The Instigator
libertarian
Pro (for)
Winning
50 Points
The Contender
Sweatingjojo
Con (against)
Losing
30 Points

The United States federal government should legalize and recognize same sex marriage.

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Voting Style: Open Point System: 7 Point
Started: 7/15/2008 Category: Politics
Updated: 9 years ago Status: Voting Period
Viewed: 1,836 times Debate No: 4693
Debate Rounds (3)
Comments (3)
Votes (19)

 

libertarian

Pro

1. The United States Constitution's Fourteenth Amendment, Section 1 states, "no state shall… deny to any person within its jurisdiction the equal protection of the laws." Not offering equal protection to gays under marriage laws is unconstitutional.

2. The Declaration of Independence said "all men are created equal." And on the front of the Supreme Court building the words are etched in "Equal Justice Under Law." Equality is a basic American principle that should be respected.

3. Most hospitals allow only family members to visit after visiting hours. When somebody is on their death bed, they should be able to see the love of their life for each of those last, precious seconds.

4. When a gay American wants to marry a foreign gay person their spouse will not become an American citizen like heterosexual couples.

5. There are 1,138 federal rights not offered to gay couples. And many other state rights.

6. Many nations including Canada and the Netherlands allow same sex marriage.
Sweatingjojo

Con

Hello there username: libertarian, thank you for giving me a chance to express my opinion in this debate.

You gave 6 bullet points as to why you believe the United States federal government should legalize and recognize same sex marriage.

I'm first going to write up a semi-syllogism to explain the con side.

1. A nation's Constitution is the supreme law of that country.
2. The United States has a Constitution.
3. The United States Constitution is the supreme law of the country.

4.Amendment X of the United States Constitution grants the States and the people power over matters not listed in the Constitution.
5. The Constitution lists the powers that Congress (federal Government) has in Article I, Section 8.
6. Matters of legislation unlisted in Article I, Section 8, are under the power of the States and the people.

7.Matters of legislation unlisted in Article I, Section 8, are under the power of the States and the people.
8.The power to establish laws regarding marriage legality is not listed in Article 1 Section 8.
9. The Constitution did not give the federal government power to establish laws regarding marriage legality.

Congress simply doesn't have the authority to legalize or explicitly recognize same sex marriage.
Without authority over a matter, Congress should not legislate over a matter.

On to Rebuttals

1. Article 14 is regarding states, not the federal government, as stated in the resolution. It really doesn't apply in this situation.

2.The Declaration of Independence said "all men are created equal." And on the front of the Supreme Court building the words are etched in "Equal Justice Under Law." Equality is a basic American principle that should be respected.
Neither of those writings, while both inspirational, have any legal value. Only the Constitution does. Its one thing when a person doesn't follow the law, but rather uses inspiration to guide them, but a completely different thing if a whole government did. Imagine how messed up we'd be if government leaders did whatever they felt like doing.

3.States have the power to address this issue of visitation rights, states such as mine, Maryland, have.

4.I believe you are making a policy proposal, not really making an argument. This would be a discriminatory policy, and goes against your previously cited works in argument #2.

5. I know its a shame, but the federal rights do fall into place as soon as a state recognizes marriage, or writes law that makes it the same as marriage. The problem can be solved within The Constitution, unlike how the resolution suggests.

6.Many nations including Canada and the Netherlands allow same sex marriage. Many nations also behead people for being gay. It really doesn't matter what other countries do.

I cannot wait for your reply, as to continue our debate.
Debate Round No. 1
libertarian

Pro

Rebuttals______________________________________________________________________

CON>>> The 10th Amendment grants state's rights to each state. Congress has certain powers. Regulating marriage is not one of them. Congress simply doesn't have the authority to legalize or explicitly recognize same sex marriage. Without authority over a matter, Congress should not legislate over a matter.

PRO+++ State's rights do exist, but only are in place when not in violation of the Constitution. The 14th Amendment demands same sex marriage, because it demands equal protection under law. Therefore, state's rights do not apply. The Constitution supercedes state's rights, as the 10th Amendment (the one about state's rights) clearly states. The Tenth Amendment says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." It clearly states that the powers not delegated to the United States Constitution are for the states. I am arguing from a Constitutional standpoint.

+++ This is true that marriage is a state's rights issue. And Congress does not have the power to force states to allow same sex marriage. However, the Supreme Court does. The 14th Amendment clearly states that no state shall deny equal protection under the laws. The Constitution overrules any state law as it has so many times in so many cases.

One fantastic example is the Supreme Court case of Loving v. Virginia. Virginia, a state who has the power to regulate and recognize marriage, did not recognize interracial marriages. So the Loving couple took their case to the Supreme Court after being denied marriage in Virginia for being an interracial couple. The Supreme Court unanimously decided in favor of the Loving couple based on the 14th Amendment. This is a clear example of a time when states were overruled on their right to recognize certain marriages. It is particularly unconstitutional, based on this case, for a state to deny marriage based on discrimination.

My Points______________________________________________________________________

CON>>> "1. Article 14 is regarding states, not the federal government, as stated in the resolution. It really doesn't apply in this situation."

PRO+++ The United States Supreme Court is a federal institution. It is not local or statewide. Therefore, it is evidently a federal institution. Any time the Supreme Court makes a ruling, they are ruling based on what a state has done. If the Supreme Court of the United States forces all states to finally recognize same sex marriages, this will be an action taken by the federal government through the federal Supreme Court.

+++ To say that Article 14 is regarding states so the Supreme Court has no jurisdiction is a concept that we both know to be false. The Supreme Court only rules when a state is doing something unconstitutional.

2. [The Declaration of Indepence and the Supreme Court building writings] [do not] have any legal value. Only the Constitution does.

+++ The Constitution particularly does have legal value as you've conceded. The 14th Amendment forces all states to grant equal protection under the laws.

+++ However, you cannot just throw away basic American concepts. They have no legal value, but certainly have value. If we were only to follow law and abandon all American principles, our nation would be far less great.

3.States have the power to address this issue of visitation rights, states such as mine, Maryland, have.

+++ States have this power and yours, Maryland, uses it, but many states do not. Under the 14th Amendment of the United States Constitution they have to follow this rule. It is not optional. State's rights only apply when not in violation of the Constitution as the 10th Amendment reads.

4.I believe you are making a policy proposal, not really making an argument. This would be a discriminatory policy, and goes against your previously cited works in argument #2.

5. I know its a shame, but the federal rights do fall into place as soon as a state recognizes marriage, or writes law that makes it the same as marriage. The problem can be solved within The Constitution, unlike how the resolution suggests.

6.Many nations including Canada and the Netherlands allow same sex marriage. Many nations also behead people for being gay. It really doesn't matter what other countries do.

+++ I'm willing to concede these last points if you are. We are both in agreement that gay marrage is not harmful. Our only disagreement is the Constitution. We could clear up this debate of these last agreed upon points if you would concede.
_______________________________________________________________________________

My opponent's sole argument is that Congress cannot force states to regulate marriage in any way, which I agree with. But I was not referring to the Congress when I was referring to the federal government. I was referring to the Supreme Court, which does have the right to regulate marriage if the current rule is unconstitutional. The Constitution supercedes all law, including state's rights. The tenth amendment (which is my opponent's only argument) says: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. It clearly says, "the powers not delegated by the United States Constitution." The Constitution overrules state's rights.

-- Thank you for reading and voting.
Sweatingjojo

Con

Now that its been settled that we're talking mostly about the constitutionality of a federally enforced legalization and recognition of s.s.m. I think this debate will really become interesting.

My opponent's argument pretty much comes down to this :"This is true that marriage is a state's rights issue.Congress does not have the power to force states to allow same sex marriage. However, the Supreme Court does."

To start,
My rebuttal is that just because the Supreme Court does have the power of judicial review doesn't mean that it should always be exercised, especially in a case such as this. Also, as previously ruled in Baker v. Nelson (1971), the 14th amendment applies in some instances regarding marriages, but not others. The majority opinion in that case is quoted as follows "in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex."

The above cited case occurred in the Minnesota State Supreme Court. The couple that was denied the ability to marry appealed to the US Supreme Court, and the Court refused to hear the case, "for want of a substantial federal question." This is unlike most denials, as in this situation, the refusal to hear the case codifies the decision that the Minnesota Supreme Court has made as the one that all lower courts must make.

So basically, it has been ruled on by the Supreme Court, and same sex marriage bans do not violate the 14th amendment.

Onto the previously contended issues before I state my points.

"If the Supreme Court of the United States forces all states to finally recognize same sex marriages, this will be an action taken by the federal government through the federal Supreme Court."

The Supreme Court can't alter the law via an affirmative. They can only do it in a negative.
So basically they can possibly make it illegal to ban same sex marriage, but they technically can't make same sex marriage legal.
As stated before, the Supreme Court ruled in essence that states are not in violation of the 14th amendment if they ban same sex marriage.

Your other point is moot now, as it is established that we are not talking about Congressional legalization of marriage.

"However, you cannot just throw away basic American concepts. They have no legal value, but certainly have value. If we were only to follow law and abandon all American principles, our nation would be far less great."

This isn't really a big issue in this debate, but still, the law is the law, inspirational quotes are inspirational quotes. To intermix the two at will would be a bad idea.

"States have this power and yours, Maryland, uses it, but many states do not. Under the 14th Amendment of the United States Constitution they have to follow this rule. It is not optional. State's rights only apply when not in violation of the Constitution as the 10th Amendment reads."

Back to Baker v. Nelson. Although my state has more to offer for gay couples, it did this by democratic legislative choice. Not by Constitutional force. Also, states rights are granted in the constitution, so to deny them would be just as unconstitutional as to deny the Congress the power to make and declare war.

"We could clear up this debate of these last agreed upon points if you would concede."

CONCEDE?! NEVER.

"I was referring to the Supreme Court, which does have the right to regulate marriage if the current rule is unconstitutional."
Yes it does, although its been ruled that bans on gay marriage are Constitutional.

"The Constitution supercedes all law, including state's rights."
States rights are part of the Constitution, so you're saying that the Constitution supersedes itself.

"It clearly says, "the powers not delegated by the United States Constitution.""

No, it says 'The powers not delegated to the United State BY THE CONSTITUTION." Its not up for debate, that's what the document says.

Onto what I have to say.

It is my belief that the United States federal government should not legalize and recognize same sex marriage. I do not believe that Congress should do it, as that would blatantly violate the Constitution, and I also believe that the Supreme Court should not do it. The Supreme Court should abstain from ruling that the 14th amendment is violated by states if they have a ban on Same sex marriage because this would overturn previously set precedent by the Court and because it is a proper argument that "in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex". I also argue that it would be inappropriate for the Supreme Court to use judicial review because this would be the greatest usurpation of state sovereignty by 9 lawyers the world has ever seen, (48 states currently find the marriage of same sex couples illegal.) and would go directly against the majority opinion of people in the United States. (Pew Poll, end of may, 49% opposed to marriage, 38% favor. Most recent example) This issue can be solved at the state level, that has been my argument the whole time. The Supreme Court's presence should not alter that fact. To end, I will quote Abraham Lincoln as he speaks regarding his opposition to Judicial review, which is the concept that my opponent is encouraging the Supreme Court to implement, making the banning of gay marriages at the state level illegal.
"[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."
Debate Round No. 2
libertarian

Pro

Opponent>>> "Also, as previously ruled in Baker v. Nelson (1971), the 14th amendment applies in some instances regarding marriages, but not others. The majority opinion in that case is quoted as follows "in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.""

Me>>> This opinion was made forty years ago. Forty years ago, prejudice was running high. This ruling was blatantly unconstitutional. The justices never ruled why the 14th Amendment did not apply. They simply said that gays do not count under equal protection, which has been proven untrue in Lawrence vs. Texas, Watkins v. Army, Lewis v. Harris, Goodridge v. Dept. of Public Health, California's Two Equal Marriage Cases and so many others. Baker v. Nelson did not actually look into equal protection.

>>> Chief Justice Ronald M. George, in California's recent marriage case cited the Court's 1948 decision in Perez v. Sharp where the state's interracial marriage ban was held unconstitutional (Loving v. Virginia is the federal equivalent). It found that "equal respect and dignity" of marriage is a "basic civil right" that cannot be withheld from same-sex couples, that sexual orientation is a protected class like race and gender, and that any classification or discrimination on the basis of sexual orientation is subject to strict scrutiny under the Equal Protection Clause of the California State Constitution. [http://en.wikipedia.org...]

Opponent>>> "The Supreme Court did not hear it. It has been ruled on by the Supreme Court, and same sex marriage bans do not violate the 14th amendment."

Me>>> It did not. The Minnesota Supreme Court ruled it 40 years ago when same sex prejudice was high. Today, every time the Supreme Court looks into equal protection of gays, they find that they deserve. Every recent case shows that gays deserve equal protection and equal marriage.

"If the Supreme Court of the United States forces all states to finally recognize same sex marriages, this will be an action taken by the federal government through the federal Supreme Court."

Opponent>>> "The Supreme Court can't alter the law via an affirmative. They can only do it in a negative. So basically they can possibly make it illegal to ban same sex marriage, but they technically can't make same sex marriage legal."

Me>>> The Supreme Court forced interracial marriage, integration of schools, voting rights and much more. They can legalize things...

Opponent>>> "As stated before, the Supreme Court ruled in essence that states are not in violation of the 14th amendment if they ban same sex marriage."

Me>>> The Minnesota government ruled same sex marriage illegal and the Supreme Court did not want to touch it 40 years ago. Every time same sex marriage is tried today, it wins. Gays have equal protection as so many cases have proved recently.

Opponent>>> Back to Baker v. Nelson. Although my state has more to offer for gay couples, it did this by democratic legislative choice. Not by Constitutional force. Also, states rights are granted in the constitution, so to deny them would be just as unconstitutional as to deny the Congress the power to make and declare war.

Me>>> Are you back on this? State's rights does not apply to the Supreme Court. It applies to the Congress. Everytime the Supreme Court rules it is due to a state violating the Constitution.

Opponent>>> "its been ruled that bans on gay marriage are Constitutional."

Me>>> It never has.

Opponent>>> "States rights are part of the Constitution, so you're saying that the Constitution supersedes itself."

Me>>> WHAT!? The Constitution particularly says that the state's have rights that are not reserved in the Constitution. The right of the Supreme Court to rule things is in the Constitution. So state's rights do not apply! If you are saying that state's rights apply to the Supreme Court, then you are saying that the Constitution is not allowed to rule on anything!!!

Opponent>>> "No, it says 'The powers not delegated to the United State BY THE CONSTITUTION." Its not up for debate, that's what the document says."

Me>>> Yes. God! It says that if the powers have been delegated by the Constitution, then the state's do not have them. The Supreme Court has the power to rule. Therefore, the state's do not get that right. The Supreme Court is the highest law in the land. State's rights are given to everything that the Constitution has not already designated powers to. The Supreme Court is one of those powers!!! GAH!!!

Opponent>>> "The Supreme Court should abstain from ruling that the 14th amendment is violated by states if they have a ban on Same sex marriage because this would overturn previously set precedent by the Court"

Me>>> This means nothing! Courts overturn things all the time! In Bowers v. Hardwick, the Court ruled that sodomy is illegal. In Lawrence v. Texas, the Court ruled sodomy should be legal. Courts have gone both ways. And in modern times, Courts have been ruling in favor of same sex couples, because they do deserve equal protection.

Opponent>>> "and because it is a proper argument that "in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex"."

Me>>> This has recently been countered by the California Supreme Court and other cases.

Opponent>>> "I also argue that it would be inappropriate for the Supreme Court to use judicial review because this would be the greatest usurpation of state sovereignty by 9 lawyers the world has ever seen, (48 states currently find the marriage of same sex couples illegal.) and would go directly against the majority opinion of people in the United States. (Pew Poll, end of may, 49% opposed to marriage, 38% favor.

Me>>> The Supreme Court is the highest law in the land. At the time when interracial marriage was legalized, only 90% of Americans supported the legalization of it. The Supreme Court and the United States Constitution overrules what the American people currently want. And it should.

Opponent>>> Most recent example) This issue can be solved at the state level, that has been my argument the whole time. The Supreme Court's presence should not alter that fact.

Me>>> There is no logical reason for the Supreme Court not to overrule this blatant unconstitutionality.

Opponent>>> 'Abraham Lincoln court against the Supreme Court.'

Me>>> So what if Lincoln has no respect for the Constitution. We already know that. He supported slavery and only ended it for the purpose of the war. We know that he suspended Habeus Corpus and imprisoned a fellow without a trial. But 100% of our founding fathers supported the Constitution.

It is obvious that the 14th Amendment guarantees equal protection of the laws. In Loving v. Virginia, and Perez. v. Sharp it was ruled that marriage is a civil right and that equal protection is a rational reason to not discriminate on marriage. There is absolutely no reason to violate the Constitution, including popular opinion. When interracial was forced on states, 90% of Americans opposed it. Lawrence vs. Texas, Watkins v. Army, Lewis v. Harris, Goodridge v. Dept. of Public Health, California's Two Equal Marriage Cases and so many cases have proved that gays deserve equal protection status. And Perez v. Sharp and Loving v. Virginia has indicated that marriage is a civil right. It is illegal and unconstitutional to ban same sex marriage.
Sweatingjojo

Con

Jumping right into the thick of it...
"This opinion was made forty years ago."
37 years ago.
"Forty years ago, prejudice was running high."
You should have proved it when you had the chance.

This ruling was blatantly unconstitutional. The justices never ruled why the 14th Amendment did not apply. They simply said that gays do not count under equal protection, which has been proven untrue in Lawrence vs. Texas, Watkins v. Army, Lewis v. Harris, Goodridge v. Dept. of Public Health, California's Two Equal Marriage Cases and so many others. Baker v. Nelson did not actually look into equal protection."
Baker v Nelson made it very clear when they said that "in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex."

My opponent then goes on to explain what the Chief Justice on the CALIFORNIA SUPREME COURT said about gay marriage and its constitutionality under the CALIFORNIA CONSTITUTION. The California Supreme Court's rulings < US Supreme Court's rulings.

It did not. The Minnesota Supreme Court ruled it 40 years ago when same sex prejudice was high.
There is potential that you don't understand what it means to deny a case "for want of a substantial federal question." When they deny a case to be heard for that reason, it means they completely agree with the lower court's ruling, which actually makes that ruling common law.

"Today, every time the Supreme Court looks into equal protection of gays, they find that they deserve. Every recent case shows that gays deserve equal protection and equal marriage."

My opponent is confusing equal protection in areas such as the workplace, where sexual orientation doesn't make a difference, with sexual orientation of married people, which does make a fundamental difference.

"The Supreme Court forced interracial marriage, integration of schools, voting rights and much more. They can legalize things..."
I repeat, the supreme court can only make things illegal, they cannot legalize things. Proof ? Many states allowed interracial marriage before Loving v. Virginia. When they ruled, they made it so it would be illegal to make illegal interracial marriage.

">> The Minnesota government ruled same sex marriage illegal and the Supreme Court did not want to touch it 40 years ago."
Half false. The Supreme Court did touch it, they said that the decision was proper and is to be used as federal legal precedent.

"Every time same sex marriage is tried today, it wins. Gays have equal protection as so many cases have proved recently."

Not true, in my state of Maryland, just last year, the Court of Special Appeals (Highest in the state) ruled that Gay marriage was not legal at this point in time in Maryland. Pretty much the same question fell before the California and Massachusettes supreme court, only they took the other way.
It pretty much comes down to if the justices believe judicial activism is a good thing. I think that in this case, its not.

"Everytime the Supreme Court rules it is due to a state violating the Constitution."

That's just a factual error, in many cases the Supreme court hears, both sides are private parties.

It never has.

When the supreme Court ruled that the descison made by the Minnesota supreme court in Baker v. Nelson was correct, they allowed for state bans on gay marriage, because it was ruled that they don't violate the 14th amendment.

"The right of the Supreme Court to rule things is in the Constitution."
Judicial review, (which my opponent is referring to) is no where stated to be a right of the Supreme Court in the Constitution. However, it is legal precedent to use judicial review, since Marbury v. Madison.

I'm ignoring the next little part, its really not a contentious issue, just some words that have no relevance to the debate for either side at this point.

"And in modern times, Courts have been ruling in favor of same sex couples, because they do deserve equal protection."
The Supreme Court has not yet made a ruling in favor of same sex couples, If you had found one when you had the chance, then I guess I wouldn't be saying this.

"This has recently been countered by the California Supreme Court and other cases."
The California Supreme Court has no power over the 49 other states in the country. Its descisons, unless ruled proper by the US Supreme Court, have no bearing for the rest of the nation.

"At the time when interracial marriage was legalized, only 90% of Americans supported the legalization of it." Yes, that's a compelling argument to support legalizing it. In this instance, 38% support legalizing same sex marriage, and 49% oppose.

"The Supreme Court and the United States Constitution overrules what the American people currently want. And it should."
Again, the Supreme Court never ruled that gay marriage bans were unconstitutional, and since the Supreme Court is the final say on interpreting the Constitution, the Constitution currently allows for gay marriage to be banned.

"There is no logical reason for the Supreme Court not to overrule this blatant unconstitutionality."

Other than the fact that 49% of respondents oppose it, while only 38% support it, and it would overturn 96% of all state legislatures. Those are two logical reasons. Its call judicial restraint, which is the idea that judicial review, which over turns laws, should be limited to cases where it is obvious that there is a need for it.
In this case, it is not obvious that there is a need for it.

"But 100% of our founding fathers supported the Constitution."
By Constitution, you mean Judicial Review, which was never in the Constitution.

I wish you could prove that 100% of our founding fathers supported judicial review.
I can prove that at least two of them didn't.

Robert Yates, of the New York Delegation to the Constitutional Convention:
"[I]n their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal."

Thomas Jefferson, writer of Declaration of Independence
"You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves"

Both of the previous quotes are ones that explain how the writers take issue with the idea of 9 lawyers deciding the laws for the entire country, and how the vast majority of the time, it should not happen.

To conclude, I would just like to remind everyone that I have proven that legal precedent allows for states to ban gay marriage, and I have also shown that the issue of gay marriage cannot and should not be solved on the federal level, the states being much more apt to solve the issue, as for doing it that way will result in a positive outcome for all involved parties, The Constitution, the States, the couples, the nation.

Vote Con.
Debate Round No. 3
3 comments have been posted on this debate. Showing 1 through 3 records.
Posted by Sweatingjojo 9 years ago
Sweatingjojo
damn straight I'm debating you.
Posted by libertarian 9 years ago
libertarian
A guy is debating me who is in favor of same sex marriage...
Posted by Im_always_right 9 years ago
Im_always_right
I agree completely. I hope you find some1 gud 2 debate.
19 votes have been placed for this debate. Showing 1 through 10 records.
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libertarianSweatingjojoTied
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