Three Things: SCOTUS on LGBTQ+ Discrimination, Qualified Immunity, Gun Rights

Very big SCOTUS day today. Huge — and that’s in spite of the court declining to hear cases on multiple issues.

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In BOSTOCK v. CLAYTON COUNTY, GEORGIA and two other cases, the Supreme Court ruled in 6-3 decision that firing an employee for being gay or transgender violates the Title VII of the Civil Rights Act of 1964.

Title VII (42 USC § 2000e-2 [Section 703]) reads,

It shall be an unlawful employment practice for an employer –

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin;

Dissenters were Justices Kavanaugh, Thomas, and Alito; Alito filed a dissenting opinion which Thomas joined. Kavanaugh also filed a dissenting opinion.

Overview of the three cases from Human Rights Watch:

In R.G. & G.R. HARRIS FUNERAL HOMES v. EEOC and AIMEE STEPHENS, Aimee Stephens worked as a funeral director at R.G. & G.R. Harris Funeral Homes. When she informed the funeral home’s owner that she is transgender and planned to come to work as the woman she is, the business owner fired her, saying it would be “unacceptable” for her to appear and behave as a woman. The Sixth Circuit Court of Appeals ruled in March 2018 that when the funeral home fired her for being transgender and departing from sex stereotypes, it violated Title VII, the federal law prohibiting sex discrimination in employment.

In ALTITUDE EXPRESS INC. v. ZARDA, Donald Zarda, a skydiving instructor, was fired from his job because of his sexual orientation. A federal trial court rejected his discrimination claim, saying that the Civil Rights Act does not protect him from losing his job because of his sexual orientation. In February 2018, the full Second Circuit Court of Appeals ruled that discrimination based on sexual orientation is a form of discrimination based on sex that is prohibited under Title VII. The court recognized that when a lesbian, gay or bisexual person is treated differently because of discomfort or disapproval that they are attracted to people of the same sex, that’s discrimination based on sex.

In BOSTOCK v. CLAYTON COUNTY, Gerald Lynn Bostock was fired from his job as a county child welfare services coordinator when his employer learned he is gay. In May 2018, the Eleventh Circuit Court of Appeals refused to reconsider a 1979 decision wrongly excluding sexual orientation discrimination from coverage under Title VII’s ban on sex discrimination and denied his appeal.

The dissent weighed in at more than 140 pages out of the entire 177 page syllabus and decision handed down by SCOTUS today.

The first sentence of the dissent:

There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.

Right-wing ideologues are in a furor over Justice Gorsuch’s delivery of the opinion. They must have had absolute faith in Gorsuch to be so incredibly outraged that his interpretation didn’t sustain bigotry. He wrote,

An employer who fired an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids. Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. Only the written word is the law, and all persons are entitled to its benefit.

Today’s decision doesn’t end all discrimination against LGBTQ+ persons, only employers defined by Title VII. There is still a need for more legislation to ensure all persons in this country may rely on the same rights in housing, credit, property ownership and more. The House passed the Equality Act in May 2019 to address these shortcomings; the bill is now languishing on Senate Majority Leader Mitch McConnell’s desk in spite of support for the bill from 70 percent of Americans.

Steve Silberman noted a trait shared by two of the three dissenting jurists:

One of the most passionately angry voices today:

“Bungled textualism.” ~chuckling~

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The SCOTUS declined to hear cases seeking reexamination of the doctrine of “qualified immunity.” Thomas was the lone jurist who wanted to hear cases; in a six-page dissent he wrote, “qualified immunity doctrine appears to stray from the statutory text.”

There will be greater pressure on lawmakers to address qualified immunity in legislation.

Opinion piece about qualified immunity:

Rep. Ayana Pressley on qualified immunity:

~ 1 ~

The SCOTUS declined to hear multiple Second Amendment cases after it avoided addressing New York City’s regulation of guns back in April because the city repeal of the restriction render the case moot.

Justices Thomas and Kavanaugh dissented, wanting to hear a case related to New Jersey’s regulation of concealed carry guns.

~ 0 ~

There’s actually four things today — SCOTUS also declined to hear the Trump administration’s petition regarding California’s SB 54 which prevents the state’s law enforcement resources from being deployed to aid federal immigration enforcement. Alito and Thomas dissented, wanting to take up the matter; surprisingly, Kavanaugh voted with Roberts and Gorsuch to decline.

We are still waiting for a decision on Deferred Action of Childhood Arrivals policy (DACA), which could cost the U.S. as many as 27,000 health care workers at the worst time possible if SCOTUS finds DACA unconstitutional.

This is an open thread.

59 replies
  1. Rayne says:

    And before anybody asks what “LGBTQ+” means: it’s a shortened initialism of “Lesbian, Gay, Bisexual, Transgender, Transsexual, 2/Two-Spirit, Queer, Questioning, Intersex, Asexual, Ally.”

    Sadly, Aimee Stephens and Don Zarda died before today’s decision. May they rest in power.

  2. Rugger9 says:

    It was interesting indeed to hear the RWNM howl and screech about the discrimination decision. Seriously, though everyone has equal protection of the law under the 14th Amendment, so if it is textualism they want, start there.

  3. BobCon says:

    It’s interesting to me that the Bostock ruling came just a few days after the anniversary of Loving v Virginia.

    It took almost 30 years for a majority of Americans who were polled to approve of interracial marriage after Loving, but polling suggests that a majority of Americans today support the general idea of workplace protections for LGBTQ people.

    I think there is a general lack of understanding by liberals (and the DC establishment) how far out of the mainstream the conservative majority is. Not just in terms of present views, but in terms of the direction the country could be heading.

    Liberals have ceded the battlefield of the courts to conservatives, and they really need to think about how to stretch their goals beyond incremental change and defensive battles. They need to make the conservatives on the court understand that there will be an electoral price to paid by their compatriots in Congress and the state houses for their radicalism.

    Right now Democrats only talk about piecemeal issues and the public has no sense of how radical the Supreme Court majority is, but I think there is an opportunity to cast them in a much more honest light that will curdle public opinion and make efforts to rein them in, and supplant them down the road, much easier.

    • PhoneInducedPinkEye says:

      This, this, this! They are the “dead hand of the Kremlin” of the current gen of neo/paleocons – waiting to revenge themselves on the next few generations. The SC cannot, absolutely cannot, be ceded or ignored regardless of what norms are shattered if repubs ever lose control of the Senate. If that happens, it is worth every ounce of political capitol to reform the SC.

  4. PhoneInducedPinkEye says:

    Every time Roberts pretends he isn’t playing Calvinball on an issue the GOP doesn’t need a ruling on to keep elections rigged, he is giving the conservative talking head class fodder to create cover stories with. “See? These fedsoc judges really do just call balls and strikes.” And that becomes the narrative, his gutting of voting rights, transmogrification of companies into people, and and all their other sins memory-holed.

    Still a good thing this didn’t go the other way. Maybe they were afraid of us rioting.

    • DrFunguy says:

      Alsotoo: stoking turnout in the fall. ‘See, we still don’t have enough conservative judges, er, they aren’t conservative enough!’

      • Ironic Chef says:

        It is hard to see how these SCOTUS decisions are going to affect voter turnout. Given the GOP and the evangelicals (that are an important part of its base) made a Faustian bargain to get those SCOTUS seats, seeing Gorsuch and Roberts stab them in the back may curb their enthusiam to vote.

        [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. This is your second user name. Thanks. /~Rayne]

  5. Nehoa says:

    I am definitely a “Hardend Democrat.” 30 40 years ago there were many Republicans I respected and could have an intelligent conversation with. Not for the last 25 years.

    Death to the GOP. A different party needs to take their place. We need balance, but we don’t need the proto-fascists/racists we have today in the GOP.

    I am not antifa, but I am anti-fascist. Fuck you Billy Barr.

  6. James says:

    Nehoa above:

    There have never been Republicans I respected. All my life they have been in service to power and racism.

    I was only four when Barry Goldwater gave his nod of support from the Ku Klux Klan and the John Birch Society. Seven when Richard Nixon launched his Southern Strategy to win over racists in the South, followed by the stampede of racists to the GOP in the following years.

    I was in the Navy when Ronald Reagan launched his campaign on the site of the lynching of Civil Rights workers in Mississippi, and when Pat Robertson in his primary challenge was calling for rounding up atheists. Jerry Falwell’s so-called Moral Majority was busy trying to remake the nation from a Christian nation to a Christian state.

    They spent decades denigrating science, defunding public schools, attacking single mothers (my mother as a war widow fits in that category). They courted fascists and Nazis all my life. Their voters went along with all of that.

    When I lost my seat on my village board as chairman pro-tem (vice-mayor) in an election decided by two votes in 2018, it was because the open neo-Nazi candidate running against me only ran on one plank: Do you still want an atheist representing our town? That was all it took, even though as an open and notorious DSA member I was reëlected in 2014 (so it wasn’t the scary socialism).

    I just turned sixty a few days ago. Now a bunch of people in my town are having second thoughts on who they put on the board and several have asked me to run to gain a seat. I decided not.

    I have never seen a Republican stand up for things which are merely policy differences, only hatred and racism in service to the rich.

    • P J Evans says:

      Pete McCloskey. He dared to run against Nixon in the primaries, and the GOP put up a candidate to run against him in his (bipartisanly gerrymandered) district. He walked the added section, had a booth in the county fair, and won re-election.
      He switched to the Dems back around 2000.

  7. Mitch Neher says:

    Gorsuch wrote, “Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”

    I’m sorry, but . . . There’s something “loopy” about imagining the limits of somebody else’s imagination. Unless Gorsuch is remembering Scalia’s prior complaint against same-sex marriage that [paraphrased] “nobody ever would’ve thought . . . . . . [something unthinkable] . . . . . . [that The Amazing Antonin was just then thinking] . . . ”

    Huh? What? How do they know such things? And who are they really?

    Gorsuch quickly added, though, that, “Only the written word is the law, and all persons are entitled to its benefit.”

    Well, yeah. Even I can see the problem, there. If they didn’t write the law down somewhere, then . . . . . . somebody else could just make the law all up off the top of his or her head as he or she was going along.

    Shoot. I could do that. And–unlike Trump–it wouldn’t bother me in the slightest if nobody paid my legal imaginings any mind a tall.

    Honest. I swear.

    • Manwen says:

      I believe Gorsuch arguments make sense if seen in the context of the broader legal debate about constitutional interpretation. Gorsuch professes to be a textualist, and not a contextualist. In many ways this decision was a useful barometer to see whether or not Gorsuch was going to stay true to his legal philosophy or bow to the social philosophy dominating the current leadership of the GOP. These arguments answer that question. Gorsuch is answering those who claim to know the intent of Congress based on the legislative intent implied by the debate. There are those who say that Congress in 1964 was eliminating discrimination against women in employment. Conservatives and liberals alike rely on this method to determine the intent of a statute, and if that can be discerned, they defer to the intent. It is an argument I am confident Scalia would have made were he around to make it. Those who thought Gorsuch was an acolyte of Scalia who was a professed contextualist were mistaken. Gorsuch reads the text as it is written and interprets accordingly. Applying that to this case, reveals that this will likely be his path going forward. This raises the question of what he will do with future gun regulations. Scalia, the contextualist, ruled D.C. could not restrict hand gun ownership largely because the opening words of the amendment, “a well-regulated militia, being necessary to the security of the state,” to mean the well-regulated part as being “merely prefatory” based on his understanding of the early days of the Republic. I think it will be very interesting to see if Gorsuch will repudiate Scalia at some point on the second amendment because he is a “textualist.”

      • Mitch Neher says:

        I agree that Gorsuch’s argument repudiates Scalia’s position. I also agree with the conclusion that Gorsuch’s argument reaches.

        Nevertheless, given that the context in which a given word is presented in a given text limits the possible meanings of that word–whether intended or otherwise–it would follow that Gorsuch did not arrive at that agreeable conclusion without considering the context in which the word at issue–sex–was presented in the text of the CRA.

        P. S. I have reason to believe that the statement above is a permissible use of the fallacy of petitio principii.

        • vvv says:

          So you’re saying, as an aside, that you don’t have to ask if you have the right to ask if “the fallacy of petitio principii” is the right question, nor, incidentally, to say it is so.

          Got it. ;-D

          • Mitch Neher says:

            I’m not getting what you’re getting at.

            Can you explain it to me?

            P. S. If it were up to me–which it isn’t . . . but supposing otherwise–you’d have the right to beg whatever questions you’d like to beg.

            • vvv says:

              Because people get it all confuzzed, I like to use the phrase, “begs *for* the question” to really mess ’em up.

  8. d4v1d says:

    Two interesting things I draw from Rayne’s bullet list. 2) The Supreme Court takes up cases that in which both parties have reasonably valid but mutually exclusive claims. Except when they don’t. 1) I can see why a business, especially one in the south, wouldn’t want to make its potential customers uncomfortable, potentially costing it business – this is not, from the standpoint of the business – a weak argument; in theory this would be a very costly employee. (Where I live, and to me personally, this is not an issue.) The Law of Unintended Consequences, unfortunately, means this equitable decision will result in pernicious pre-employment background checks, a spike in contract employment, or both.

    • Rugger9 says:

      The fundamental issue for the fundies is whether being LGBTQ+ is ingrained into the soul or merely a lifestyle choice like being a Dodger fan (Cubbie fans blur this line). It’s how they justify the conversion therapies and other tortures they dream up to “save” the ones making bad lifestyle choices. However, the research clearly shows that orientation is a key part of who we are and therefore it belongs to the soul.

    • Budd says:

      I have great confidence in society’s ability to accept common things as normal. Eventually. In my lifetime (where I live), same-sex marriage has become well-accepted enough to be a dull topic of conversation. It took me until college to understand that someone’s sexual orientation was irrelevant to most of my interactions with them. I think we can get there with gender issues as well.

      • Rugger9 says:

        My kids are already there about acceptance. Not all of their generation has joined in, but it will doubtless become the new normal.

        The un-discussed side of this issue is the fact that reassignment is an expensive and never-ending process between the surgeries and the hormone therapies well into six-figure land. We will also have to decide as a society how to cover for setting things in order for our fellow humans. Not many will need this,but I can see the RWNM howling about the money like they do for deficits (when the Ds have the WH).

        • Vicks says:

          Like so many of these cultural issues that are the lifeblood of the Republican Party, the response I hear from young people is who cares?

      • Rayne says:

        It’s western society which has a problem with gender outside binary of male-female. Indigenous and Polynesian/Pacific Islander cultures have long recognized and accepted two-heart, māhū, fa’afafine/faʻatane, fakaleiti people — persons who don’t fit in polarized binary. Same in many African, Indian, Asian cultures.

        Would be nice if western society let go of its colonial perspective of gender; we are missing a range of thinking and problem-solving if we suppress anyone who doesn’t fit into one of two narrowly-defined boxes.

        • Madwand says:

          Western society or so they would like us to think, is defined by being obsessed with and hung up on sex. Too bad, there is a whole big world out there, very creative and imaginative. The colonialism comes after the pernicious religion. As an African once said, when the white man came they had the bible and we had the land, he urged us to pray, we did and when we opened our eyes we had the bible and they had the land.

    • BobCon says:

      “Law of unintended consequences” is one of those things like “slippery slope” that gets trotted out when people lack a better argument against something.

      There is no such “law” and history is full of examples where there are equal ot greater benefits to government action. The South is vastly better off economically thanks to the imposition of Title VII as far as ethnic minorities and women, and furthermore the idea that there will be any kind of measurable spike in pernicious preemployment checks or anything like that is laughable.

      There were likewise ominous warnings about “unintended consequences” of the 2015 gay marriage ruling and the 1967 Loving v. Virginia ruling because opponents were grasping at straws. We’re still waiting.

      That is not to say there will be zero challenges arising from yesterday’s ruling. Something always comes up, just as it did when businesses were required to adopt equal consideration of blacks for hiring and promotion. But this kind of rejection of bigotry is an overwhelming good, and talking about “laws” and “spikes” is a hand fluttering distraction.

      • bmaz says:

        The “law of unintended consequences” and “slippery slope” are both quite real and not merely excuses. The slippery slope as to the 4th and 5th Amendments started being argued when I was in law school, including by me after out and practicing. If you think that was not a real phenomenon, you are sadly mistaken, and the current state of law proves it.

        • BobCon says:

          As I said, they are things that get trotted out when people lack any better argument. When people have a direct argument against something, they use it. When they don’t, they use a non-falsifiable appeal to unknowns or extreme hypotheticals — given A, it therefore follows that Z.

          A valid way to approach it is to argue instead given A, it follows that we’ll see B, or even C. But the world is full of examples where not even B happens. You’ll see it in a lot of stupid First Amendment complaints — “well, technically, six sophomores waving signs at a speaker isn’t a violation of the First Amendment, but it’s a slippery slope from there to total government censorship.”

          One time it may be valid to make the argument is if you’re already well down the slippery slope or you’re in round 32 of bug fixes for unintended consequences. People fighting abortion restrictions in Louisiana have good reason to think that a new certification provision for providers is the latest in a long slide toward a total crackdown on abortion rights. At that point, it’s a case of given A, B,C,D,E,F,G,H,I,J,K,L,M,N,O,P,Q and R, it follows we’ll see Z.

          But it is silly to try to argue that there is any meaningful danger to extending Title VII protections of the 1964 Civil Rights Act that have long been in place for Afican Americans, Asian Americans, Latinx people and women to LGBTQ people.

  9. Pajaro says:

    Rayne, shocked to hear of shooting during protest in Albuquerque. Guess it shouldn’t surprise me. Per the person Nick Estes you shared tweet of, regarding the suspect shooter, is son of a county Sheriff Deputy and once ran for city council. Per Mr. Estes tweets the local police were referring to militant civil guard group as “armed friendlies” heard on police scanners. Now that is bad! Police and Sheriff’s, especially, lean too far in support for these militias. It taints their work on behalf of all. Victim is expected to recover, hopefully.

  10. bokeh9 says:

    Is this an open thread?

    About the late-show fun with Trump’s West Point speech: It was a *ramp*, not steps, and *he only stepped forward with his left leg*, then brought his right to match it. Is that a limp? And when he lifted a water glass to his lips with his right hand, he had to support it with his *left*.

    Is this accurate? Does he have weakness on his right side? It seems no one has noticed this, but was his sudden (and unexplained) trip to a medical facility some weeks ago for treatment of mini-stroke? I hate tea-leaf play-it-backwards conspiracies, but is his health a valid issue?

    • bmaz says:

      Oh, it has been noticed before. He has a long famous aversion to stairs. I have no idea what his diagnosis is. There are many possibilities.

    • Rayne says:

      It’s been noted for some time that Trump displays a collection of worsening symptoms/behaviors consistent with several possible chronic health problems.

      – stooped posture, leaning forward with arms hanging (consistent with Parkinson’s and post supranuclear palsy)
      – dystonic movements in shoulders and arms, especially right side
      – dragging right foot, occasional ‘magnetic gait’
      – inability to lift arms above head
      – difficulty grasping objects like water bottles, glasses with one hand to bring to mouth
      – inability to raise chin and extend neck to look upward (leans full body backward)
      – difficulty navigating stairs (noted in 2017) and now ramps
      – difficulty with speech including using the right words (speech apraxia, aphasia)
      – limited range of facial expression

      for starters. Some personality disorders overlap with what could be symptoms of dementia, like his lack of empathy, disinterest, mood swings (rages), so on. The folks at Duty To Warn have done just that for years now, warned Trump is experiencing a neurological and physical decline but the corporate media has studiously avoided addressing this issue until the West Point graduation and the ramp+water drinking on video.

      Comparing his past behavior with present makes his decline obvious.

      Even in the 2015 video there’s a twitch in his right shoulder — dystonic jerking motion which he integrates as cocky swagger. But the dystonic movement is now more obviously unprompted, uncontrollable.

      Media needs to stay on top of this and not shy away as it has (as it did during McCain’s candidacy, in no small part because McCain’s people harassed anyone reporting on his health). Trump is an ongoing threat to national security because he’s not mentally competent.

  11. Jenny says:

    Thanks Rayne for the open thread.

    I wonder what Roberts thinks about the political issues and the protesters today.
    June 2013 the Supreme Court ruling 5 – 4, gutted the 1965 Voting Rights Act. Roberts said, “Blatantly discriminatory evasions of federal decrees are rare.” Also stated, “Things have changed dramatically and the country has changed” since the Voting Rights Act was passed.

    Supreme Court guts the 1965 Voting Rights Act because 5 justices ruled racism in America is over. Protests continue …

    Is Roberts conscious racism still exists in this country? I wonder what he thinks about Citizens United.

    • MB says:

      Roberts was Chief Justice of the SC in 2010 when Citizens United v. FEC was decided. He wrote a concurring opinion for the majority (as did Alito) and cast the deciding vote. So I hope that answers your question about what he “thinks about Citizens United” – obviously he was very much in favor of the view that “corporations are people”…

    • Rayne says:

      Roberts can’t believe there’s discrimination against persons at the polls based on race, but he can believe there’s discrimination based on sex.

      Dude has a serious problem right there juggling those two beliefs.

  12. Lena says:

    It is disgusting that we need a court rule and a law for something that should be granted and normal..
    It is nobodys business who a person is sleeping or having a relationship with. It is called private life for a reason. Why can’t people just let others be the way there are?

  13. Rayne says:

    Vicks — in case you drop down here to look for fresh comments, I thought of you when I saw this reply to that jackass Aubrey Huff who is shouting at people to stop wearing masks.

    A-yup. Hope your mom is perking along.

    • Vicks says:

      I saw your comment the other day and googled “Aubrey Huff” I didn’t think of male toxicity when I was ranting about my mom’s surgeon but no surprise, it fits.
      In one of my snarkier emails I did state I wasn’t going to argue science with a medical professional that didn’t understand how the barrier method works.
      After watching these man-boys whine about masks as if they were being asked to wear balls and chains (Huff kept mentioning Jesus as if he wasn’t aware that the whole point of the story is was what Jesus was asked to do for others at the end) gets me thinking Trump may have tapped into some primal fear that more evolved minds can’t imagine
      Mom’s home from the hospital. The CEO (of the hospital) is to thank for her surgeon and everyone in his office agreeing to comply with hospital standards to prevent the spread of Covid, I got a thank you from his PA but the “man” himself somehow managed to get in to see her when I wasn’t around.

  14. Rugger9 says:

    It seems both Flynn and Barr’s DO”J” have responded to Judge Gleeson’s amicus brief to Judge Sullivan. Filings are at the respective links at TPM. Seems they “doth protest too much”, but IANAL. by Sherwin, Kohl and Ballantine.

    It seems we have more attorneys in Flynn’s corner, from Harvey and Binnall in Alexandria VA.

  15. Tom says:

    In the coverage of John Bolton’s new book, I’ve heard some Democrats (e.g., Adam Schiff) express regrets that Bolton didn’t make his inside information known during the impeachment proceedings this past winter. Certainly, Bolton’s testimony would have made Congressional Republicans’ defense of Trump even more awkward and cringeworthy to maintain, but I’m not sure it would have made any difference to the final outcome. I may have missed something in the news, but so far I haven’t heard any member of the GOP state anything along the lines of, “Oh, if only we had known … “

    • P J Evans says:

      Bolton wouldn’t respond to subpoenas from the House, but would from the Senate – he was looking for a friendly audience, it appears. And not really willing to talk where it would have made a difference.

  16. Jenny says:

    POV/PBS Documentary – Do Not Resist
    A vital and influential exploration of the rapid militarization of the police in the United States. Do Not Resist puts viewers in the center of the action – from inside a police training seminar that teaches the importance of “righteous violence” to the floor of a congressional hearing on the proliferation of military equipment in small-town police departments.

    NOTE: Saw this last night on the WHUT-TV channel. Produced in 2016. Not sure if and when it will return to PBS; however can be viewed elsewhere.
    Craig Atkinson director of “Do Not Resist” speaks about his film.

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