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Gay Cake

...on serious topics that don't fit anywhere else at present.
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Alan H
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Re: Gay Cake

#21 Postby Alan H » October 26th, 2016, 1:08 am

Latest post of the previous page:

Nick wrote:
Alan H wrote:
animist wrote:I have to say that this does not seem well reasoned to me. It does seem to entail that my example - a socialist who would not produce a cake with a rightwing message - could be penalised, because this baker had not already declared that he would refuse to make products with political messages
I think you're missing the point that it's all about prohibited grounds/protected characteristics and only about these: they can't discriminate on protected characteristics, but they could refuse to bake the cake with a right-wing message on it because that does not entail discrimination of persons on the grounds of any protected characteristic.


I don't think you are right, Alan, because the judgement says this: [my bold]

The judge said that even if she had been persuaded that the appellants had not been aware of the respondent’s religious belief and/or political opinion, she would have found that the appellants discriminated against him by treating him less favourably on the grounds of their own religious beliefs and political opinion.
I think that's taking it out of context. It goes on to say:
What they may not do is provide a service that only reflects their own political or religious message in relation to sexual orientation. (my emphasis)


Political persuasion is not protected under discrimination legislation: I think this is saying that it would not matter whether the discrimination in relation to sexual orientation was because of the religious beliefs or the political beliefs of the bakers. The reason the bakers had for discriminating is irrelevant (whether political or religious); the fact that they did discriminate - because of the protected characteristic of sexual orientation - is what was unlawful.
Alan Henness

There are three fundamental questions for anyone advocating Brexit:

1. What, precisely, are the significant and tangible benefits of leaving the EU?
2. What damage to the UK and its citizens is an acceptable price to pay for those benefits?
3. Which ruling of the ECJ is most persuasive of the need to leave its jurisdiction?

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Alan H
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Re: Gay Cake

#22 Postby Alan H » October 26th, 2016, 1:10 am

Nick wrote:I am also struggling to accept this:
What the respondent wanted the appellants to do would not require them to promote or support gay marriage


If that is the case, I'm sure you wouldn't mind printing some Tory leaflets, Alan.... :wink: You wouldn't be supporting or promoting them.... :D

I (quite lawfully) refuse on the grounds that I'm neither a printer, nor a business offering a service to the public nor a promoter.
Alan Henness

There are three fundamental questions for anyone advocating Brexit:

1. What, precisely, are the significant and tangible benefits of leaving the EU?
2. What damage to the UK and its citizens is an acceptable price to pay for those benefits?
3. Which ruling of the ECJ is most persuasive of the need to leave its jurisdiction?

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animist
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Re: Gay Cake

#23 Postby animist » October 26th, 2016, 9:43 am

Alan H wrote:I think you're missing the point that it's all about prohibited grounds/protected characteristics and only about these: they can't discriminate on protected characteristics, but they could refuse to bake the cake with a right-wing message on it because that does not entail discrimination of persons on the grounds of any protected characteristic.
I think you are right, as a matter of law. I suppose that I object in principle to making certain characteristics protected in the way that they seem to be since it seems in itself to be a form of discrimination

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Nick
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Re: Gay Cake

#24 Postby Nick » October 26th, 2016, 9:55 am

Alan H wrote:
Nick wrote:I am also struggling to accept this:
What the respondent wanted the appellants to do would not require them to promote or support gay marriage


If that is the case, I'm sure you wouldn't mind printing some Tory leaflets, Alan.... :wink: You wouldn't be supporting or promoting them.... :D

I (quite lawfully) refuse on the grounds that I'm neither a printer, nor a business offering a service to the public nor a promoter.
Of course you can, Alan, for the reasons you state, but would you mind, if you were a printer offering a service to the public?

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Alan H
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Re: Gay Cake

#25 Postby Alan H » October 26th, 2016, 10:00 am

animist wrote:
Alan H wrote:I think you're missing the point that it's all about prohibited grounds/protected characteristics and only about these: they can't discriminate on protected characteristics, but they could refuse to bake the cake with a right-wing message on it because that does not entail discrimination of persons on the grounds of any protected characteristic.
I think you are right, as a matter of law. I suppose that I object in principle to making certain characteristics protected in the way that they seem to be since it seems in itself to be a form of discrimination
I don't understand. Surely the reason for protecting certain characteristics is because people with those characteristics have historically - and are still - discriminated against because of them and that the only way to change behaviour is to make such discrimination illegal?

Anyway, I had forgotten this was in Northern Ireland and it seems they do have political view as a protected characteristic - presumably because of the very close association with religion - so it's completely different from the rest of the UK. Having said that, I don't think that had any bearing on the court's final decision: the direct discrimination was on the grounds of sexual orientation because of the religions views held by the bakers.
Alan Henness

There are three fundamental questions for anyone advocating Brexit:

1. What, precisely, are the significant and tangible benefits of leaving the EU?
2. What damage to the UK and its citizens is an acceptable price to pay for those benefits?
3. Which ruling of the ECJ is most persuasive of the need to leave its jurisdiction?

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Alan H
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Joined: July 3rd, 2007, 10:26 pm

Re: Gay Cake

#26 Postby Alan H » October 26th, 2016, 10:10 am

Nick wrote:
Alan H wrote:
Nick wrote:I am also struggling to accept this:

If that is the case, I'm sure you wouldn't mind printing some Tory leaflets, Alan.... :wink: You wouldn't be supporting or promoting them.... :D

I (quite lawfully) refuse on the grounds that I'm neither a printer, nor a business offering a service to the public nor a promoter.
Of course you can, Alan, for the reasons you state, but would you mind, if you were a printer offering a service to the public?
What a strange hypothetical question. If I was a printer who had a printing business, offering services to the general public a member of whom placed an order for something (for the purposes, I assume the wording would not in itself be illegal) would I refuse? Well, as was made clear in the bakers' appeal, I would be free to refuse if, say, I had a blanket ban on all political leaflets (similar to what happened recently when the C of E tried to get their Lord's Prayer advert screened in cinemas), but your question is really asking whether I would fulfil the order or break the law. Which do you think I would do, Nick?
Alan Henness

There are three fundamental questions for anyone advocating Brexit:

1. What, precisely, are the significant and tangible benefits of leaving the EU?
2. What damage to the UK and its citizens is an acceptable price to pay for those benefits?
3. Which ruling of the ECJ is most persuasive of the need to leave its jurisdiction?

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Nick
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Re: Gay Cake

#27 Postby Nick » October 26th, 2016, 10:14 am

Alan H wrote: but your question is really asking whether I would fulfil the order or break the law.
No it isn't! If that was what I wanted to know, I would have asked that question! I asked if you would mind. :)

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animist
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Re: Gay Cake

#28 Postby animist » October 26th, 2016, 10:19 am

Alan H wrote:I don't understand. Surely the reason for protecting certain characteristics is because people with those characteristics have historically - and are still - discriminated against because of them and that the only way to change behaviour is to make such discrimination illegal?
I dare say that is true, but that does not mean that this noble purpose cannot go too far. I think that Tatchell, as well as Nick and I, would have supported, in the earlier case, the gay couple who were denied accommodation because the owners of the establishment were homophobes, and we are trying to point out that there are differences between that case and this. Also, what if the intended customer had been, not a gay person, but a heterosexual who supported gay marriage? Would this person be able to claim discrimination?

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animist
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Re: Gay Cake

#29 Postby animist » October 26th, 2016, 10:21 am

Nick wrote:
Alan H wrote: but your question is really asking whether I would fulfil the order or break the law.
No it isn't! If that was what I wanted to know, I would have asked that question! I asked if you would mind. :)
I have to agree with Nick that you are being a bit evasive, Alan. I think we want to know how you feel, not whether the judgment was correct according to the law

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Alan H
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Re: Gay Cake

#30 Postby Alan H » October 26th, 2016, 10:25 am

Nick wrote:
Alan H wrote: but your question is really asking whether I would fulfil the order or break the law.
No it isn't! If that was what I wanted to know, I would have asked that question! I asked if you would mind. :)
You've lost me: if i was to refuse (assuming the conditions specified), it would be unlawful so your question is still: would I mind doing it or would I mind breaking the law? I hope the answer to the latter is obvious. For the former, my feelings don't come in to it as you should know - it's be a purely commercial decision and conscience/ethics/morality rarely are a factor in such things...
Alan Henness

There are three fundamental questions for anyone advocating Brexit:

1. What, precisely, are the significant and tangible benefits of leaving the EU?
2. What damage to the UK and its citizens is an acceptable price to pay for those benefits?
3. Which ruling of the ECJ is most persuasive of the need to leave its jurisdiction?

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Alan H
Posts: 22418
Joined: July 3rd, 2007, 10:26 pm

Re: Gay Cake

#31 Postby Alan H » October 26th, 2016, 10:28 am

animist wrote:
Nick wrote:
Alan H wrote: but your question is really asking whether I would fulfil the order or break the law.
No it isn't! If that was what I wanted to know, I would have asked that question! I asked if you would mind. :)
I have to agree with Nick that you are being a bit evasive, Alan. I think we want to know how you feel, not whether the judgment was correct according to the law
Evasive or simply not willing or able to imagine what my feelings might be in the future if I was put in such a hypothetical position that is so remote and unlikely? But why should my feelings be in any way relevant?
Alan Henness

There are three fundamental questions for anyone advocating Brexit:

1. What, precisely, are the significant and tangible benefits of leaving the EU?
2. What damage to the UK and its citizens is an acceptable price to pay for those benefits?
3. Which ruling of the ECJ is most persuasive of the need to leave its jurisdiction?

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Alan H
Posts: 22418
Joined: July 3rd, 2007, 10:26 pm

Re: Gay Cake

#32 Postby Alan H » October 26th, 2016, 10:32 am

animist wrote:
Alan H wrote:I don't understand. Surely the reason for protecting certain characteristics is because people with those characteristics have historically - and are still - discriminated against because of them and that the only way to change behaviour is to make such discrimination illegal?
I dare say that is true, but that does not mean that this noble purpose cannot go too far. I think that Tatchell, as well as Nick and I, would have supported, in the earlier case, the gay couple who were denied accommodation because the owners of the establishment were homophobes, and we are trying to point out that there are differences between that case and this. Also, what if the intended customer had been, not a gay person, but a heterosexual who supported gay marriage? Would this person be able to claim discrimination?

I think that's covered by the judge:
We do not accept this. The benefit from the message or slogan on the cake could only accrue to gay or bisexual people. The appellants would not have objected to a cake carrying the message “Support Heterosexual Marriage” or indeed “Support Marriage”. We accept that it was the use of the word “Gay” in the context of the message which prevented the order from being fulfilled. The reason that the order was cancelled was that the appellants would not provide a cake with a message supporting a right to marry for those of a particular sexual orientation. This was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community. Accordingly this was direct discrimination.
Alan Henness

There are three fundamental questions for anyone advocating Brexit:

1. What, precisely, are the significant and tangible benefits of leaving the EU?
2. What damage to the UK and its citizens is an acceptable price to pay for those benefits?
3. Which ruling of the ECJ is most persuasive of the need to leave its jurisdiction?

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Nick
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Joined: July 4th, 2007, 10:10 am

Re: Gay Cake

#33 Postby Nick » October 26th, 2016, 10:39 am

Alan H wrote:
Nick wrote:
Alan H wrote: but your question is really asking whether I would fulfil the order or break the law.
No it isn't! If that was what I wanted to know, I would have asked that question! I asked if you would mind. :)
You've lost me: if i was to refuse (assuming the conditions specified), it would be unlawful so your question is still: would I mind doing it or would I mind breaking the law? I hope the answer to the latter is obvious. For the former, my feelings don't come in to it as you should know - it's be a purely commercial decision and conscience/ethics/morality rarely are a factor in such things...
OK, So you'd do anything (legal) for the money....? :wink:

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Alan H
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Re: Gay Cake

#34 Postby Alan H » October 26th, 2016, 10:57 am

Nick wrote:
Alan H wrote:
Nick wrote:No it isn't! If that was what I wanted to know, I would have asked that question! I asked if you would mind. :)
You've lost me: if i was to refuse (assuming the conditions specified), it would be unlawful so your question is still: would I mind doing it or would I mind breaking the law? I hope the answer to the latter is obvious. For the former, my feelings don't come in to it as you should know - it's be a purely commercial decision and conscience/ethics/morality rarely are a factor in such things...
OK, So you'd do anything (legal) for the money....? :wink:
FFS. Nick. What do you think I am? A Tory?
Alan Henness

There are three fundamental questions for anyone advocating Brexit:

1. What, precisely, are the significant and tangible benefits of leaving the EU?
2. What damage to the UK and its citizens is an acceptable price to pay for those benefits?
3. Which ruling of the ECJ is most persuasive of the need to leave its jurisdiction?

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animist
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Joined: July 30th, 2010, 11:36 pm

Re: Gay Cake

#35 Postby animist » October 26th, 2016, 12:07 pm

Alan H wrote:
animist wrote:
Alan H wrote:I don't understand. Surely the reason for protecting certain characteristics is because people with those characteristics have historically - and are still - discriminated against because of them and that the only way to change behaviour is to make such discrimination illegal?
I dare say that is true, but that does not mean that this noble purpose cannot go too far. I think that Tatchell, as well as Nick and I, would have supported, in the earlier case, the gay couple who were denied accommodation because the owners of the establishment were homophobes, and we are trying to point out that there are differences between that case and this. Also, what if the intended customer had been, not a gay person, but a heterosexual who supported gay marriage? Would this person be able to claim discrimination?

I think that's covered by the judge:
We do not accept this. The benefit from the message or slogan on the cake could only accrue to gay or bisexual people. The appellants would not have objected to a cake carrying the message “Support Heterosexual Marriage” or indeed “Support Marriage”. We accept that it was the use of the word “Gay” in the context of the message which prevented the order from being fulfilled. The reason that the order was cancelled was that the appellants would not provide a cake with a message supporting a right to marry for those of a particular sexual orientation. This was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community. Accordingly this was direct discrimination.

I assume that you refer to my last question. Could you maybe answer it directly, referring to the judge if you like? I cannot see that the quote does clearly cover my question if the respondent were not gay

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animist
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Re: Gay Cake

#36 Postby animist » October 26th, 2016, 12:11 pm

Alan H wrote:
animist wrote:
Nick wrote:No it isn't! If that was what I wanted to know, I would have asked that question! I asked if you would mind. :)
I have to agree with Nick that you are being a bit evasive, Alan. I think we want to know how you feel, not whether the judgment was correct according to the law
Evasive or simply not willing or able to imagine what my feelings might be in the future if I was put in such a hypothetical position that is so remote and unlikely? But why should my feelings be in any way relevant?
when I say "feelings" I suppose I mean your opinion on the rights and wrong of this case (as opposed to the legal correctness of the judgment). I find it hard to accept that you cannot project into the hypothetical situation, but all right, sobeit. Even if you cannot imagine being a baker or printer, can you not imagine having a friend who was and asked your opinion on a particular ethical/legal dilemma? Also, do you see no difference between this case and the earlier one I mentioned concerning accommodation?

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animist
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Re: Gay Cake

#37 Postby animist » October 26th, 2016, 12:28 pm

Nick wrote:
Alan H wrote: but your question is really asking whether I would fulfil the order or break the law.
No it isn't! If that was what I wanted to know, I would have asked that question! I asked if you would mind. :)
also, the issue is not about breaking the law, since the whole point of the case revolved on whether the baker's decision was legal or not! In other words, the legal position at the time that the incident occurred was not clear

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Alan H
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Re: Gay Cake

#38 Postby Alan H » October 26th, 2016, 12:30 pm

animist wrote:
Alan H wrote:
animist wrote:I dare say that is true, but that does not mean that this noble purpose cannot go too far. I think that Tatchell, as well as Nick and I, would have supported, in the earlier case, the gay couple who were denied accommodation because the owners of the establishment were homophobes, and we are trying to point out that there are differences between that case and this. Also, what if the intended customer had been, not a gay person, but a heterosexual who supported gay marriage? Would this person be able to claim discrimination?

I think that's covered by the judge:
We do not accept this. The benefit from the message or slogan on the cake could only accrue to gay or bisexual people. The appellants would not have objected to a cake carrying the message “Support Heterosexual Marriage” or indeed “Support Marriage”. We accept that it was the use of the word “Gay” in the context of the message which prevented the order from being fulfilled. The reason that the order was cancelled was that the appellants would not provide a cake with a message supporting a right to marry for those of a particular sexual orientation. This was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community. Accordingly this was direct discrimination.

I assume that you refer to my last question. Could you maybe answer it directly, referring to the judge if you like? I cannot see that the quote does clearly cover my question if the respondent were not gay

I think that does cover it: the case was not about the respondents sexual orientation but about the wording on the cake. The original judge also said:
The judge concluded that the appellants disagreed with the religious belief and political opinion held by the respondent with regard to the change in law to permit gay marriage and, accordingly, they treated him less favourably by refusing to provide him with the service sought. In those circumstances the appellants had directly discriminated against him. The judge said that even if she had been persuaded that the appellants had not been aware of the respondent’s religious belief and/or political opinion, she would have found that the appellants discriminated against him by treating him less favourably on the grounds of their own religious beliefs and political opinion.
The appeal judge said of this:
The second was whether the judge was correct as a matter of law in finding that the appellants “did have the knowledge or perception that the respondent was gay and/or associated with others who are gay” in light of the reasoning contained in her judgment? Although it is clear that the judge spent some time explaining her conclusion that the appellants had knowledge or perception either consciously or unconsciously that the respondent was gay or associated with others who were gay, she did not rely on that finding in her conclusion. She found that the appellants cancelled the order as they opposed same sex marriage. If she had come to the view that the order was cancelled because the respondent was perceived as being gay, this would have been the most straightforward case of direct discrimination and would undoubtedly have been plainly expressed by her. We conclude therefore that the finding was not material to her determination.
Alan Henness

There are three fundamental questions for anyone advocating Brexit:

1. What, precisely, are the significant and tangible benefits of leaving the EU?
2. What damage to the UK and its citizens is an acceptable price to pay for those benefits?
3. Which ruling of the ECJ is most persuasive of the need to leave its jurisdiction?

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Alan H
Posts: 22418
Joined: July 3rd, 2007, 10:26 pm

Re: Gay Cake

#39 Postby Alan H » October 26th, 2016, 12:34 pm

animist wrote:
Alan H wrote:
animist wrote:I have to agree with Nick that you are being a bit evasive, Alan. I think we want to know how you feel, not whether the judgment was correct according to the law
Evasive or simply not willing or able to imagine what my feelings might be in the future if I was put in such a hypothetical position that is so remote and unlikely? But why should my feelings be in any way relevant?
when I say "feelings" I suppose I mean your opinion on the rights and wrong of this case (as opposed to the legal correctness of the judgment). I find it hard to accept that you cannot project into the hypothetical situation, but all right, sobeit. Even if you cannot imagine being a baker or printer, can you not imagine having a friend who was and asked your opinion on a particular ethical/legal dilemma? Also, do you see no difference between this case and the earlier one I mentioned concerning accommodation?
I don't understand this continual focus on my feelings, but I wasn't asked about my feelings about the rights or wrongs of this particular case; I was asked about a completely different hypothetical case that had nothing to do with the grounds of the appeal ruling.

I'm not sure what the differences are between this ruling and the B&B ruling - what do you see them as?
Alan Henness

There are three fundamental questions for anyone advocating Brexit:

1. What, precisely, are the significant and tangible benefits of leaving the EU?
2. What damage to the UK and its citizens is an acceptable price to pay for those benefits?
3. Which ruling of the ECJ is most persuasive of the need to leave its jurisdiction?

User avatar
Alan H
Posts: 22418
Joined: July 3rd, 2007, 10:26 pm

Re: Gay Cake

#40 Postby Alan H » October 26th, 2016, 12:38 pm

animist wrote:
Nick wrote:
Alan H wrote: but your question is really asking whether I would fulfil the order or break the law.
No it isn't! If that was what I wanted to know, I would have asked that question! I asked if you would mind. :)
also, the issue is not about breaking the law, since the whole point of the case revolved on whether the baker's decision was legal or not! In other words, the legal position at the time that the incident occurred was not clear
Surely no less so than any other case before a court: it's up to the court to decide whether a law was breached on the facts of the case and understanding of the law before them.
Alan Henness

There are three fundamental questions for anyone advocating Brexit:

1. What, precisely, are the significant and tangible benefits of leaving the EU?
2. What damage to the UK and its citizens is an acceptable price to pay for those benefits?
3. Which ruling of the ECJ is most persuasive of the need to leave its jurisdiction?

User avatar
animist
Posts: 6068
Joined: July 30th, 2010, 11:36 pm

Re: Gay Cake

#41 Postby animist » October 27th, 2016, 6:41 pm

Alan H wrote:
animist wrote:also, the issue is not about breaking the law, since the whole point of the case revolved on whether the baker's decision was legal or not! In other words, the legal position at the time that the incident occurred was not clear
Surely no less so than any other case before a court: it's up to the court to decide whether a law was breached on the facts of the case and understanding of the law before them
actually, not at all, surely. Most court cases revolve around whether the defendant was guilty of the crime, not whether there was a crime or other breach of the law. I imagine that cases like the cake one were in fact deliberately staged in order to test the law, and there's nothing wrong with that


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