NEAL CONAN, HOST:
This is TALK OF THE NATION. I’m Neal Conan, in Washington. Today, the Supreme Court recognized a fundamental shift on equal rights for gays and lesbians. In two highly anticipated cases, the court struck down the Defense of Marriage Act, which denied federal marriage benefits to couples of the same sex, and then effectively struck down California’s Proposition 8, which means that gay marriage is now legal in 13 states and the District of Columbia.
We’ll give you the full play-by-play of all that happened today and what happens next, but we want to hear from you, too. What changed today? Tell us your story: 800-989-8255. Email us: talk@npr.org. You can also join the conversation on our website. That’s at npr.org. Click on TALK OF THE NATION.
Later in the program, Mavis Staples will join us to talk about her new album. But we begin with David Savage, Supreme Court correspondent for the Los Angeles Times and the Chicago Tribune. He joins us on the line from his office here in Washington. Busy week, David. Thank you for joining us again.
DAVID SAVAGE: Hi, Neal.
CONAN: Let’s talk first about DOMA, the Defense of Marriage Act, where a five-four majority concluded that the purpose of that law was to exclude gays from the dignity and status of marriage legally recognized by the state.
SAVAGE: Yes, and Justice Kennedy wrote a pretty strong opinion, saying that this is a – that marriage is a matter of liberty, fundamental liberty in this country, and that persons deserve the equal protection of the laws, and that this law violated both the right to liberty and equality for same-sex couples.
He talked about there’s an evolving understanding of equality in this country and this sort of new perspective. And it was very much of the way Justice Kennedy sort of views the world, is that the Constitution’s not frozen, and that conceptions of liberty and equality change over time, and that people’s ideas about gays and lesbians have been changing over decades, and that a law that might have seemed reasonable 20 years ago we now recognize is really a fundamental infringement of equality and liberty and therefore is unconstitutional.
CONAN: And he was joined with – by the four members of what we usually think of as the liberal wing of the court, the four solid members of the conservative wing on the other side and a scathing dissent from Antonin Scalia.
SAVAGE: Yes, Justice Scalia read a lot of the dissent in the courtroom. He and Justice Kennedy have really been involved in this fight for 20 years. You know, they were both Reagan appointees, both Catholic conservatives, but Justice Kennedy is very much of a sort of what you call a social liberal. Justice Kennedy – I mean, Justice Scalia is very much of a social conservative. They’ve had fights on abortion and gay marriage going way back.
And Justice Scalia, about every 10 years, has one of these dissents where he really sort of blows up at Kennedy. At one point in the opinion, he basically said Kennedy and the court are saying they’re really not ruling on gay marriage nationwide, but they really are. Don’t be fooled. It’s just a matter of time until the other shoe drops.
So Justice Scalia was the one who was really saying it’s clear where this is going. It’s going to be gay marriage legal nationwide.
CONAN: Because he suggested that the logic in the majority decision today will lead to challenges when somebody who’s married, as he put it, in Albany then moves to Alabama and wants the rights that they would have had in Albany.
SAVAGE: Yes, there’s that challenge. But also, what about the couple in Alabama who sues and says we would like to get married? And Justice Kennedy has written an opinion that says this is a matter of liberty and equality. Well, those – that couple in Alabama or Louisiana or Nebraska or wherever could go to federal court and raise the same issue.
CONAN: And as you suggested, it was equality under the law, which was a lot of the logic of the argument of the majority opinion, written by Justice Kennedy. It was Justice Scalia in his dissent who brought this back to the culture wars, if you will. He said the majority was excoriating the – those who were – voted for this law 20 years ago, and the president who signed it – that would have been Bill Clinton, by the way – and saying that they were, you know, terrible people, morally bankrupt.
SAVAGE: Yes. Justice Scalia sort of took the Kennedy opinion as a real sort of a slam at persons who supported traditional marriage. I didn’t get so much of that tone from what Justice Kennedy said. But Justice Scalia said you’re sort of impugning their decency and viewing them as bad people, and that that’s out of line.
And I’ll say one of the really odd things I thought about Justice Scalia’s dissent is he spent a lot of time talking about: Who are we, the Supreme Court, to be striking down a law that had broad support in Congress and the support of the president? Well, you know, yesterday, that’s exactly what Justice Scalia did, striking down the Voting Rights Act. He was in favor of striking down laws yesterday, but not today.
CONAN: And let’s turn to the other decision, Proposition 8. In this case, of course, it was the state of California said we’re not going to defend Proposition 8 in federal court because, well, we don’t think it’s constitutional. And so then there was the sort of ad hoc group that was formed to argue for it, and effectively, the Supreme Court said today, well, this ad hoc group doesn’t have standing. They’re not legally eligible to participate in this. They don’t have standing, as the court says.
SAVAGE: And so therefore, we’re sending it back to the lower court. The lower court’s ruling is that Proposition 8 is unconstitutional. Bingo. That seems to clear the way for gay marriage in California.
Yes. That’s exactly right, Neal. This is a decision that, in one sense, is entirely procedural, but in the other sense, as a practical matter, has an enormous practical and political significance, because as you said, it sort of throws out the appeals. It sends the case back to California, where a judge has already ruled Prop 8 is unconstitutional. So it means gay marriage is now the law in the biggest state in the country.
It will be the 13th state where gay marriage is legal. So the decision has an enormous practical impact, as I say. I also think it’s exactly the result – you notice Justice Ginsburg, Breyer and Kagan signed onto the John Roberts opinion, the procedural opinion, because Justice Ginsburg has the view is that the way to move towards equality and social change is step by step.
And she thinks this would be a very good thing to allow same-sex marriage in California, but not have to rule right now on the issue nationwide. So this is a step forward towards gay marriage, but not a true national ruling.
CONAN: And it was interesting to see Justice Sotomayor on the other side.
SAVAGE: I find that a little surprising. I guess, you know, Justice Kennedy, of course, was on the other side. And I think Justice Kennedy, if given a chance, actually would have taken the California case, ruled on the issue. He’s a Californian. So he thinks people – the people who have ballot propositions actually do have standing. They have a right to speak for the laws that they got changed.
I think Justice Kennedy, actually, if given the case, would’ve also ruled that Proposition 8 is unconstitutional.
CONAN: David Savage, Supreme Court correspondent for The Los Angeles Times and Chicago Tribune. He joined us from his offices here in Washington, as he has done so many times over the years. David, thank you for this occasion and for all the others.
SAVAGE: Thanks, Neal, it’s been great talking with you, and I just want to say congratulations on a job well done.
CONAN: Much of the gay marriage debate is centered around the challenge to Proposition 8. Joining us now from California, Scott Shafer, a reporter at KQED San Francisco, where he hosts THE CALIFORNIA REPORT. Nice to have you with us.
SCOTT SHAFER, BYLINE: Nice to be with you, Neal.
CONAN: And I know you’ve just come from City Hall there in San Francisco, where people are gathered and, I suspect, celebrating.
SHAFER: They were. There was – several hundred people turned out. They had jumbo screens in the rotunda. They were – one of them was SCOTUSblog, and the other one was on CNN. And so they were cheering as they slowly understood what everything that was being written SCOTUSblog meant. But yeah, there was a lot of – I’d just describe it as a combination of excitement, relief and even a little disappointment: the excitement of course that both DOMA and Prop 8 were struck down, relief that they weren’t upheld, and a little disappointment voiced by some people that they never got to the merits of the Prop 8 case, that it was struck down on sort of a procedural question of standing.
But nonetheless, it looks like same-sex marriage will be legal in California fairly soon, and people are happy about that, at least the ones who voted against Prop 8.
CONAN: Are you expecting litigation or protest from the other side, those people who were in favor of Proposition 8, which, of course, did get the majority of votes in California?
SHAFER: It’s very possible. Already today, the attorneys for the National Organization for Marriage and the Prop 8 campaign have said that they don’t think that this – that by striking it down on standing, that this was not a class action case, it was only applied to these four plaintiffs, these two couples that filed their lawsuit in Los Angeles and Alameda County, which is just east of San Francisco.
And so they’re arguing that, hey, this doesn’t apply to the whole state. This applies to these couples and maybe to the counties that they filed in, but, you know, there’s 56 other counties. And so we may see, for example, a county clerk in a more conservative part of California – Imperial County along the Mexican border or Kern County where Bakersfield is – say that they don’t think it does apply. And that could very well lead to further litigation.
How far that litigation would go, how long it would take to resolve, you know, obviously remains to be seen.
CONAN: There is an overwhelmingly Democratic legislature, and, of course, a Democratic governor in the state of California. Governor Brown, has he issued instructions to start issuing gay marriage licenses?
SHAFER: He certainly has. Just a few hours after the decision came out, he ordered the county clerks – who administer marriage licenses – to begin doing so as soon as the Ninth Circuit stay is lifted, and not before.
CONAN: I should just explain, of course, the Ninth Circuit found Proposition 8 unconstitutional, but then put a stay on that ruling until it could be decided by the Supreme Court. And, of course, they have to take that stay off.
SHAFER: Exactly, and whoever loses at the Supreme Court, they have 25 days to petition for a rehearing. And so once that time goes by – and I would assume that there isn’t going to be another hearing on this – the Supreme Court would send notice to the Ninth Circuit and tell that panel of three judges to lift the stay, and that could happen in a matter of hours, or certainly days.
And so if that happens, the expectation is that same-sex marriages would begin again by the end of July in California.
CONAN: And is anybody talking about putting a gay marriage on the ballot again in California?
SHAFER: I don’t think so. Certainly, if Prop 8 had been upheld, you would have been hearing that all day long today and for the rest of the week, and the reason being is that since – you know, it’s been four-and-a-half years since Prop 8 passed. It passed somewhat narrowly, 52 to 48 percent. And like much of the country, California has changed in that four-and-half years.
And the most objective polls that we’ve seen show support for same-sex marriage now approaching 60 percent, certainly above 50 percent. And so I think the supporters of same-sex marriage, if Prop 8 had been upheld, certainly would have begun either gathering signatures or more likely gone to the legislature, which is, as you point out, is controlled by Democrats, and asked them to put it on the ballot for 2014.
But I don’t see the other side doing that. It costs tens of millions of dollars to wage an effective campaign in California. And, you know, they can read the polls as well as anyone. So I don’t – I don’t see that happening.
CONAN: Scott Shafer, thanks very much.
SHAFER: You bet, thank you.
CONAN: Scott Shafer, reporter, host of CALIFORNIA REPORT at member station KQED in San Francisco. He joined us from a studio there. So what changes for you now that the Supreme Court ruling on Prop 8 and DOMA? Give us a call: 800-989-8255. Email us: talk@npr.org. Stay with us. More in a moment. I’m Neal Conan. It’s the TALK OF THE NATION, from NPR News.
(SOUNDBITE OF MUSIC)
CONAN: This is TALK OF THE NATION, from NPR News. I’m Neal Conan. Today, the Supreme Court ruled on California’s Proposition 8 and the federal Defense of Marriage Act. That latter case, officially called United States v. Windsor – after Edith Windsor, who brought the case challenging the federal definition of marriage for violating the principles of equal protection provided under the Fifth Amendment.
(SOUNDBITE OF STATEMENT)
EDITH WINDSOR: I lived with and loved Thea Spyer for more than four decades in love and joy, in sickness and health, until death did us part. On a practical level, due to DOMA, I was taxed $363,000 in federal estate tax that I would not have had to pay if I had been married to man named Theo.
CONAN: Now, she can get a rebate. President Obama, who called Windsor after her win, released an official statement and promised to press forward. The statement reads, in part: We welcome today’s decision. I’ve directed the attorney general to work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implication for federal benefits and obligations, is implemented swiftly and smoothly.
Attorney General Eric Holder also released a statement calling the decision an enormous triumph for equal protection under the law for all Americans. He vowed to work expeditiously with other Executive Branch agencies to implement the court’s decision.
If you’re affected by today’s Supreme Court decisions, tell us what changes now. 800-989-8255. Email is talk@npr.org. And you’re joined now by Dale Carpenter, professor of civil rights and civil liberties law at the University of Minnesota. He also worked on gay rights issues in that state. He joins us from Minnesota Public Radio in St. Paul. Nice to have you back on TALK OF THE NATION.
DALE CARPENTER: Thank you. Good to be here.
CONAN: Also with us, Brian Brown, president of the National Organization for Marriage, a nonprofit group that works against legalization of same-sex marriage in the United States. He joins us by phone here in Washington, D.C. Good to have you back, as well.
BRIAN BROWN: Thank you.
CONAN: And what’s the biggest story – and we’ll start with you, Brian Brown. What’s the biggest story behind these rulings?
BROWN: Well, both rulings are very bad rulings. But let’s also pay close attention to the fact that in the Proposition 8 case, this ruling was brought to be the Roe v. Wade on marriage, to essentially create a right to gay marriage nationwide, to overturn same-sex marriage – I’m sorry, to overturn definitions of marriage throughout the country.
You know, we have 38 states defining marriage as the union of a man and a woman, and it was meant to be the decision that brought gay marriage to the whole country. And that did not happen. This ruling does not create gay marriage throughout the country. It’s a very bad ruling, primarily because what it does is say that government officials, the governor of California, the attorney general, can act in collusion to not defend a law passed by the people. And then when the people try and defend that law, the court is saying that they don’t have standing to do that.
That is a travesty, and it means that governors, attorneys general, can simply ignore their obligation to defend the law, and that the people will not have recourse.
CONAN: Dale Carpenter, many gay rights groups are saying this is validation.
CARPENTER: Well, the – first of all, the Defense of Marriage Act decision is one of the most important civil rights decisions the court has issued in the last half-century. It immediately makes available, almost immediately, more than 1,000 rights and benefits at the federal level to validly married same-sex marriage couples in 12 and maybe 13 states in the country. That is enormously important in just practical terms.
And it does so through a very interesting ruling that I think fuses both conservative judicial principles and more liberal judicial principles, upholding values of federalism, on the one hand, and equal rights and protection on the other.
The other case, the Prop 8 case, is also a victory for conservative legal principles in that it says, look, you don’t get access to federal courts just because you disagree with a law or because you strongly agree with a law to defend it. You only get access to the courts when you have suffered an injury that’s specific to you, or when you’re the government itself defending the law.
And on those technical grounds, that opinion was actually joined by two of the more conservative justices on the court: Chief Justice Roberts, who wrote it, and Justice Scalia. And so that’s an important point to make, I think, in regard to these decisions.
CONAN: And I have to say, Brian Brown, as you look at this, it is hard to see this as anything other – beyond the strict legal issues involved – as a validation, an acceptance of – well, look at the opinion polls, look at what’s happened in 12 and now 13 states.
BROWN: I don’t think that’s the right reading of these decisions at all. This is a decision of the Supreme Court that refused to do what the proponents of gay marriage wanted them to do, which is create a constitutional right to same-sex marriage. What will now happen is that we will continue to have state-by-state fights.
And the polls you refer to, we’ve seen such polls. In North Carolina, for example, we’ve seen – we saw polls saying that we were going to lose the marriage amendment, and only a year ago, supporters of traditional marriage won by 61 percent. Is there some change there? Yes, there’s a slight change in the polling. But again, if folks in California and the people putting forward this lawsuit really believed in the polling, they would have allowed the people to decide this again.
Instead, they went to the courts, and again, this decision, saying that it invalidates Prop 8 is just not correct. The Ninth – because there’s no standing, the proponents – and I have to disagree with Dale Carpenter on this. These are not just private citizens. These are the proponents of the bill, who raised the money to get this passed, put it before the people. And if the state abdicates its duty to defend the law, who gets to defend it?
That is not a conservative principle at all. It basically is lawlessness. So at the end of the day, the Ninth Circuit decision is vacated. This goes back to the trial court. There’s still a stay on the decision. And technically, that trial court decision only involves those two couples. And there’s going to be a continued legal fight over how broad the implications are even in California. And I’m sure that there will be a petition for rehearing at the lower court.
CONAN: Let me go back to Dale Carpenter, and again, leaving aside the technicalities of that ruling in California – we’ll have to see how that plays out. But the continuing battle, do you expect that to go on state-by-state cases? Or do you think – agree with Justice Scalia in his dissent, who said the ruling of the majority in the DOMA case opens the door to a challenge of state laws, and that he would expect as soon as next year that there would be a case before the Supreme Court seeking to invalidate gay – anti-gay marriage bars, constitutional amendments in those 36 states?
CARPENTER: Well, it’s interesting. Justice Scalia warned 10 years ago today, when the court issued its decision in Lawrence versus Texas, that the invalidation of anti-sodomy laws would lead to challenges to the marriage laws, because he said there’s no reason left to deny marriage to same-sex couples who are in committed relationships.
That warning turned out to be quite prophetic, but it took a lot longer to work out than some might have anticipated or feared. I think one area where Brian and I may agree is that I don’t think this is the end of the story. We’re going to proceed now, I think, on two tracks. One of them is going to be continued litigation in California over the scope of that district court ruling. I think the governor has already issued an order to the county officials that they must recognize and issue marriage licenses to same-sex couples.
There are going to be thousands of couples getting married in counties where the county officials are perfectly happy to do that. And we’re also going to continue to see a political track. I don’t think we’re going to see a ballot fight in California in 2014, assuming this decision has statewide effect. But I think we’re going to continue to see a legislative and a ballot fight around the country in other states like Oregon, where frankly the polls have been dramatically shifting in the direction of support for same-sex marriage, and have actually become much more accurate recently.
I think in the past, they were probably too favorable to same-sex marriage supporters, but we’ve actually got much better polling now on this, and there has been a shift.
CONAN: Let’s get some callers in on the conversation. What changed today after the Supreme Court’s decisions on Proposition 8 in California and the Federal Defense of Marriage Act? We’ll start with Cynthia, Cynthia on the line with us from St. Louis.
CYNTHIA: Hi. Thanks for taking my call. What’s changing is we’re planning a road trip now. We were married by a rabbi in front of friends and family 10 years ago in St. Louis, and now we have the chance to have the same civil rights and protections that other married couples do. So my wife works for the federal government. I’m anticipating that once we’re married in Iowa or California, that that will affect my retirement planning, that I can count on getting her pension if something happens, that I can better answer questions for my children – we’ve got two kids – that we are a family and that our justice system works.
So once we’re able to legally get married in a state that recognizes it, I think it’s going to greatly improve our financial situation. I have to pay taxes on our family health insurance because Missouri doesn’t recognize us as a family. So I think it’s going to help in many ways.
CONAN: Cynthia, thanks very much for the call, and good luck.
CYNTHIA: Thank you so much.
CONAN: Appreciate it. Let’s go next to Herb, and Herb is on the line with us from Elkhart, Indiana.
HERB: Hello, Neal. How are you doing today?
CONAN: I’m well, thank you.
HERB: All right. Well, this is basically – what has happened now is the Supreme Court has said that the people of California do not have a right to their vote. They put this on the ballot, the people voted for it, and the court has now said, we’re going to nullify your right to vote.
Now, this is the second time in my life this has happened that the Supreme Court has nullified the people’s vote. It happened in the ’80s with the polls and voted for term limits. Our own government took us to court and said you don’t have the right to get term limits. You’re just term-limited by voting. This is wrong.
It has – now, if this had been the other way, basically what’s going to happen is let’s say you and a group of people want to get total gun control across the country and we gun owners say, oh, you don’t have the right to vote, we’re going to take you to court.
The people of the LBGT community in California had one legal option, was to get this put back on the ballot the next voting cycle and see if they could get it voted back in or voted out or whatever. That’s the only legal right they had. They have taken to the court. They said the people of California don’t have the right, seven million people…
CONAN: I think we got that, Herb. I just wanted to ask Dale Carpenter about it. This was voted on by the people of California, not in the legislature, not a law, but this was a ballot measure. Does that give it extra weight?
CARPENTER: No, it doesn’t. I mean, any vote in a ballot measure or an initiative, just like any vote in a legislature, is still subject to constitutional constraints. And I have to say, it is not unusual in the court’s history to strike down unconstitutional acts by voters, whether it’s an initiative, or by legislatures when it’s through legislation. It happened several times this week alone that the court has done that famously and, in some ways, that conservatives like, in other ways, the conservatives don’t like. But that is the court’s obligation.
The fight is not over whether the court can make the states and the federal government comply with the Constitution. The fight should be over what is the substance of the constitutional principle under which the court acts, And there, I think, there’s a legitimate discussion.
CONAN: Herb?
HERB: Yeah, Dale. What’s going to happen now? Let’s take this the other way around. The heterosexual community goes forth and get the law passed, and the, you know, the gay rights go back to get the law passed. We go take them to court? You know, it’s not right. And it doesn’t matter whether you’re conservative, Republican. It doesn’t matter whether you’re Democratic, socialist. It doesn’t matter what you are. Your voice has now been nullified. I’m sorry, but that’s the way it is.
CONAN: All right. Herb, thanks…
BROWN: What? Sorry, guys. I have to say that, you know, I agree with the caller that what the court is doing is short-circuiting the democratic process here. Now, it didn’t do it directly. Again, there was not a ruling that said that there’s a constitutional right to same-sex marriage. It did not do that.
But by rejecting the standing of the proponents, what it has done is essentially said that in any issue, lawlessness can reign if governors and attorney generals decide to say on a Voting Rights Act that they don’t want to enforce the law, that the proponents don’t have standing.
And I just think Dale is just simply wrong to say this is like any other legislative act. It is not. In the Constitution of the state of California, the people are given coequal powers to have the right of initiative and referenda. Part of that right has to be that if that is challenged, that they have their day in court, and they have been robbed of it. It is illegitimate, it is wrong, and it is anything but conservative.
CONAN: We’re talking with Brian Brown, who’s president of the National Organization for Marriage, with us by phone from here in Washington. Dale Carpenter also with us, professor of civil rights and civil liberties at the University of Minnesota. He joins us from Minnesota Public Radio in St. Paul. You’re listening to TALK OF THE NATION from NPR News.
Jason’s on the line with us from Salinas.
JASON: Hi. Thanks for having me. My partner and I actually were engaged in March of 2012, and we very deliberately did not plan our wedding for this summer in anticipation of what the – would happen at the Supreme Court level, and we’ve scheduled our wedding, of course, for next summer. And now we’re actually comfortable calling it a wedding, to this point been our ceremony.
And now that we look to stand, to be recognized not only legally, officially and also protected and recognized, we have a wedding coming up. And, you know, the one thing that I do take issue with the panelist, as well as one of the callers, is that part of the way that our government is set up – and I think that it’s a good thing, particularly if you look at history – is that sometimes the voting public, majority – the journey of the majority can be judged to be wrong, especially when it comes to social issues in our country.
And I for one am thankful that we have checks and balances that would protect different minorities regardless of what – of who they are or what they may be or stand for from that journey. Thanks for taking my call.
CONAN: Thanks very much, Jason. And earlier we heard Dale Carpenter suggest that Oregon might be another target for those in favor of what they call marriage equality. Others have suggested perhaps Illinois and Hawaii. I wanted to ask you, Brian Brown, do you see of any of the 13 states where gay marriage is now legal any likely targets to roll that back?
BROWN: Well, I do think that in Iowa, if there is a change to the Senate – and, you know, a lot of folks are working on that change – you very likely will have a vote on same-sex marriage. It will take some time. Dale and others refer to the polling. The people of Iowa still do not support same-sex marriage even though it was forced by the court quite a while ago.
So I think you will see that. You will see in Oregon – I agree with Dale – you’ll see a marriage amendment fight – I’m sorry, an attempt to get rid of the marriage amendment in Oregon. You’re also going to see that in Ohio, probably in 2014. And you’ll also have a constitutional amendment most likely on the ballot in Indiana that defines marriage as the union of a man and a woman.
So these fights will go on. The court has not issued, as I said, a Roe v. Wade on marriage. They will continue. But you will see – you will also see in Congress how Congress is going to assert itself because only section three of DOMA is repealed. We keep saying that DOMA has been repealed. We keep hearing that. That’s not true, only section three that has to do with federal benefits.
So you’re going to see, sort of, clearly an attempt to go after section two, which stops states from having to recognize same-sex marriages from other states. So I think within the Windsor decision that you see – both from Roberts and ours, you see that the court is saying that states still have the right to define marriage for themselves. Now Scalia says, well, how long will this last? And he has a very poignant and biting response thing. The court seems to be bent on getting away with whatever it can get away with. But in those cases, the court does make clear that this is still within the prerogative of the state.
CONAN: And that was Justice Kennedy’s majority opinion as well. Brian Brown, thank you very much for your time today. And our thanks as well to Dale Carpenter. The battle will go on. We appreciate your time. Thanks very much.
BROWN: Thank you.
CARPENTER: Thank you.
CONAN: When we come back, we’ll be taking with Mavis Staples about her new record, “One True Vine.” Stay with us. It’s the TALK OF THE NATION from NPR News.
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