Same-sex marriage in Kansas

Legal status of
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Recognized

  1. Can be registered also in Aruba, Curaçao and Sint Maarten
  2. Licensed in some counties in Kansas but same-sex marriage is not recognized by the state
  3. Only licensed in St. Louis (city), St. Louis County, & Jackson County (but only St. Louis (city) is required to).
  4. When performed in Mexican states that have legalized same-sex marriage
  5. Most counties in Alabama issued same-sex marriage licenses for several weeks after a federal court found that state's ban unconstitutional, but all stopped by 4 March 2015 following an order by the state supreme court
  6. Only if married in Michigan when same-sex marriage was legal

*Not yet in effect

LGBT portal

Same-sex marriage has been in an uncertain state of legalization in Kansas since a preliminary injunction by the U.S. District Court for the District of Kansas. The LGBT rights advocates that filed for the injunction claim the ruling applies statewide, while state officials maintain the ruling applies to only two of the state's 105 counties and refuse to recognize same-sex marriages for any official purpose until required by court action. 61 Kansas counties, containing 83% of the population of the state, do issue marriage licenses. 39 counties, containing 15% of the population, do not. The 5 counties of the 30th judicial district will not say.

In the principal lawsuit on the issue, Marie v. Moser, U.S. District Judge Daniel D. Crabtree issued a preliminary injunction barring the Secretary of the Kansas Department of Health and Environment, Douglas County and Sedgwick County from enforcing Kansas's same-sex marriage ban on November 4, 2014. He temporarily stayed the injunction until November 11 to give state authorities time to appeal. On November 7, 2014, the Tenth Circuit Court of Appeals denied state officials' request for a stay pending appeal.

On November 12, 2014, the U.S. Supreme Court denied the state officials' request for a stay pending the appeal of Marie. As the injunction in Marie was set to take effect, the Kansas attorney general contended that Crabtree's preliminary injunction only applied to the two counties involved in the lawsuit, not statewide. The American Civil Liberties Union maintained that the injunction applied to all 105 of the state's counties. State district judges have responsibility for licensing marriages in Kansas and some of them have refused to authorize the issuing of marriage licenses to same-sex couples based on their own interpretation of the legal situation.

On November 18, 2014, the Kansas Supreme Court, acting in Schmidt v. Moriarty, lifted the temporary hold they had placed on same-sex marriages in the state's Tenth Judicial District, which covers Johnson County. The court ruled that it was within the jurisdiction of Judge Kevin P. Moriarty, as chief judge of that district, to authorize the issuance of marriage licenses to same-sex couples based on his determination of the law.

The Kansas Supreme Court left the issue of whether to license same-sex marriages to each judicial district. Though the state had initiated the lawsuit against Judge Moriarty in order to promote "statewide uniformity", the court said it could not issue "advisory opinions". It suspended consideration of the legal status of the same-sex marriages licensed by the judicial districts until the litigation of Marie in federal court is completed.

Same-sex marriage

Bans

On April 4, 1996, the Kansas State Senate voted 39–1 in favor of a bill banning same-sex marriage and recognition of same-sex marriage performed outside of state. The Kansas House of Representatives also passed the bill. On April 11, 1996, Governor Bill Graves signed the bill into law.[1]

On January 20, 2005, the Kansas State Senate voted 28–11 in favor of Kansas Amendment 1, a constitutional amendment banning same-sex marriage and the "rights or incidents of marriage".[2] On February 2, 2005, the Kansas House of Representatives voted 86-37 in favor of the amendment.[3] On April 5, 2005, Kansas voters approved the amendment by a margin of more than 2 to 1.[4]

Lawsuits

Nelson v. Kansas Department of Revenue

On December 30, 2013, private lawyers in Topeka filed a lawsuit in state court on behalf of two same-sex couples, Roberta and Julia Woodrick of Lawrence and Michael Nelson and Charles Dedmon of Alma, seeking recognition of their marriage licenses from other jurisdictions in order to be allowed to file joint state income tax returns.[5] The lawsuit is Nelson v. Kansas Department of Revenue and stems from the June 2013 Supreme Court ruling striking down part of the Defense of Marriage Act, after which federal Internal Revenue Service accepted joint income tax returns only if the couple's state of residence recognizes the marriage. The plaintiffs' attorneys in Nelson argue that the Kansas Department of Revenue and the Kansas constitution's definition of marriage makes it impossible for the plaintiffs to file their state taxes honestly.[6]

Tenth Circuit Court of Appeals

The U.S. Supreme Court declined to hear two cases from the Tenth Circuit Court of Appeals on October 6, 2014. That left decisions that found Utah's and Oklahoma's bans on same-sex marriage unconstitutional as binding precedent on federal courts in Kansas. Legal experts expect Kansas to be required to allow same-sex marriage before long.[7]

Schmidt v. Moriarty

On October 8, Chief District Judge Kevin Moriarty of the state district court for Johnson County, the most populous in the state, directed the court's clerk to issue marriage licenses to same-sex couples.[8] A statement from Governor Sam Brownback said: "An overwhelming majority of Kansas voters amended the constitution to include a definition of marriage as one man and one woman. Activist judges should not overrule the people of Kansas." Kansas Attorney General Derek Schmidt said he was prepared for litigation and noted that the Kansas ban on same-sex marriage had not been invalidated in court.[9] Schmidt filed a lawsuit in the Kansas Supreme Court, Schmidt v. Moriarty, asking the court to order Moriarty to stop issuing the licenses.[10] Later that day, Kansas Chief Justice Lawton Nuss issued a temporary injunction suspending Moriarty's order authorizing the issuance of marriage licenses to same-sex couples "[i]n the interest of establishing statewide consistency" on the question of issuing licenses to same-sex couples, but the court allowed for the continued acceptance of applications for marriage licenses.[11]

On November 13, following a federal court decision striking down the state's same-sex marriage ban in Marie v. Moser, Judge Moriarty asked the court to lift its temporary stay and allow him to issue licenses to same-sex couples.[12] On November 18, the court ruled that Judge Moriarty was "within his jurisdiction" in ordering the issuance of marriage licenses to same-sex couples and lifted its stay, leaving other issues, including whether Moriarty's legal judgment was correct, to be resolved pending the final outcome of Marie v. Moser.[13][14]

Marie v. Moser

Once the decisions of the Tenth Circuit Court of Appeals in Kitchen v. Herbert and Bishop v. Oklahoma became binding precedent on federal courts in Kansas, the ACLU filed a lawsuit, Marie v. Moser, in U.S. district court on October 10 on behalf of two lesbian couples who had been refused marriage licenses since the Supreme Court declined to review those decisions. The suit named as defendants Robert Moser, Secretary of the Kansas Department of Health and Environment (KDHE), and two district court clerks.[15] Judge Daniel D. Crabtree heard oral arguments on October 31.[16] On November 4, he ruled that "[b]ecause Kansas’ constitution and statutes indeed do what Kitchen forbids, the Court concludes that Kansas’ same-sex marriage ban violates the Fourteenth Amendment to the Constitution". He stayed enforcement of his ruling against state officials until 5 pm on November 11 unless the state defendants inform the court before then that they will not appeal the decision.[17][18] The Tenth Circuit Court of Appeals rejected the state's request for a stay pending appeal.[19] The Westboro Baptist Church has sought to intervene in the suit without success.[20] Anticipating the expiration of Judge Crabtree's temporary stay, Chief Judge Wayne Lampson of the state district court in Wyandotte County ordered his court's clerks to issue marriage licenses to same-sex couples beginning November 12.[21] The state defendants asked Supreme Court Justice Sonia Sotomayor, as Circuit Justice for the Tenth Circuit, to issue a stay pending appeal, and on November 10 she granted a temporary stay pending consideration of their request.[22] In their briefs, the parties disputed the significance of the order issued by the Kansas Supreme Court in State v. Moriarty and of the recent decision of the Sixth Circuit Court of Appeals in DeBoer v. Snyder.[23][24] The Supreme Court denied the state's request for a stay in November 12, 2014, allowing the district court order to take effect.[25][26] Attorney General Schmidt said that order only applied to Douglas and Sedgwick Counties.[27]

On November 26, the plaintiffs amended their complaint to include three additional couples as plaintiffs and three additional defendants: the Secretary of the Kansas Department of Revenue, the Director of the Division of Vehicles, and the Director of the State Employee Health Plan.[28] On December 2, the Tenth Circuit denied the request of the state defendants for an initial hearing en banc of their appeal.[29] On December 8, the plaintiffs asked the court to extend its order to cover the three additional defendants and "any officers, agents, servants, employees, attorneys, other persons who are in active concert or participation with them".[30] On December 10, the three original named defendants asked the district court to remove them as defendants. Moser wrote that he had resigned on November 30 after complying with the court's order, though stayed, by modifying the state's marriage license forms to accommodate same-sex couples, leaving no further action to be compelled from his successor. He and the two clerks noted that the plaintiffs had not married even though they were able to do so and that the plaintiffs had no ongoing dispute with the clerks and therefore no longer had standing.[31][32] The plaintiffs' briefs in reply noted that Moser was named in his official capacity and is therefore succeeded as the principal named defendant by Susan Mosier, Interim Secretary of KDHE. They noted that the duties of that office extend beyond provided marriage license forms and include "supervising the registration of all marriages" and related activities.[33] They argued that the clerks' compliance with a preliminary injunction does not moot the case and that "Plaintiffs are entirely within their rights in adjusting the timing of their marriage so that their claims do not become moot before final judgment is entered."[34]

Despite the replacement of Moser as Secretary of KDHE by Mosier, the case remains Marie v. Moser.[35] The new state defendants filed a motion to dismiss on January 20, 2015. Unlike most state officials' briefs, it cited section 2 of the Defense of Marriage Act to defend the state's refusal to recognize same-sex marriages from other jurisdictions.[36] On March 17, Judge Crabtree rejected the defendants' motions to suspend proceedings pending action in similar cases by the U.S. Supreme Court. He gave them until April 13 to respond to the plaintiffs' motion for summary judgment.[37]

Licenses issued

Kansas counties currently issuing same-sex marriage licenses.
  County will issue same-sex marriage licenses
  County will not issue same-sex marriage licenses
  County will not say, and has not received any applications

One same-sex couple married in Kansas in the week following the U.S. Supreme Court's refusal to hear appeals in cases from Oklahoma and Utah on October 6, 2014. A lesbian couple applied for a marriage license on October 7, a day when most county clerks were waiting for instructions, and submitted it to their district court the next day. Following the state's 3-day waiting period, they received their license on October 10 and held their wedding service at the Johnson County Courthouse just a few hours before the Kansas Supreme Court issued an injunction to halt to issuance of marriage licenses to same-sex couples there.[38]

Several Kansas counties began issuing marriage licenses to same-sex couples for the first time on November 13, 2014, though the state attorney general contended that the federal court order in Marie v. Moser only applied to two counties.[39] The head of the LGBT advocacy group Equality Kansas said it was unclear whether all counties were required to issue such licenses,[40] while the ACLU said "[t]he ruling was clear" and applied to all counties.[41] Johnson County remained under a state court's temporary order not to issue such licenses.[39] More counties began issuing licenses on November 17, even while the Kansas Supreme Court was deliberating whether district judges had the authority to authorize them.[42] The National Organization for Marriage (NOM) urged Kansas Governor Sam Brownback to "order local clerks to refuse to issue marriage licenses that violate Kansas law defining marriage as the union of one man and one woman." Its president, Brian Brown, said: "The question for the people of Kansas, and indeed the nation, is whether we are going to allow an illegitimate order by federal judges to trump state law and the vote of 70% of the Kansas electorate. Fifty million Americans in over thirty states have voted in support of traditional marriage and it's time that states fight back to protect the decision of those voters."[43]

Following the Kansas Supreme Court ruling in Schmidt v. Moriarty, Kansas Equality confirmed that 19 counties were issuing licenses to same-sex couples: Brown, Chase, Cherokee, Cloud, Cowley, Crawford, Douglas, Jewell, Johnson, Labette, Lincoln, Lyon, Mitchell, Republic, Riley, Sedgwick, Shawnee, Washington and Wyandotte.[44] On November 20, Judge Richard Walker, chief of the state's 9th Judicial District, said his district began issuing. Administrative directives exist in the 8th and 19th Districts to issue as well.[45] Judge Ed Bouker, chief of the state's 23rd Judicial District, also mentioned he would issue licenses although "...no one has [yet] filled out an application." This adds the following counties to those issuing licenses: Dickinson, Ellis, Geary, Gove, Harvey, Marion, McPherson, Morris, Rooks and Trego. A November 24 update by Kansas Equality adds the following counties, not listed previously, as issuing licenses: Doniphan, Marshall, and Nemaha.[46][47] The following day, Kansas Equality confirmed the state's 31st district, adding Allen, Neosho, Wilson, and Woodson Counties. As of December 16, Kansas Equality reported another 12 counties were issuing such licenses: Barton, Clark, Clay, Comanche, Ellsworth, Ford, Gray, Kiowa, Meade, Rice, Russell, and Stafford Counties.[48][49] The six counties in the 26th Judicial District began issuing licenses during the week of December 22: Grant, Haskell, Morton, Seward, Stanton, and Stevens Counties.[50] Altogether these 54 counties include 76% of the state's population. The 1st Judicial district which includes Atchison and Leavenworth approved handing licenses, as did the 6th Judicial District, comprising Miami, Linn, and Bourbon Counties.[51] The 28th Judicial District, which includes Ottawa and Saline counties, began issuing licenses in February.[52] With the addition of these counties, there are now 61 counties issuing same sex marriage licenses, constituting 83% of the population.

The state's 4th Judicial District has announced that it "will have to wait for another court ruling before it will begin issuing licenses" after the ruling in Moriarty. Counties affected under this decision are: Anderson, Coffey, Franklin, and Osage.[53] Judge David Ricke of the state's 13th Judicial District indicated that the ban would remain there as well, affecting: Butler, Elk and Greenwood counties.[54] Twelve more counties reported as deciding to deny marriage licenses to same-sex couples are: Cheyenne, Jackson, Jefferson, Logan, Pottawatomie, Rawlins, Reno, Sheridan, Sherman, Thomas, Wabaunsee, and Wallace Counties.[50] As of February 9, most of the remaining counties had announced that they would also refuse to issue licenses.[55] These 39 counties comprise 15% of the state's population.

The five counties of the 30th judicial district – Pratt, Barber, Kingman, Harper, and Sumner, constituting 2% of the state's population – have yet to receive same-sex marriage applications, and have not stated whether they would issue licenses if they did.

State denial of recognition

As of November 19, 2014, state executive agencies such as the Division of Vehicles continued to deny recognition to same-sex marriages. The governor's office said policies would not change as long the state was appealing the ruling in Marie, citing income tax filing as an example. A spokesperson for the governor said state agencies would "take the necessary legal actions once this issue is resolved." The Department of Health and Environment, on the other hand, under the U.S. district court's order not to enforce the state's ban, has modified its marriage license application forms to accommodate same-sex couples.[56]

Domestic partnership

Map of Kansas counties and cities that offer domestic partner benefits either county-wide or in particular cities.
  City offers domestic partner benefits
  County-wide partner benefits through domestic partnership
  County or city does not offer domestic partner benefits

Lawrence

On May 22, 2007, the Lawrence city commission voted 4–1 in favor of the creation of a domestic partnership registry. On August 1, 2007, the ordinance went into effect.[57][58]

Topeka

On May 20, 2014, the Topeka city council voted 5–3 in favor of the creation of a domestic partnership registry. On June 30, 2014, the ordinance went into effect.[59][60]

Public opinion

Public opinion for same-sex marriage in Kansas
Poll source Date(s)
administered		 Sample
size		 Margin of
error		 % support % opposition % no opinion
Public Policy Polling October 9–12, 2014 1,081 likely voters ± 3% 44% 49% 7%
New York Times/CBS News/YouGov September 20–October 1, 2014 2,013 likely voters ± 2.6% 44% 41% 15%
Public Policy Polling February 18–20, 2014 693 voters ± 3.7% 44% 48% 8%
Public Policy Polling February 21–24, 2013 1,229 registered voters ± 2.8% 39% 51% 9%

See also

References

  1. ↑ kansas-senate marriage ban
  2. ↑ Kansas gay marriage ban goes to committee
  3. ↑ Kansas House Puts Measure On Gay Marriage On Ballot
  4. ↑ "Kansas voters approve gay marriage ban". NBC News. Associated Press. April 6, 2005. Retrieved December 1, 2014.
  5. ↑ "Litigation in Kansas". Freedom to Marry. December 30, 2013. Retrieved June 29, 2014.
  6. ↑ "Same-sex married couples file lawsuit against state over tax treatment". . LJWorld.com. December 31, 2013. Retrieved June 29, 2014.
  7. ↑ Helling, Dave (October 6, 2014). "Court ruling makes same-sex marriages more likely in Kansas, perhaps Missouri". The Kansas City Star. Retrieved October 8, 2014.
  8. ↑ "Johnson County chief judge gives green light to gay marriage in Kansas". Lawrence Journal-World. October 8, 2014. Retrieved October 8, 2014.
  9. ↑ Rizzo, Tony (October 9, 2014). "Same-sex couples now can legally marry in Johnson County". Kansas City Star. Retrieved October 9, 2014.
  10. ↑ Cooper, Brad (October 10, 2014). "Kansas A.G. Derek Schmidt seeks to block same-sex marriage licenses after first couple wed in in Johnson County". Kansas City Star. Retrieved October 10, 2014.
  11. ↑ Johnson, Chris (October 10, 2014). "Kansas AG seeks to halt same-sex marriages in his state". Washington Blade. Retrieved October 10, 2014.
  12. ↑ "Motion for Immediate Termination of Temporary Stay". Supreme Court of Kansas. Retrieved November 13, 2014.
  13. ↑ "Same-sex marriage now allowed in most populous Kansas county". Reuters. November 18, 2014. Retrieved November 21, 2014.
  14. ↑ "Order Lifting Johnson County Stay". Scribd.com. Retrieved November 18, 2014.
  15. ↑ "Complaint, October 10, 2014". Scribd.com. U.S. District Court for Kansas. Retrieved October 13, 2014.
  16. ↑ Hanna, John (October 31, 2014). "Kansas Urges Judge Not to Rule on Gay Marriage". ABC News. Associated Press. Retrieved October 31, 2014.
  17. ↑ Snow, Justin (November 4, 2014). "Federal judge rules against Kansas same-sex marriage ban". Metro Weekly. Retrieved November 4, 2014.
  18. ↑ "Memorandum and Order". U.S. District Court for Kansas. Retrieved November 4, 2014.
  19. ↑ Hanna, John (November 7, 2014). "Kansas will ask US Supreme Court to uphold gay marriage ban". Kansas.com. Associated Press. Retrieved November 8, 2014.
  20. ↑ Johnson, Chris (November 7, 2014). "Judge nixes Westboro intervention in same-sex marriage case". Washington Blade. Retrieved November 9, 2014.
  21. ↑ Hanna, John (November 10, 2014). "Advocates hope gay marriages will start in Kansas". Washington Times. Associated Press. Retrieved November 10, 2014.
  22. ↑ Denniston, Lyle (November 10, 2014). "New test of Court’s view on same-sex marriage". SCOTUSblog. Retrieved November 10, 2014.
  23. ↑ Denniston, Lyle (November 10, 2014). "New test of Court's view on same-sex marriage". SCOTUSblog. Retrieved November 11, 2014.
  24. ↑ Denniston, Lyle (November 11, 2014). "Delay in Kansas same-sex marriages opposed". SCOTUSblog. Retrieved November 11, 2014.
  25. ↑ Supreme Court denies stay in Kansas gay marriage case
  26. ↑ Hanna, John; Smith, Bruce (November 12, 2014). "Supreme Court Lifts Hold On Gay Marriage in Kansas". The State. Retrieved November 21, 2014.
  27. ↑ "Q&A: Sorting Confusion Over Kansas Gay Marriage". ABC News. Associated Press. November 13, 2014. Retrieved November 13, 2014.
  28. ↑ "Amended Complaint". Scribd.com. U.S. District Court for Kansas. Retrieved November 26, 2014.
  29. ↑ "Order: Petition for initial en banc denied". Tenth Circuit Court of Appeals. Retrieved December 2, 2014.
  30. ↑ "Memorandum in Support of Plaintiffs' Motion for Preliminary Injunction". Scribd.com. U.S. District Court for Kansas. Retrieved December 8, 2014.
  31. ↑ "Defendant Moser's Motion to Dismiss". Scribd.com. U.S. District Court for Kansas. Retrieved December 11, 2014.
  32. ↑ "Memo in support of Defendants Hamilton and Lumbreras's Motion to Dismiss". Scribd.com. U.S. District Court for Kansas. Retrieved December 11, 2014.
  33. ↑ "Plaintiffs' opposition to Defendants Moser's motion to dismiss". Scribd.com. U.S. District Court for Kansas. Retrieved December 22, 2014.
  34. ↑ "Plaintiffs' opposition to Defendants Hamilton and Lumbreras's motion to dismiss". Scribd.com. U.S. District Court for Kansas. Retrieved December 22, 2014.
  35. ↑ "Reply in Support of Defendant Moser [sic]". Scribd.com. U.S. District Court for Kansas. January 5, 2015. Retrieved January 5, 2015.
  36. ↑ "Motion of Defendants". Scribd.com. U.S. District Court for Kansas. January 20, 2015. Retrieved January 20, 2015.
  37. ↑ "Order". Scribd.com. U.S. District Court for Kansas. March 17, 2015. Retrieved March 17, 2015.
  38. ↑ Esselink, Jean Ann (October 20, 2014). "Only One Lesbian Couple Managed To Marry During The Brief Time Same-Sex Marriages Were Legal In Kansas". The New Civil Rights Movement. Retrieved October 23, 2014.
  39. ↑ 39.0 39.1 Lowe, Peggy; Margolies, Dan (November 13, 2014). "Some Kansas Counties Issue Marriage Licenses to Gay Couples". KCUR. Retrieved November 13, 2014.
  40. ↑ "ACLU: Gay Kansas Couple Harmed By Marriage Delay". CBS St. Louis. November 11, 2014. Retrieved December 6, 2014.
  41. ↑ Andres, Craig (November 13, 2014). "Some Kansas counties denying same-sex marriage". KSN.com. Retrieved December 6, 2014.
  42. ↑ Hanna, John (November 18, 2014). "Gay couples wed in Kansas, but not in all counties". Kansas City Star. Associated Press. Retrieved November 21, 2014.
  43. ↑ "National Organization for Marriage Urges Kansas To Refuse To Accept Gay Marriage Order and To Press Its Case To The United States Supreme Court". National Organization for Marriage. November 13, 2014. Retrieved November 13, 2014.
  44. ↑ "Eleven Kansas Counties Now Issuing". Equality Kansas. November 17, 2014. Retrieved November 18, 2014.
  45. ↑ Decker, Patty (December 2, 2014). "Marion County issues first same-sex marriage license". Hillsboro (Kansas) Free Press.
  46. ↑ "First same sex marriage in Harvey County coming". The Kansan. November 20, 2014. Retrieved November 21, 2014.
  47. ↑ Corn, Mike (November 20, 2014). "Some courts OK with same-sex licenses". The Hays (Kan.) Daily News (MediaSpan).
  48. ↑ https://www.facebook.com/EqualityKansas?fref=nf
  49. ↑ http://kansasequalitycoalition.org/viewevent.php?e=5134&c=0
  50. ↑ 50.0 50.1 "Equality Kansas". Facebook. Retrieved December 29, 2014.
  51. ↑ "Marriage Update - January 26, 2015". Equality Kansas. Retrieved 27 January 2015.
  52. ↑ "Marriage Update - February 9, 2015". Equality Kansas. Retrieved February 9, 2015.
  53. ↑ Lysen, Dylan (November 19, 2014). "Kansas hanging in balance on same-sex ruling". The Ottawa Herald. Retrieved January 26, 2015.
  54. ↑ Hanna, John (November 19, 2014). "Kansas Supreme Court allows more gay marriages, Butler County ban remains". The Butler County (Kan.) Times Gazette (Gatehouse Media).
  55. ↑
  56. ↑ "Kansas agencies not recognizing same-sex marriages despite court rulings". Wichita Eagle. November 19, 2014. Retrieved November 20, 2014.
  57. ↑ Lawrence, Kansas, City Commission votes 4-1 for domestic partner registry
  58. ↑ Lawhorn, Chad (August 1, 2007). "Domestic partnership registry opens today". Lawrence Journal-World. Retrieved February 18, 2014.
  59. ↑ Kellaway, Mitch (May 28, 2014). "Topeka, Kan., Now Protects Gender Identity, Domestic Partnerships". Advocate.com. Retrieved June 29, 2014.
  60. ↑ Topeka logs two domestic partner registrations on first day

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