China’s govt then strictly limited Republic form of govt in which citizen’s Rights are sacrosanct.

      JT’s/other’s logic on the 1st Amd surrender, but only Big Box Corporate store are deemed essentially services is nothing short of arbitrary & capricious. And that just leads to others threats against our lives with his/their Mandatory Vaccines Crap. Ie: Right back to our 1st Amd Rights/ Religious Rights/etc., vs Govt threats of violence against us if we refuse to comply.

      Here is the latest important Commie China’s Bio-Weapon news from International law professor Dr Boyle.

      Richard Barnes is supposed to be back up tonight or one can find his show later on Banned.video.

      Here’s Boyle:

      https://banned.video/watch?id=5e93a80cdb0dae007957f8fa

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