Fairness for All

Find the bill text here. More info here.





26 Comments for “Fairness for All”

  1. posted by Edward Brown on

    id want to read the propsal. also. how far is it going to go in the GOP Senate.

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    • posted by Jackson on

      FFA could have a much better chance at passage and enactment then the Equality Act, if backed by LGBT groups. But because HRC, Lambda and others are dead set against it, and are lying about it — claiming it rolls back LGBT protections when it does no such thing, it expands them — Democrats won’t support it. With Democrats and LGBT groups opposing it, Republicans won’t push it.

      However, if LGBT groups were supporting it, it would pass the Democratic House and win enough GOP support (maybe even substantial support ) to pass the Senate, and Trump would sign it. But that won’t happen now.

      Reply
      • posted by Edward Brown on

        Frankly, I doubt that the HRC has much weight with the GOP Senate. So, the idea thay the HRC is the reason the GOP Senate wont take up the bill is a bit silly.

        Reply
        • posted by Jakson on

          The GOP Senate is not going to go out on a limb to pass an LGBT anti-discrimination bill that the LGBTQ activists community is dead set against. That’s not how politics works.

          Reply
  2. posted by Tom Scharbach on

    The text of the “Fairness for All Act” is remarkably elusive (if anyone has or can find a link to the actual text of the current (2019) version of the proposal, please post the link), but it seems to be a retread of the proposals that have been floating around among conservative Christian circles since 2014.

    The most comprehensive explanation of the “Fairness for All Act” that I’ve found online is a 2017 article published by the Council for Christian Colleges & Universities, but even with that explanation, I am unable to answer the critical question: “Are the religious freedoms codified by the “Fairness for All Act” religion-neutral*, issue-neutral** and class-neutral***, or do the religious freedoms codified by the propose Act constitute targeted protection for discrimination on the basis of sexual orientation and/or gender identity.

    That is an important question, because it goes to the heart of the constitutionality of the proposed Act.

    If the proposed law is not religion-neutral, issue-neutral and class-neutral, then the courts will have to carve out a constitutional exception to equal treatment under the law, based either on (1) the idea that some religious beliefs are worthy of protection while others are not, granting particular religious beliefs elevated levels of protection, or (2) the idea that some classes of citizens are worthy of protection while others are not. Either idea raises serious constitutional issues.

    The religion-neutral, issue-neutral, class-neutral issue also has real world consequences.

    Let me give you an example: I have a close friend who is a conservative Christian.

    He owns a remodeling business, and is very good at what he does. He could easily expand his business because he has an excellent reputation for quality work at reasonable cost, and he turns down business regularly, taking on about a third of the business he could have.

    The reason that he does not expand his business is that he has a deeply-held, sincerely-held religious belief that married women should not work outside the home. Accordingly, he will not hire married women. Under applicable law, he can operate his business on that basis, but only so long as he remains under a threshold number of employees. Because his beliefs are deeply and sincerely held, he will not compromise his beliefs in order the expand his company.

    That’s fine, and that’s how Christians and other religious adherents should conduct their businesses — comply with the law, and make the sacrifices necessary to comply with the law within the strictures of their religious beliefs.

    But is a law that sanctions discrimination in hiring on the basis of sexual orientation and/or gender identity but does not permit my friend to refuse to hire married women fair to my friend? I would say, “Clearly not.” I believe that we should protect religious conviction (and hence, I support RFRA) but I think that protection should be general, not particular.

    ==============

    * A religious-neutral law protects the beliefs of all religions (and, preferably, non-religious conscience) rather than protecting the beliefs of a particular religion. A religious-neutral law, for example, would not differentiate between religious objection to same-sex marriages and religious objection to mixed-race marriages, protecting the former while not protecting the latter, as so many “religious freedom” proposals seem to do.

    ** An issue-neutral law protects the right of religious objection across the board, rather than cherry-pick specific issues and/or forms of religious objection entitled to protection. RFRA is an example of an issue-neutral law, while most of the “religious freedom” laws proposed in recent years are narrowly targeted to deal with specific issues.

    *** A class-neutral law applies equally to all, and does not differentiate between the rights/protections afforded to one class of citizens but not other classes of citizens. In the context of employment, housing and public accommodations laws, for example, a class-neutral law would not differentiate between sexual orientation and/or gender expression, on the one hand, and race and/or ethnicity, on the other, when applying the “religious freedom” protections afforded by the law.

    Reply
  3. posted by Jorge on

    Unlike the Equality Act…

    Sorry, I thought you were saying unlike the Equal Rights Amendment.

    That’s two strikes against whatever you’re talking about just by invoking the memory of ham-handed “equality” measures.

    “Why:

    LGBT and religious Americans increasingly find themselves in a lose-lose conflict with one another, resulting in ongoing lawsuits and endless cultural clashes.”

    How:
    “The Fairness for All Act amends the Civil Rights Act to add sexual orientation and gender identity as a protected class”

    I want to point out that the mere prospect of federal transgender rights protections is itself a benefit from “lose-lose” conflict between LGBT and religious Americans.

    I also think it’s because of Donald Trump’s election after being the candidate who let Caitlyn Jenner use his bathroom.

    Now, here’s what the right is winning: transgenders stay out of the military if the government has to pay for their treatment.

    Since the Donald Trump way seems to be the big winner based on this summary, I suppose I can keep an open mind.

    Reply
    • posted by Jorge on

      But is a law that sanctions discrimination in hiring on the basis of sexual orientation and/or gender identity but does not permit my friend to refuse to hire married women fair to my friend? I would say, “Clearly not.” I believe that we should protect religious conviction (and hence, I support RFRA) but I think that protection should be general, not particular.

      And thank you, Tom, for doubling to quadrupling my required reading.

      Reply
    • posted by Jorge on

      Yeesh! You ain’t kidding. 1AP sez it’s that Utah’s guy’s baby (or maybe he’s just the surrogate), but I can’t it on his list of bills he’s sponsoring.

      You’d think a congressperson who lists his sponsorship of 20 different Watching Grass Grow acts across half a decade would include such a major civil rights idea on his website. Oh, look, he’s co-sponsoring the 2019 prenatal nondiscrimination act.

      *Shrugs.* It hasn’t been introduced yet. Maybe not even drafted. This Rep gave a criticism against the Equality Act some months ago that said it needed to protect religious freedom. Other than that he’s been busier on co-sponsored legislation than sponsored legislation. Trying to build up his favors, is he?

      You know just because the creative minds know what they want to do, doesn’t mean they know how to actually write legislation that gets there. I don’t know what anyone’s waiting for, though. It’s as if someone’s trying to pass the bill the first time and is too scared to introduce it at the wrong time for fear of creating political infighting. Or, more likely, subjecting it to the amendment process.

      Well, I learned something new. Who knew there was such a thing as development hell in legislation?

      Reply
    • posted by Tom Scharbach on

      *Shrugs.* It hasn’t been introduced yet. Maybe not even drafted.

      I can’t find a trace of the “Fairness for All” legislation (under that name, anyway) in any of the states, so that doesn’t surprise me.

      “Fairness for All” legislation would be redundant at the federal level because all federal laws (including anti-discriminiation laws of general application such as the Civil Rights Act of 1964) are subject to RFRA, which legislatively expanded the Sherbert Test (Sherbert v. Verner and Wisconsin v. Yoder) to laws of general application after Employment Division held that laws of general application need meet only a “rational basis” threshold to be constitutional.

      RFRA, as originally enacted in 1993, applied to state law as well as federal law. The “religious freedom” question became an issue under state laws after City of Boerne v. Flores held that the application of RFRA to state law was unconstitutional. As a result, we have a dual system at present: (1) federal laws of general application are subject to the Sherbert Test under RFRA, but (2) state laws of general application are subject to the “rational basis” test under Employment Division, unless a state has enacted a state-level RFRA or equivalent.

      Reading what material I can find on the proposed legislation, it quickly becomes obvious that “Fairness for All” legislation is “wolf in sheep’s clothing” attempt to introduce RFRA at the state level under a different name, because state-level RFRA legislation has failed in state after state in recent years specifically because a state-level RFRA would carve out a religion-based exemption under non-discrimination laws.

      I don’t have an objection to RFRA or the Sherbert Test, or applicability of the Sherbert Test to all laws, including laws of general application such as non-discrimination laws; in fact, I believe that the Sherbert Test is the correct test, and that the test should be the standard at both state and federal level, applicable to non-discrimination laws as well as all other laws.

      However, I get off the boat with conservatives (including conservative homosexuals) on this issue because state-level RFRA legislation (including, I suspect, the “Fairness for All” proposal, although I can’t be sure until I can actually read the text) is almost always tied to the application of RFRA only in the case of non-discrimination laws applicable to sexual orientation and/or gender identity alone, rather than being tied to the application of RFRA in the case of all non-discrimination laws.

      In my opinion, that violates the core principle of equal treatment under the law. I believe firmly that all “religious freedom” laws should be religion-neutral, issue-neutral and class-neutral, as noted in an earlier comment.

      On something of a side note, I’ll start taking conservative homosexual concern for “religious freedom” more seriously if and when I see conservative homosexuals advocating for application of the Sherbert Test across the board, not just in the case of non-discrimination laws protecting sexual orientation and/or gender identity.

      That hasn’t happened yet. In fact, I’ll bet that we could turn over every rock in the country and fail to uncover a conservative homosexual making the argument that the Sherbert Test should apply to non-discrimination laws covering religion, race, ethnicity, gender and so on.

      I don’t think that is going to change. Conservative homosexuals know that bringing state law up to the level of federal law (RFRA is applicable to all laws, including the Civil Rights Act of 1964) is a position that cannot be sustained in the face of conservative Christian insistence on a double standard; that is, that conservative Christians believe that they should be free to discriminate against others (specifically gays/lesbians and transgenders), but believe that no one at all should be free to discriminate against them.

      Reply
      • posted by Jorge on

        Reading what material I can find on the proposed legislation, it quickly becomes obvious that “Fairness for All” legislation is “wolf in sheep’s clothing” attempt to introduce RFRA at the state level under a different name

        You’ll probably get your wish eventually. Saying businesses under 15 employees are not public accommodations–I mean I know I’ve heard that a thousand times but that sounds like a giant shave across the board on the Civil Rights Act to me.

        On something of a side note, I’ll start taking conservative homosexual concern for “religious freedom” more seriously if and when I see conservative homosexuals advocating for application of the Sherbert Test across the board, not just in the case of non-discrimination laws protecting sexual orientation and/or gender identity.

        I think that’s too hypothetical and not pragmatic enough. We should solve the problems that are in front of us and not go chasing off after phantom problems.

        Reply
        • posted by JohnInCA on

          I don’t think a broad “businesses under 15” rule would be terrible controversial, even if it went further then public accommodations and gave the okay to discrimination in hiring as well.

          The problem is, conservatives don’t want to limit such an exception to businesses under 15 people, they want to cover Hobby Lobby too.

          Reply
          • posted by Jorge on

            “Burwell v. Hobby Lobby, 573 U.S. ___ (2014), is a landmark decision[1][2] in United States corporate law by the United States Supreme Court allowing closely held for-profit corporations to be exempt from a regulation its owners religiously object to, if there is a less restrictive means of furthering the law’s interest, according to the provisions of the Religious Freedom Restoration Act (RFRA).”

            https://en.wikipedia.org/wiki/Burwell_v._Hobby_Lobby_Stores,_Inc.

            Sounds like more or less the same thing as this phanton law to me. Businesses over 15 employees have to find a way to get it done. But as long as it gets done, the government can’t force them to get it done *this* way.

  4. posted by JohnInCA on

    I second Tom’s questions.

    Every concrete proposal of “fairness for all” I’ve seen has protected Jack Phillips, but not Lester Maddox, and for a variety of reasons, that shouldn’t be acceptable.

    So the “how” is very important here. Like with that Australian rugby guy that’s back in the news. Fired for his public statements denigrating large swaths of the population. Would his firing be prohibited since he said “because God”? Religious activists believe it should be (though somehow I doubt they’d feel the same about a Muslim guy talking about “infidels”). So how they define “religious exercise” and “free speech” is important because while traditionally it hasn’t meant that your employer has to tolerate you bringing disrepute to them (even if it’s “because God”), the religious activists want to make them.

    Same for proselytizing at work. Currently employers can ban it, and discipline you for doing so. Which is a gripe among religious activists, who think that being told to not harass your co-workers about religion is “discrimination”.

    So I’ll have to beg pardon, but religious activists have done nothing to earn the benefit of the doubt here. As a group, they’ve been fighting since LGBT activists wanted to get rid of sodomy laws. Everything since then has just been trying to preserve dominance in as many areas as possible, and never any real effort towards “fairness”.

    Reply
  5. posted by Tom Scharbach on

    Tom: “On something of a side note, I’ll start taking conservative homosexual concern for “religious freedom” more seriously if and when I see conservative homosexuals advocating for application of the Sherbert Test across the board, not just in the case of non-discrimination laws protecting sexual orientation and/or gender identity.

    Jorge: “I think that’s too hypothetical and not pragmatic enough. We should solve the problems that are in front of us and not go chasing off after phantom problems.

    What a slide, and how typical of conservative homosexuals!

    I have news for you, Jorge. The minute that legislators have to put pen to paper in order to draft the proposed “Fairness to All Act”, conservative homosexuals (and everyone else will have the problem, because the draft will either have to (a) limit application to non-discrimination laws as those laws are applicable to sexual orientation and/or gender identity, or (b) broaden application to non-discrimination laws as those laws are applicable to all protected classes. When pen goes to paper, conservative homosexuals are going to have to take one position or the other. Your days of sliding away from the issue will be over.

    Of course, that is the beauty of illusionary legislation like the “Fairness to All Act” is that the proposed legislation is illusionary. Because conservative homosexuals don’t have to put pen to paper, they can pretend that there is no issue (that the issue raised are a case of “chasing after phantoms”), and continue to use “religious freedom” as a hammer to pound on gays and lesbians for seeking equal treatment under the law.

    So keep it up. But sooner or later, pen will have to go to paper and you will have to face up to the issue.

    Reply
  6. posted by Tom Scharbach on

    “*Shrugs.* It hasn’t been introduced yet. Maybe not even drafted.”

    It looks like a federal version of the “Fairness for All Act” may be introduced in the House at some point soon. We do not have the text yet, but we can keep an eye out to see if it is introduced, and if so, what it says.

    I’m not quite sure what the point of the “religious exemption” provisions of the bill might be***, unless the bill offers heightened protection not afforded by RFRA for anti-gay religious conviction, but the legislative intent preamble to the bill may make that clearer.

    My guess is that RFRA doesn’t offer sufficient protection for conservative Christians, because RFRA requires that anti-gay Christians (and Catholics and Mormons, too) must show a substantial burden on religious exercise in order to trigger the protections that RFRA affords. That’s been the case with other bills of this sort at the federal level, which have reduced “substantial burden” to mere “burden” or removed the “burden” trigger altogether.

    I guess we’ll see when the bill is actually introduced.

    ===============

    *** The Civil Rights Act of 1964 (which it amends) is already subject to RFRA, which provides that the federal government may not substantially burden a person’s exercise of religion unless the government demonstrates that (1) the burden is in furtherance of a compelling governmental interest and (2) the burden is the least restricted means of furthering that compelling governmental interest.

    Reply
  7. posted by JohnInCA on

    Looks like the text has hit the internet: https://www.washingtonblade.com/content/files/2019/12/STEWUT_013_xml-11.28.19.pdf.

    Reply
  8. posted by Edward Brown on

    if the GOP-run Senate passed it, then i might take it seriousely. I might be support as a temporary compromise.

    Yet, the GOP-backed Senate wont pass it. not because of the HRC, but because of the ever powerful “Christian right”

    Reply
    • posted by Jackson on

      Again, the GOP Senate is not going to go out on a limb to pass an LGBT anti-discrimination bill that the LGBTQ activists community is dead set against. and will condemn them for passing. That’s not how politics works.

      Reply
  9. posted by Edward Brown on

    Again. When has the GOP cared much about them LGBT “activists” one way or another? It has not been a factor in crafting their platform or their legislative agenda.

    You cannot hide behind them “activists”, when your party hasnt been interested in their concerns.

    The LGBT activists cant be blamed for the fate of a GOP bill in a GOP controlled Senate. Not when the GOP has had ZERO problem ignoring what the activists disliked/wanted, even the gay Republican activists.

    thats not how politics work.

    Reply
  10. posted by Tom Scharbach on

    A number of thoughts:

    (1) I agree that the Fairness for All Act (FFA) is DOA.

    The bill is opposed by 20+ left/liberal LGBT rights groups and by 90+ conservative Christian advocacy groups. Democrats, having passed the Equality Act in the House, are not motivated to abandon the Equality Act and sign on to the FFA in light of opposition from LGBT rights groups. Republicans, given the near-universal opposition of conservative Christians to the FTAA, have no motivation to sign on to the FFA, either.

    The idea that the FFA is a viable “compromise” at this point is a pipe dream. The author of the FTAA, Representative Chris Stewart of Utah, acknowledges that the FFA has no chance of being enacted into law, but instead describes the bill as an “act of faith” and a starting point for future discussion. The FFA (or similar legislation) might become more viable in the future, but I doubt that the FFA will even get out of committee in this session.

    (2) With respect to the FFA:

    (a) The bill is complex, amending the Civil Rights Act of 1964 and several other purpose-specific federal laws that have formed the backdrop of the current and ongoing battle between governmental agencies enforcing non-discrimination laws/regulations and religious institutions, such as churches, hospitals and adoption agengies.

    (b) The bill (as does the Equality Act) expands the scope of the Civil Rights Act of 1964 by modernizing the definition of “public accommodation” and by adding “sexual orientation” and “gender identity” as protected classes.

    (c) The bill (unlike the Equality Act) preserves application of RFRA to the Civil Rights Act of 1964 and the other purpose-specific federal laws amended by the bill. RFRA provides that the federal government may not substantially burden a person’s exercise of religion unless the government demonstrates that (1) the burden is in furtherance of a compelling governmental interest and (2) the burden is the least restrictive means of furthering that compelling governmental interest.

    (d) The bill provides specific, targeted additional protections over and above RFRA for religious institutions, businesses and individuals who discriminate on the basis of sexual orientation and/or gender identity. The bill expressly provides (if the version published by Stephen is accurate) that the protections do not extend to religious institutions, businesses and individuals who discriminate against protected classes on any other basis (e.g. race, ethnicity, gender and so on.)

    (3) Measuring the bill against the “equal means equal” test (that is, religion-neutral, issue-neutral and class-neutral), the bill does not fare well. The bill is religion-neutral on its face, but is neither issue-neutral (because it provides that heightened protections are granted only with respect to issues related to sexual orientation and/or gender identity) nor class-neutral (because government-sanctioned discrimination is targeted at gays, lesbians and transgenders and none other).

    (4) I want to see the bill as actually enrolled and the legislative analysis before going further in analysis.

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  11. posted by Tom Scharbach on

    The bill has been enrolled as HR 5331, and referred to the House Judiciary, House Education and Labor, House Ways and Means, House Financial Services, House Oversight and Reform, and House Administration committees.

    The official text is not yet available (“As of 12/09/2019 text has not been received for H.R.5331 – To prohibit discrimination on the basis of sex, sexual orientation, and gender identity; and to protect the free exercise of religion.”) on either the House website or the Library of Congress website. The text will probably be available within a matter of days.

    The bill was introduced by Representative Chris Stewart of Utah on Friday, December 6, and has eight co-sponsors:

    Rep. Bishop, Rob [R-UT-1]
    Rep. Curtis, John R. [R-UT-3]
    Rep. Fitzpatrick, Brian K. [R-PA-1]
    Rep. Simpson, Michael K. [R-ID-2]
    Rep. Upton, Fred [R-MI-6]
    Rep. Stefanik, Elise M. [R-NY-21]
    Rep. Amodei, Mark E. [R-NV-2]
    Rep. Joyce, David P. [R-OH-14]

    The legislative analysis is not yet available.

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    • posted by Jorge on

      The official text is not yet available (“As of 12/09/2019 text has not been received for H.R.5331 – To prohibit discrimination on the basis of sex, sexual orientation, and gender identity; and to protect the free exercise of religion.”)

      Seeing that message come up after all this anticipation (the news went national!) was one of the most fun “screw you” moments I’ve had in quite a while.

      If the worst you have to say about the bill is that your bottom line “does not fare well”, then it seems worth a look.

      The bill both “modernizes the definition of public accommodation” and adds expansive religious rights protections.

      I probably shouldn’t voice this thought, but I have to ask what your views would be of these two ideas if they were in separate legislation.

      The first (the idea that businesses under 15 employees are not public accommodations) could never pass on its own. It legalizes Jim Crow policies.

      It’s not just a Brazilian single mom waxer thing. I think independent hair grooming contractors in all-white communities should be prohibited from discriminating and be ready to work with all types of natural hair (no I don’t!)

      That the second would be more likely to pass on its own, maybe that’s just a reflection of gay being the new black.

      The idea seems to be that a combined package would create something narrower than the sum of its parts. So no I don’t agree with you that “conservative homosexuals” necessarily have to take one position or another. That suggests that we are chasing after a phantom problem. The real solution will be to the real problem, including the need to avoid unintended consequences.

      Anyway, the Equality Act, EDNA, the Don’t Ask Don’t Tell Repeal, those all failed to pass over and over and over again.

      The idea that this legislation can somehow join the Defense of Marriage Act or the Patriot Act as things that could be fast-tracked to passage, which is what I suspect there is an attempt to do with all this coalition-building, is complete and utter fallacy. What it does is it gets Republicans in the game of civil rights reform (something we are not known for nationally). It will put pressure on Democrats to moderate their own civil rights bills and make them more sensible. The one that passes will be not the only civil rights bill available, just the best. That’s a good thing as far as I’m concerned.

      Reply
  12. posted by Kosh III on

    I just called the office of my congress member (D) and spoke against this.

    I didn’t bother with my senators as Alexander and Marshamarshamasha are both bought and paid for by the bigots in the GOP.

    Reply
  13. posted by Tom Scharbach on

    I probably shouldn’t voice this thought, but I have to ask what your views would be of these two ideas if they were in separate legislation.

    After of decade of posting about the topic of “religious freedom” on this forum, there is nothing secret about my views:

    (1) I believe that sexual orientation and gender identity should be included as protected classes under the Civil Rights Act of 1964 and other federal, state and local anti-discrimination laws/regulations.

    Accordingly, I support that part of the FFA that add sexual orientation and gender identity to the protected classes under the Civil Rights Act of 1964 and the other laws amended by the FFA. I would support standalone legislation adding sexual orientation and gender identity to the Civil Rights Act of 1964 and the other laws amended by the FFA.

    (2) I believe that “religious freedom” laws should be religion-neutral, issue-neutral and class-neutral. Accordingly, I oppose that part of the FFA that grants heightened protection to specific, particular forms of anti-LGBT religious conviction and singles out LGBTs for targeted, government-sanctioned discrimination under the guise of “religious freedom”. I would oppose standalone legislation containing the provisions of the FFA.

    I’ve said this many times before, but I will say it again so that there is no doubt in your mind:

    (a) I believe that the Sherbert/Yoder” test** as embodied in RFRA is the correct test for “religious freedom” exemption from the law, and that the test should be applicable to all laws (federal, state and local) without distinction between “targeted laws” and “laws of general application”.

    (b) I believe that the “substantial burden” leg of the test is a critical aspect of properly balancing between societal good and religious freedom. I do not think that we should lessen the “substantial burden” test.

    (c) I believe that distinguishing between religious convictions (e.g. granting legal protection to one religious conviction but not another, or granting heightened legal protection to one religious conviction but not another) is a form of establishment. I do not think that the government should be the arbiter of the value of religious conviction, and I believe that all laws should be religion-neutral.

    (d) I believe that non-religious conscience/conviction should be afforded the same protection as religious conscience/conviction, and should be governed by the Sherbert/Yoder” test on an equal footing with religious conscience/conviction.

    If you pay attention to those principles, predictive analysis about how I stand with respect to particular legislation is a no-brainer. Just run the “equal means equal” test.

    ===================

    ** Government may not substantially burden a person’s exercise of religion unless the government demonstrates that (1) the burden is in furtherance of a compelling governmental interest and (2) the burden is the least restricted means of furthering that compelling governmental interest.

    Reply
  14. posted by Edward Brown on

    The bill aint going anywhere in the GOP Senate. They have the alt-right/religious right to listen to.

    Moderate Democrats in the House are looking at tough elections with pressure coming from the right.

    Basically, the white nationalists and Christian conservatives are running the Congressional show. at least when it comes to gay rights.

    Reply

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