Posts Tagged 'Rights'

What Is Marriage? On The Debate Regarding Same-Sex Marriages

The clear victory of those supporting same-sex marriages in the referendum in Ireland last month – 62% in favor, 38% against, in a country where 80% of the population identifies as Catholic – is but another bit of proof of one of the greatest and swiftest cultural and ethical revolutions ever to take place in the Western world. Ireland joins 19 other independent countries and another 36 US states that have already confirmed the right of LGBT people to marry, and it seems that there is no way anymore to stop the fundamental change in how the West views the institution of marriage.

And indeed, we must understand that this is what we are talking about. The West is changing, or recognizing the change in the institution of marriage, so that the right to marry will also apply to those wishing to wed someone of their own sex. The connection of this issue to rights is about to be determined by the United States Supreme Court, which announced in January that it is willing to rule on several petitions submitted to it regarding the prohibition by some states in the Union on same-sex marriage.

The justices will rule on two questions: a) Does the US constitution require each state in Union to allow gay people to marry; b) May the states disallow this, but are obligated to recognize such marriages performed in other states of the Union. The rulings will be handed down this month. The first question which the judges will rule on is significant, because it attempts to determine the value basis of the whole issue, and in fact determine whether same-sex marriage is a right reserved to any and all citizens, and one which no single state of the Union may infringe upon. Thus, for instance, many supporters of same-sex marriage compare the option of such marriage with that of interracial marriage, which in the past was prohibited by many states, and since the 1967 Loving v. Virginia ruling is not only permitted, but prohibiting it is considered an unconstitutional violation of one’s civil rights.

Personally, I support same-sex marriage, but I don’t think it’s equivalent to interracial marriage. I think this is a different sort of dispute, a distinction which I will try to explain below. Most of all, I would like to answer a basic question: What, in fact, are we arguing about?

So what are we arguing about?

One can oppose same-sex marriage on many grounds: Religious prohibitions, concern for the well-being of society, simple conservatism as a guiding principle and of course – homophobia. One can also support same-sex marriage out of indifference, seeing progress as a value, adherence to the principle that anyone is entitled to marry whoever they like as a basic right, libertarianism regarding any interference of the state in one’s personal life as abhorrent or of course due to a-priori sympathy to the gay community. I won’t address all the possible combinations of these opposing positions, but only what I see as the central issue in most debates on the matter, which despite its centrality is not clearly worded. In order to do so I will use an article* * by Sherif Girgis, Robert P. George and Ryan T. Anderson published a few years ago in the Harvard Journal of Law and Public Policy (here in pdf) and later expanded into a book titled What Is Marriage?

And that is indeed the question: What is marriage? The authors open their article by presenting two different concepts of the institution of marriage.

  • Marriage according to the traditional view: “Marriage is the union of a man and a woman who make a permanent and exclusive commitment to each other of the type that is naturally (inherently) fulfilled by bearing and rearing children together. The spouses seal (consummate) and renew their union by conjugal acts—acts that constitute the behavioral part of the process of reproduction, thus uniting them as a reproductive unit. Marriage is valuable in itself, but its inherent orientation to the bearing and rearing of children contributes to its distinctive structure, including norms of monogamy and fidelity. This link to the welfare of children also helps explain why marriage is important to the common good and why the state should recognize and regulate it.”
  • Marriage according to the revisionist view: “Marriage is the union of two people (whether of the same sex or of opposite sexes) who commit to romantically loving and caring for each other and to sharing the burdens and benefits of domestic life. It is essentially a un‐ ion of hearts and minds, enhanced by whatever forms of sexual intimacy both partners find agreeable. The state should recognize and regulate marriage because it has an interest in stable romantic partnerships and in the concrete needs of spouses and any children they may choose to rear.”

The institution of marriage has undergone many incarnations throughout human history, but I believe that what is called the “traditional view” here is the one that has been with us since the Roman Empire (and to a certain extent the Jewish sages as well) and was passed on to Christianity and the entire Western world. It is heterosexual monogamy based on the desire and need to produce offspring. The couple enters into this framework based on criteria of religion, class, race and nationality, and their subjective feelings for one another have no real significance.

It is not difficult to find evidence for the fact that producing children (as working hands, but mostly as heirs) served as the foundation for the traditional institution of marriage. Thus for instance in Jewish halacha, which allows a husband to divorce a wife if she hasn’t given him children within ten years, or the laws of the Roman Empire which rewarded married couples with children, particularly those with three children or more. Marriage, as we see, was fashioned around the couple as a fertility and child-rearing unit. In fact, the authors of the article suggest that had heterosexual intercourse not been necessary to produce children (if, for instance, humans could multiply by division, like cells, or by planting their seed in the ground), the institution of marriage would never have been formed in the first place.

The revisionist position sees the union of the couple as a way to confirm, nurture and maintain their romantic feelings. A necessary condition thereof is for the couple to love each other, and without mutual love the marriage is considered worthless. The couple is supposed to choose each other on the basis of their emotions and mutual sexual attraction, and sometimes on the basis of the intuition that “this is it”.

Such marriages are not based on the desire or need to have children (although these are often considered part of such a marriage), and in any event take no heed of any criteria of religion, class, race or nationality, which have to do with the continuity of the relevant group of reference. Since they are based upon an emotional connection, when that falls apart, usually the marriage does too, whether or not the couple has children. Even lenience (and at times even encouragement) toward non-monogamous acts are to be understood, since if emotion is the basis of the relationship, it can also be the basis of deviating from it.

I hope the picture is becoming clear. One who adheres to the revisionist view on marriage does not comprehend why someone else should care whether or not members of the same sex marry each other. After all, they love each other, and how is their love any less valid than that of a heterosexual couple? Such a person will also fail to understand how confirming gay marriage threatens the institution of marriage in any way – on the contrary, for now even more people will confirm the model offering love-based relationships!

But to those adhering to the traditional view, this is not about expanding the institution of marriage, but about changing it in a very fundamental way. Instead of a coupling based on the desire to produce and educate the next generation, coupling becomes detached from the need or desire to have children, and is based on emotion. Instead of a creating a family unit we create an emotional echo chamber, and instead of the basic heterosexual dichotomy we now entertain couplings that do not meet the conditions for fertility.

So the main dispute is not one between homophobes and LGBT-friendly individuals (although there are undoubtedly many homophobes among us), but one between people who believe in two different and disparate models of marriage. That is why there is no similarity to interracial marriage. The ban on interracial marriage prevented different groups from entering the traditional definition of marriage, based on a racial division (and racist values). The lack of option in the State of Israel for inter-faith marriages also hinders the ability of couples to enter the traditional definition of marriage, this time on the basis of a religious division (and values that are sometimes racist, sometimes cultural). That is to say, this is a prohibition the object of which is to differentiate between certain populations. On the other hand, the prohibition of same-sex marriage expresses an opposition to changing the very institution of marriage from the traditional to the new. This is a prohibition based in the desire to maintain a certain cultural institution.

from Wikipedia, press picture to get to original

And what about arrangements such as “civil unions”?

The wish of various Knesset members to promote a “civil union” law, that will grant same-sex couples equal rights as heterosexual ones, but will not name their union “marriage” is based on the above distinction. We’ll maintain the cultural institution, they say, but grant the rights. This is significant progress, and a position I find to be legitimate (one, incidentally, also held by the Pope.) In fact, if we accept the arguments presented above, we can even argue that there is no need to grant equal rights, for the state may decide to which types of relationship – as opposed to population groups – it grants benefits.

Thus, for example, the state may decide whether it grants benefits to a couple consisting of an elderly mother and her caretaker daughter. The connection between them is of course deep and built of emotion and mutual commitment. Do they not deserve the same rights as a married couple? Maybe so and maybe not, but this is a decision for the political system to make. We know, for instance, that the state grants benefits to a couple consisting of a young mother and her baby daughter. Such a relationship is known as “single motherhood” and the state chooses to recognize it and offer assistance.

Thus, if we’re not talking about marriage (but about a “civil union”), the state can show consideration to the relationship of two men who love each other, but supposedly it can also choose not to show it such consideration. On the other hand, if we’re talking about marriage then the state must give these couples all the benefits due to them as married couples. Therefore the civil union law which includes equal rights is a relatively progressive one. Of course, accepting same-sex relationships as marriage will constitute recognition of marriage as based on the revisionist view, and thus a much greater change. It is precisely that question which will be decided by the ruling of the US Supreme Court. Is the union of two gay people marriage (and then the state has no right not to give a gay couple all the benefits, nor the right to refuse to register their union), or not.

Is marriage part of everyone’s basic human rights?

In December of 1948 the Assembly General of the United Nations included the right to marry in the Universal Declaration of Human Rights which was confirmed by the Assembly. The document, which has since served as a universal and ideal model of human rights, states in Article 16 that "Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.” (It would seem that the lack of option for citizens of different religions to marry in Israel is a violation of this right.)

Ostensibly, there is no reference here to the nature of the relationship – whether hetero or homosexual – although it is hard to believe that the authors of the declaration imagined the possibility of same-sex marriage. A sub-section of the same article speaks of the proper protection of the family as the basic unit of society. It would seem that such an approach strengthens the traditional definition of marriage, which refers to a couple union for the purpose of having children. Of course, it is also possible to change the definition of a family, and many today do indeed believe that a same-sex couple with children is a family for all intents and purposes.

In her book** about the formulation of the declaration, Mary Ann Glendon writes that this section raised quite a few disputes. At first the American delegation did not understand why it was needed in the first place. The Saudi delegation and those from other Muslim countries saw the emphasis on the equal rights of each of the couple (see the declaration) a back-door imposition of “Western values” into the matter. The article was eventually ratified as worded above, and in 1967 it was bolstered by the US Supreme Court when it ruled, in the case that prohibited bans in interracial marriage (Loving v. Virginia), that “[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men”. If we agree with the SCOTUS that this is a vital element of the pursuit of happiness, we are well on the way to viewing marriage as a basic right, whether the couple is heterosexual or homosexual.

Why I support same-sex marriage

I wrote here about great changes in the model of marriage should the position be accepted that same-sex couplings are marriage. But if we think about it we will see that in fact, these changes have already happened, utterly independent of the gay community. In the past hundred years, and definitely since the mid-twentieth century, unions between heterosexual couples take place on the basis of mutual feelings and emotions. We no longer marry based on criteria such as class or religion (these have an impact of course, but not an overwhelming one), and we are appalled by the notion that our parents should match us off based on economic and sectarian interests. Basing our marital ties upon emotion also explains, as mentioned above, the dramatic rise in divorce rates. What matters is how we feel, not the possibility of having and raising children.

It follows that the traditional position on marriage has already been rejected, in effect, by most of the people in the West. This also explains the rapid change in public opinion as to gay marriage: Once the general collective homophobia was reduced (following various social changes and years of struggle, of course), it was only natural that people for whom marriage is based on the revisionist view saw no reason to bar LGBT people from joining in (one may assume that this is what happened in Ireland). It would therefore be incorrect to say that legalizing same-sex marriage would be a revolution in the meaning of marriage. In addition, it would be unfair to let only heterosexuals enjoy/suffer from the new position on marriage and bar LGBT people from it. This is the first reason I offer for supporting same-sex marriage.

In a wider view, the change in the essence of the institution of marriage is concurrent with many other social changes (such as the advent of the field of psychology, or the rise of contemporary spirituality), and in the end it is also concurrent with the rise of the human rights discourse. These changes stem from the relocation of the centers of authority, meaning and identity in Western society from the external world to the inner one, that is from religious and social institutions to our psychological lives. More and more, we define ourselves and find meaning in our lives by what happens within us, and less and less by our place in the social array, or our ethnic/religious/class identity. The very fact that one’s sexual preference is a central part of one’s identity shows how much the internal has become what defines us.

Knowing the importance of our inner world and the identity derived from it, we show other people all sorts of considerations regarding these. Thus, for instance, the right to freedom of religion and conscience is (also) based on the perception that faith and conscientious determinations are an essential part of an individual’s identity, and that he or she must be allowed to express them as freely as possible. In a similar fashion, it is important to allow those whose identity is LGBT to express it as freely as possible. The reasoning here, the second I offer for supporting same-sex marriage, is based therefore on the recognition that this is a field parallel to others (religion, conscience, expression), which we also consider deserving of special protection. LGBT people deserve the right to marry because this is a deep expression of their identity, and therefore, a basic right.

Finally, as a religious person, to me marriage is a form of consecration before God. My third reason for supporting same-sex marriage is that I want religious people who happen to be LGBT to have the possibility of consecrating thus. While one can argue that this should have nothing to do with one’s registration at the Ministry of Interior Affairs – let everyone have whatever religious rite they wish etc’ – it can conversely be argued that there is significance to formal recognition of the state for different religions. That, after all, is precisely the argument of some religious people who oppose the recognition of same-sex marriage. That is why they oppose it.

In the end, in order to decide our own position on the issue of same-sex marriage, we must answer two central questions: First, we must ask ourselves what in our view is the institution of marriage? Why does one get married? What establishes the relationship of married people? Second, we must ask ourselves whether we believe that marriage is deeply related to one’s identity and some essential meaning in one’s life. If we believe that marriage is first and foremost a union of hearts, an emotional bond of love, and/or if we believe that marriage is deeply connected to our identity and to the meaning of our lives, then it is incumbent upon us to support same-sex marriage.

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* “What Is Marriage?”, Sherif Girgis, Robert George & Ryan T. Anderson, Harvard Journal of Law and Public Policy, Vol. 34, No. 1, pp. 245-287, Winter 2010

** A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights

About The Indiana Law Allowing Business Owners to Refuse to Aid A Gay Wedding

A new law scheduled to go into effect in the state of Indiana in July, the “Religious Freedom Restoration Act”, is supposedly intended to protect the freedom of religious faith of the people of the state. However, it has met with harsh criticism as it is seen as a license to discriminate against LGBT people. The law is not intended to allow discrimination against gay people simply for being gay, but will apparently allow business owners to refuse to serve gay couples seeking to marry – for instance wedding hall owners opposed to such an event held on their property.

According to the New York Times’ analysis, the law allows companies and individuals to refuse to provide service that will place a “substantial burden” on their religious beliefs. Should their refusal land them in court, the judge would have to balance the burden upon their religious beliefs and the state’s desire to prevent discrimination. CNN’s legal analyst believes that the law will not allow people to decline to serve individual gay persons, but will probably enable people to refuse to aid in any way the celebration of a gay wedding. The issue has already drawn furious protests by the gay community, and condemnations from various activists and politicians (such as Hilary Clinton). The Governor of Connecticut has promised to sign an order banning trips subsidized by his stte to Indiana, as has the Mayor of Seattle. Apple CEO Tim Cook wrote an article decrying the bill, and Ashton Kutcher and Miley Cyrus are tweeting with the hashtag #boycottindiana.

Israeli readers might recall a similar case to come before the Israeli bench. In 2012 Judge Dorit Finestein imposed a 60,000 ILS fine on the guesthouse at Moshav Yad HaShmona, which has refused to hold the wedding of Tal Yaacobovitch and Yael Biran due to their sexual orientation. “The Judge noted that the object of the fine was not only to compensate the couple, but also to educate the public at large in values of equality and human dignity” (from an article by Ilan Lior in Haaretz.) This case had to do with a wedding hall belonging to Messianic Jews, whose faith stood in opposition to the nuptials in question.

Would we accept a wedding hall owner unwilling to rent his hall to a wedding of Blacks/Mizrachis/Jews? Of course not, and in Israel, like in many democracies around the world, there are many laws prohibiting discrimination on the basis of race. What about a wedding hall owner who won’t rent his hall to an interracial wedding? Of course, those same laws will prohibit that as well. And what of a hall owner who won’t rent his hall to religious people? Or secular ones? I think we would not accept such a reality.

So ostensibly, we are unwilling to countenance discrimination against service seekers. But the matter is not so simple. I think none of us will insist that a private service provider (not a public official or public service) has no right, under any circumstance, to refuse service to a customer. Thus, for example, there have been several cases in which clergymen (not business owners) have been sued for their refusal to marry gay couple – which is completely absurd in my opinion. Must a lawyer accept any client, even those he believes to be immoral criminals? Must a plastic surgeon provide breast enlargement to any woman who shows up at his clinic? How can we force a private person to take on a client whom he or she not only doesn’t want to serve, but ones they believe they must not serve?

But let’s focus on halls and weddings. Consider the following example:

You own a wedding hall. You’re an ultra-orthodox Jew. You have a religious problem with renting the hall to Jews on Friday nights and Saturdays, because you believe that Jews are obligated to keep the Sabbath, and you are unwilling to aid in what to you is a transgression. Likewise, you won’t rent the hall to Jews who want non-kosher food catered. You have no problem renting the hall to non-Jews on the weekends or having non-Jews have non-kosher food catered, and of course you have no problem renting to Jews in general.

Should you be allowed to operate this way?

Here’s another example:

You own a wedding hall. You’re an atheist and a feminist. You have an ideological problem with renting your hall to religious folks who practice gender separation. You don’t want your hall to feature men sitting apart from women, or only male waiters to serve men and only female waiters to serve women. You have no problem with renting the hall to religious people, but not if they practice such separation. The same goes for religious weddings of minors, age 17, let alone 14. That will not happen in your hall.

Should you be allowed to operate this way?

Here’s another example:

You own a wedding hall. You’re vegetarians, or maybe vegans. You don’t offer catering service in your hall, and you allow your clients to hire outside catering services. Although you strenuously object to eating meat, you realize that most people are meat eaters, and are willing to have couples marry in your hall with catering that includes meat. One day a couple comes in wishing to rent the hall. While talking with them you realize that they intend to have catering that serves lobsters. In order for the lobsters to be fresh (and for the added spectacle), they intend to place a giant aquarium in the hall in which the living lobsters will swim, until taken out and thrown live into vats of boiling water. This is too much for you, and you inform the couple that they cannot rent your hall.

Should you be allowed to operate this way?

Here’s another example:

You own a wedding hall. For political and moral reasons, you strenuously object to Israel’s control of the West Bank. You boycott products from the settlements, and won’t rent your hall to people who live in settlements.

Should you be allowed to operate this way?

Here’s another example:

You own a wedding hall. You strenuously object to marriage between Jews and non-Jews. For you it’s really not a racial matter, but one of religion and tradition. It is important to you to prevent what you view as a destructive process of diluting and even destroying the Jewish people. You won’t rent your hall for weddings between Jews and non-Jews.

Should you be allowed to operate this way?

Not all of these examples are matching, and we should distinguish them from one another. There is a difference between discriminating against customers on the basis of their race/ethnicity/religion and discriminating against customers on the basis of their actions. The difference stems from the fact that a person’s origin or religion are a deep and essential part of their identity, whereas their actions are not usually a part of their identity. A large part of the human rights discourse is based on what we perceive as sources of identity and deep meaning in our lives. The freedom of expression, for instance, is important not only for the existence of a healthy society with a plurality of opinions and a capacity for self-criticism, but also because one’s ability to express one’s opinions is a central part of one’s self-perception, and one’s dignity. Likewise the freedom of religion and conscience, or most simply put the physical wholeness of our body.

Therefore refusing to rent a hall to someone who boils lobsters alive is not tantamount to refusing to rent a hall to Jews. Likewise, one’s desire to keep one’s hall from hosting a violation of the Sabbath, or the serving of non-kosher food, is not an unfair discrimination, but a protection of one’s religious faith.

And what of a boycott against settlers? Here the matter is more complex. There are people for whom living in Judea and Samaria is a deep part of their identity. They’re not just located in the occupied territories – they are settlers. This is how they perceive themselves; it is a central part of their identity. They view it as a high value and take pride in it. On the other hand, it seems to me that the settler identity is weaker than a Jewish or LGBT one. This is an intermediate case. Is it permissible to discriminate against settlers and refuse to do business with them? When the Boycott Law was passed in Israel, banning calls for boycott based on place of residence, many (myself included) saw it as a base and undemocratic attempt to legitimately oppose the occupation. It seems that many people believe that a private business owner (or consumer) should be allowed to boycott settlers just for being settlers.

Now undoubtedly, homosexuality is a matter of identity, and not of sexual activity. Sexual orientation is considered nowadays as a deep element of a person’s identity, and therefore a central dimension of one’s self-perception and basic dignity. This is why we take such offense at discrimination against LGBT’s – because the logic at the foundation of the human rights discourse leads us to the conclusion that they have equal rights exactly for who they are.

Is it therefore wrong for a private person to refuse to provide a service for gays wishing to get married? Let’s say that person is willing to rent his or her hall for a gay or lesbian person’s birthday party. They have no problem with homosexuality in and of itself – they are not homophobes. They question is must we force such a person to rent their hall specifically for a same-sex marriage, which is to say for the performance of an act they hold to be immoral/contrary to the commandments of God.

Let us compare it to a person unwilling to rent their hall for a wedding with gender separation. By so doing he is basically banning from his business all ultra-orthodox people and most national-religious ones. Is this permissible? We may think it isn’t, and that we should force him. Perhaps we also think same-sex weddings shouldn’t be refused, and that we should force individuals for whom this is against their world-view to rent their hall.

On the other hand, perhaps we think one must not refuse a LGBT wedding but may refuse an ultra-orthodox one. I think that is a legitimate stance, but we must understand that it stems from a particular liberal conception and carries a particular liberal agenda. This is about furthering an agenda based upon the growing discourse of rights, with the position being that the point the discourse of rights has reached in our times is the point to which the law must move. One may refuse to host an ultra-orthodox wedding because they harm the rights of women, and one must not refuse to host a LGBT wedding because their right to marry must not be abridged.

From another perspective one may say that what we have in the last example is an agenda of secularizing the public sphere, like the law forbidding covering one’s face with a burqa in France or the law banning the construction of mosque turrets in Switzerland, that is, a law that consciously overrides a certain religious obligation (in this case the prohibition on same-sex marriage) in order to promote a more secular public sphere.

This is not my position, but as mentioned above I believe it’s a legitimate position. What I’d like to stress is that it is a position. Meaning that there is ideological baggage (let’s say, one promoting liberal democracy and/or secularism). Therefore to the same extent we must recognize that there is nothing obviously true here, and that there can – and should – be public debate between this position and opposing ones.

Rejecting religious or LGBT customers because the nature of the weddings they hold is immoral in the opinion of the hall owner will most likely be perceived by the rejected as a rejection of their identity, and is therefore a very harsh act. However, it can definitely be argued that the rejection is not of religious or LGBT people, but only of the specific act they commit in marriage. Of course this act too reaches far deeper into their identity than eating live-boiled lobsters does into the identity of the diner. This is a far more essential expression of “who they are.” And yet, it can be argued that this still doesn’t turn the rejection of their wedding into a rejection of them. The wedding hall owner can claim to have no problem with observant people or gays, but only with the way they marry.

The context also matters here. If the group discriminated against is a small, weak one which is ostracized by most of society, there is cause for the law to protect it. For instance, if LGBT people were rejected by 90% of wedding halls, and had no reasonable option of holding their weddings, there would be reason for a law to protect them and force hall owners to rent them their halls. I believe the reality is opposite. Hall owners unwilling to rent their halls to same-sex weddings are a minority, and the moral-religious position they hold is becoming less and less accepted in the Western society of our time. See above for a very partial list of those protesting the new law in Indiana to get a picture of the forces that are up against its defenders.

I believe that LGBT people have the right to get married, that is to say, that this is a basic right, and therefore I thing the state should be required to allow same-sex marriage by law (I hope to write about the underlying principles of this sometime). On the other hand, I think that under current conditions, where there is no shortage of halls and officiators who would be glad to host or conduct a same-sex wedding, private business owners should be allowed to retain their beliefs and refuse to hold same-sex weddings in their businesses. This is because society has an interest and an obligation to allow individuals to freely preserve and express their religious and/or moral convictions.

This issue isn’t simple. It involves religion and politics, private morals and legal ruling. It also mixes a certain social perception with a certain political culture, and also a contextual analysis of the facts on the ground. The law in Indiana which allows private people to refuse to take part, as business owners, in a same-sex wedding, defends their private notion of what is good, and this is important. It does not relieve them of the need to justify it, if required, in a court of law. It also does not prevent protests, and even boycotts, by the general public against them. I find this to be a proper balance.

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(I Thank Yael Peled for her enlightening comments on a draft of this article. Of course, all opinions and errors are mine.)


Tomer Persico

“The blog of one of the conference participants, Tomer Persico, has made him one of the most consistently interesting observers of Israeli religious life.”

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