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May 26, 2009
The Prop 8 decision – and dissent
Posted: 02:36 PM ET
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Program Note: Tune in tonight to hear more on the ruling on AC360° at 10 p.m. ET.

A recent poll shows that those who have a gay friend or relative are more likely to support gay marriage.
A recent poll shows that those who have a gay friend or relative are more likely to support gay marriage.

Barclay Palmer
AC360° Senior Producer

The California Supreme Court's 6-1 ruling was 135 pages, but its key rationale that Prop 8 was a "permissible" amendment to California's constitution was summed up in a few lines.

The dissent, summed up in two paragraphs, joined same-sex marriage proponents in arguing that Prop 8 violates the "equal protection" clause of the California constitution and federal civil rights law.

Many believe that the ruling will be appealed to the U.S. Supreme Court, or that there will be another voter referendum on it.

Here are key quotes from the ruling - and the dissent.

From the ruling by Chief Justice George:

In summary, we conclude that Proposition 8 constitutes a permissible constitutional amendment (rather than an impermissible constitutional revision), does not violate the separation of powers doctrine, and is not invalid under the “inalienable rights” theory proffered by the Attorney General. We further conclude that Proposition 8 does not apply retroactively and therefore that the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid.

Having determined that none of the constitutional challenges to the adoption of Proposition 8 have merit, we observe that if there is to be a change to the state constitutional rule embodied in that measure, it must “find its expression at the ballot box.”

From the dissent by Justice Moreno:

Proposition 8 represents an unprecedented instance of a majority of voters altering the meaning of the equal protection clause by modifying the California Constitution to require deprivation of a fundamental right on the basis of a suspect classification. The majority’s holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution.

This could not have been the intent of those who devised and enacted the initiative process. In my view, the aim of Proposition 8 and all similar initiative measures that seek to alter the California Constitution to deny a fundamental right to a group that has historically been subject to discrimination on the basis of a suspect classification, violates the essence of the equal protection clause of the California Constitution and fundamentally alters its scope and meaning. Such a change cannot be accomplished through the initiative process by a simple amendment to our Constitution enacted by a bare majority of the voters; it must be accomplished, if at all, by a constitutional revision to modify the equal protection clause to protect some, rather than all, similarly situated persons. I would therefore hold that Proposition 8 is not a lawful amendment of the California Constitution.

48 Comments
More about: 360° Radar •  Barclay Palmer •  Proposition 8
48 Comments
Michael Haas   May 26th, 2009 3:02 pm ET

I think its funny that a state that elected Obama. The first black Pres. can take a way rights from a group of people. The only group in our Free Country that does not have full rights. Its also funny that the majority of people who voted to end gay rights in CA were Black. So a group that had no right a few 100 years ago, and still has others hating them would vote for a black Pres. Who I do love, but would take the right away from another grope of people. The blacks in CA should be a shame of themselves, and the Mormon Charch that spent millions to stop Gay rights should also be a shamed. What you believe in your group does not give you the right to take rights from others. I don't try to change you, do not try to change me. This is a sad day in America.

Cindy   May 26th, 2009 3:03 pm ET

The courts did the right thing in Cali. The people voted twice to ban gay marriage and that's how it should be If there is another vote and it changes to allow them to marry then that's how it should be. But as for now the people of Cali have spoken and that should not be up to a judge to change anything.

We live in a Democracy and we can't go changing everything just because a few aren't happy with a ruling. If that's the case then a lot of rulings should be overturned...like lets say..abortion..or polygamy..or sex offenses against kids. Hey..they are a minority too and they have rights. Where do you stop it?

Cindy..Ga.

Michael Haas   May 26th, 2009 3:04 pm ET

Also I feel that we will have our rights soon. Keep up the fight. We will never stop for freedom.

Melissa   May 26th, 2009 3:19 pm ET

I'm very disgusted with the population of California that would do this to people.

LJRoy   May 26th, 2009 3:25 pm ET

While it's great that the ban for same sex "marriage" is upheld, I am disaappointed that the existing "marriages" will remain valid.

The Catholic church do not consider these "marriages" valid and as a devout Catholic, I cannot and will not recognize these "marriages" whether I agree or not.

Rick Shur   May 26th, 2009 3:29 pm ET

Ask the "marriage defenders" if they would favor a Constitutional amendment to REALLY defend marriage from its most serious threats: adultery and divorce. My Defense of Marriage Amendment would state that "Marriage is a permanent bond between a man and woman, indissoluble, with no chance of divorce until one partner dies. Furthermore, adultery by either spouse is an unpardonable crime that will be met with the Biblically proscribed penalty of death." This amendment would allow men and women who are devoted to God to have a really defended marriage, while the rest of us (feckless heterosexuals and immoral gays) could settle for a less prestigious civil union.

Rick Shur   May 26th, 2009 3:34 pm ET

Ask the “marriage defenders” if they would favor a Constitutional amendment to REALLY defend marriage from its most serious threats: adultery and divorce. My Defense of Marriage Amendment would state that “Marriage is a permanent bond between a man and woman, indissoluble, with no chance of divorce until one partner dies. Furthermore, adultery by either spouse is an unpardonable crime that will be met with the Biblically prescribed penalty of death.” This amendment would allow men and women who are devoted to God to have a really defended marriage, while the rest of us (feckless heterosexuals and immoral gays) could settle for a less prestigious civil union. [TYPO corrected- proscribed/prescribed]

Rene Pedraza del Prado   May 26th, 2009 3:48 pm ET

I invite you all, my beloved fellow Americans, Gay, Straight, Young, Old, Racist, Bigots, NRA members, KKK members, Neo Nazi groups...I invite you all to my marriage with my beloved partner of 15 years in Maine next year on the 4th of July. He and I will wed in the lovely, tolerant and smog-free state of Maine to celebrate our freedom of choice, freedom of love and EQUALITY under the law. I welcome you all with open arms in the name of LOVE, that you may witness a normal, full-fledged, American family, sisters and brothers and aunts and uncles and nephews and nieces and grandchildren all standing together, in the face of whatever God we worship to state our love, commitment, decency, respectability and the AUDACITY OF DIGNITY!

We will stand beside a lighthouse, as symbolic of our endurance and ability to persevere and prevai in the unyielding onslaught of discrimination by our fellow citizens, our lighthouse will be a true beacon of HOPE (Mr. Obama – had you finished off Don't Ask Don't Tell after yoru Inaugural Speech – this might have played differently)

This is an insult to the Constitution of California and a pock on the face of California. I invite all national and international businesses to boycott all things California. And so we remain, sadly, an ill informed, vengeful, angry, hateful mob. A third world country that supports hatred over civil rights, bigotry over compassion, intolerance over understanding and cooperation. No worries my friends. We shall prevail. The Dark Side never wins!

Daniel Geddis   May 26th, 2009 3:54 pm ET

@ Cindy – Your comments reveal your blinding ignorance. Next time Hun, educate yourself on history a little before spouting out your senseless comments.

Sandra Harris   May 26th, 2009 3:56 pm ET

Ban what's natural for some? Oh the arrogance and confusion. Arguing with reality separates people from people.

Scott Stodden   May 26th, 2009 3:57 pm ET

I beleive it is so wrong that proposition 8 was not reversed, such a terrible day in this country when equal rights are taken away. Everywhere else is allowing same-sex marriage so why not California? I truly hope this is taken to the Supreme Court and the ruling is overturned.

Scott Stodden (Freeport, Il)

Daniel Geddis   May 26th, 2009 3:57 pm ET

@ LJRoy – so as a 'devout Catholic' do you recognize the civil marriage of a male & female atheist?

Per your statements you seem to say that you blindly follow your Catholic church no matter whether you agree or not. So if the Catholic church decided that non-white people were not allowed into the Catholic church you would then not "recognize" them in your church whether you "agree or not" ....???

Kellie   May 26th, 2009 4:03 pm ET

I am disturbed that people keep calling this a civil rights issue! Why allowing two people of the same sex to marry is considered a civil right is beyond me. Why can't I marry my dog? My sister? My brother? my cactus? Is that civl right too?? I am just so disgusted by all the references to "rights' we could go on and on on this issue...

Why cant pedophiles marry kids?? Isn't that their right too?

David Peck   May 26th, 2009 4:04 pm ET

Today California Distinguished Itself as Leader in Discrimination

The California Supreme court—the same one that decided a year ago that a state law confining marriage to a union between man and woman was discriminatory on the basis of sexual orientation—upheld Proposition 8. In doing so, the court exercised leadership in discriminatory behavior, modeling it for its citizens, and for other states. This is a dark day for our constitution.

Underlying the passage of the ballot measure and today’s court ruling is, in my opinion, the more apt question of whether ballot measures should even be allowed to enable a religious view to dictate what's acceptable in a state's business behavior.

Is the simple activity of state-issued marriage licensing a religious activity, or a business activity?

If it’s both, then why would it cater to a particular (in this case more conservative) religion / religious view versus another? If it’s simply religious, then one might suggest that the state get out of the marriage sacrament entirely. Bottom line, I think it’s a business activity. If that’s the case, then it certainly should not discriminate against anyone.

After all, once the state's constitution starts limiting business licenses for religious reasons, it's a slippery slope.

Put any specific religion or sect's agenda aside and you end up with the absurdity of preventing certain groups of people from receiving other state licenses. What's next? No more drivers’ licenses for Native Americans? No more business licenses for the handicapped? No more liquor licenses for recovering alcoholics?

Bottom line, today’s Supreme Court Ruling has started California circling the drain of state-sanctioned religious bias and discrimination.

I’m looking forward to the leadership to come: perhaps action by the state legislature, or a new ballot question, one which hits the issue much more on point, such as: "Shall amendments to the State Constitution, past or present, enable the State to ban certain licenses for specific groups of people based on age, race, religion, gender, physical impairment, size, or sexual orientation?"

I think the answer would be, indeed, no.

Rod Beilfuss   May 26th, 2009 4:04 pm ET

I am so, so glad to be living in Canada. True land of freedom, and the real BRAVE, who do not fear minorities. "Oh no, gays are getting married, what does that mean, am I less of a married man? Is my marriage threatened? Oh no".
Please...

Dear Americans, I invite you folks to move up here, to a land free of dogmas, free of medieval mentality.

You are all welcome!

Just bring a jacket. ;)

A Hansen   May 26th, 2009 4:07 pm ET

I'm all for it if it means I can marry couple of wives too. Why take that right away from me. LOL!

Lisa Christiano Rose   May 26th, 2009 4:07 pm ET

What a sad day for humanity. The churches in America wonder why people are disillusioned to the point of abandoning their faith. Perhaps it has something to do with the intolerance and bigotry delivered from the pulpit.

If we were to be strict constructionists of the Bible, we would possess slaves, kill people for working on the Sabbath, stone people for growing two different crops in the same field and declare public outrage for those who eat shellfish. Why are we not following the word of God to the letter?

A friend of mine is a conservative Christian in Massachusetts. I asked her what the impact of married gays has been on her life over the last five years.

She said, "None at all." You mean, gay married people haven't infiltrated the schools in their quest to make everyone gay?

I wonder sometimes if this country is truly progressive or regressive. If it was up the those on the religious right, we'd be heading backwards at lightning speed.

Max   May 26th, 2009 4:08 pm ET

The prop 8 supporters need to get their own houses in order. Banging on about religion and god as if they themselves are truly holy. You people have so little compassion and no understanding about what truly is spiritual or love.

If you were happy in your own marriages, you would be far less concerned about our relationships.

The public voted for change, but then you cling to old ideas and views as if your lives depended on it. Shame on you prop 8 supporters your victory is as empty as your lives.

Stacy   May 26th, 2009 4:11 pm ET

@Kellie: There's this thing called consent. Yes, gay marriage is a civil rights issue.

Lisa in CA   May 26th, 2009 4:12 pm ET

Hopefully the discussion this evening will be on amendment versus revision of the state constitution. The Court was not ruling on whether or not this proposition was discriminatory (as it did the first time) but as to the legitimacy of amending versus revising.

Next year, the anti-Prop 8 folks will have a proposition on the ballot amending the state constitution to overturn this. Think of this not as discrimination but as was done with Prohibition.

Ultimately, gays will be allowed to marry (in every sense and meaning of the word)

Lopa   May 26th, 2009 4:13 pm ET

@Cindy – So majority always rules even if the majority is taking away human rights from others? If we took a vote and the majority decided to reinstate slavery, would that be ok because we are a democracy and the majority says it's ok?

We are a democracy, but we can't use that to take away basic human rights from others.

Grace   May 26th, 2009 4:14 pm ET

While some people may feel sick inside at the outcome of this we must remember that it was the people of California who decided this. The entire reason for us being a democracy is for the people to decide, and they did. We must now accept the laws, respect them, and step back to get a new perspective. Stop the anger, the hate on both sides, and the constant fighting. It is what it is. I have a deep love for this country and I think we often forget how much freedom we actually have, especially when something of this nature happens. Remember that we are a great nation, even if you do not agree with this decision.

Michael Pattinson   May 26th, 2009 4:15 pm ET

Ok, so we have a ruling.
I believe this actually can be translated into a whole new opportunity for the LGBT community to come up with a future WIN-WIN situation. We do NOT need to continue with a "We want to be dinosaurs too" approach to the ancient and somewhat unworkable premises of existing marriage institutions.

The gay community is incredibly creative. We can innovate beautifully.

Going forward from here I believe we should modify our "Yes to gay marriage" to "Legalize fully our better concept of shared partnerships" and come up with a far better description of what would actually be a marriage type of structure that would actually work beautifully and even maybe make straight/heterosexual couples want something just as good. Clearly, from divorce stats marriage is not working out too well for heterosexuals as it is a dinosaur institution.

"Shareage" (or some other appropriate term) would embody a new and vital paradigm for partnerships that could be a loving and happy arrangement, with legal support, that could be an inspiration for our human culture for the years to come.

Max   May 26th, 2009 4:17 pm ET

@ Stacy

Kellie does not have the mental capacity to comprehend that. Her dog however fully understands and is so grateful it does not have to wed her.

Chi Town   May 26th, 2009 4:22 pm ET

Obama should be ashamed of himself... he won today... but there is always tomorrow

Shaggy   May 26th, 2009 4:24 pm ET

I honestly don't understand why gay couples want to the state to endorse their marriage. Whether marriage is legal or illegal, it won't change they way they live one bit. What I don't understand even more is why people want to make same sex marriage illegal in the first place. You are free to practice a religion that doesn't tolerate gay marriage, but why does it matter what our government does? I don't think the role of government should play a part in this debate at all. However, that stupid prop was put on the ballet and the people voted against it, so the judges had to respond they way they did.

Anyway, this is one of the stupidest political debates. If you're against gay marriage do you really think a ban will lower the level of homosexuality in our culture? And if you believe in same sex marriage, do you honestly believe that this issue is anything more than a symbolic one? Sure, there are some minor legal concerns involved in the issue, but nobody cares about that stuff. 99.9% of the drive behind any gay couple to get married is the symbolism behind it (unless of course you are planning on marrying into money, but that's another story).

Marriage should be done at church. Leave the state out of it. Let people live however they want to live.

Mike, Syracuse, NY   May 26th, 2009 4:25 pm ET

You can't take away a 'right' that never existed in the first place. The gay community would be better served by trying to put into place legislation granting identical legal rights for civil unions. Marriage has always been a religious concept, and calling it marriage will always get resistance. The majority would very likely vote for a comprehensive civil union law. You need to know what battles can be won.

@Stacy, I'm sure there is 'consent' in polygamous marriages, and in incest cases. Consent isn't the issue, common sense is.

Daniel Geddis   May 26th, 2009 4:27 pm ET

@ Kellie – um.... really? REALLY??? That's your argument? That's so sad I'm not even mad at you for saying it. It's just so silly that I feel bad for you. lol really....?????

BZ   May 26th, 2009 4:28 pm ET

Finally, a state constitutional vote upheld by a state court. Is there still hope for three, not two, equal branches of government?

Joyce   May 26th, 2009 4:28 pm ET

@Michael Pattinson: I agree with you 100%.

Mari   May 26th, 2009 4:30 pm ET

@ LJ Roy........ and the rest of the Christians blogging here, please be careful. No, the Catholic church will not acknowledge Gay marriage. That's fine. People forget that we all have Freedom of Speech and Freedom to disagree. Fine.

However, Jesus clearly asks us to "Love one another....." His meaning is clear, LOVE EVERYONE! Regardless of sexual orientation, race, religious creed, and atheists!

I am a registered Independent, that voted for Barack Obama. I ask the LGBT community why is a Civil Union not enough? Thank you.

Enid   May 26th, 2009 4:30 pm ET

I'm not gay, but I'm for equal rights–for EVERYONE. Shame on California. Shame on the close-minded, self-righteous, pseudo-spiritual, arrogant, self-centered, hypocritical so-called "Americans" who cite Freedom for their sins while crushing the freedom of "the others."

Evelyn McCann   May 26th, 2009 4:31 pm ET

Our country was founded on faith.Love, Charity. I do not believe in same sex Marriage. We are one nation under God. If this is the future for our grandchildren our country is in bad shape. I pray California turns around and we have better judges in the future who stand up for God. Yes I have said it before and I say again, Communists will win without guns be cause we are beating ourselves by turning against God and the Constitution of our fathers. Thank you, Evelyn Katy, Texas

Lisa in CA   May 26th, 2009 4:32 pm ET

@Lopa, we are a representative democracy, not an actual democracy in that sense of the word.

@Cindy, our Constitution is designed to protect the minority from the tyranny of the majority. In other words, the majority is not always correct. If it were, segregation would be alive and thriving; jobs would be held by middle-aged white men and we would not have a female Secretary of State nor most likely any females on the bench or in Congress.

ABF   May 26th, 2009 4:37 pm ET

@ Michael Haas

Your comment is made in ignorance. The myth that black people are the ones that passed prop 8 is not true. The amount of black people that actually voted is not known, especially those who voted specifically on prop 8. In addition, there is merely not enough registered black voters (who know how many of them voted) to have swayed the ruling just because of their decisions. It's another myth that created a scapegoat and try to pit minority against minority. Look up your facts before perpetuating harmful lies.

Caine   May 26th, 2009 4:39 pm ET

@ Cindy: Wow. "If that’s the case then a lot of rulings should be overturned…like lets say..abortion..or polygamy..or sex offenses against kids. Hey..they are a minority too and they have rights. Where do you stop it?" Really? Where do we stop it? Why do certain individuals always seem to classify homosexuals in the same category as sex offenders or things that have no relation to same-sex relationships at all? What does a homosexual relationship have to do with your rights as an American? It's 2009. We should have moved way past discrimination by any means. Grow up America. Equality for all. Sad to see there are still close-minded individuals that seem to think that their "morals" and "values" have to be imposed on everyone..sad.

KD Whitman   May 26th, 2009 4:46 pm ET

I'm very confused – the job of the state supreme court is to interpret the law NOT to decide the will of the voters or writers of a ballot measure. As Judge Moreno pointed out this is a violation of a constitutional right under the law. The same rights given to undocumented people living in Ca about 10 years ago with Prop 187. Why is it ok to give equality to non-citizens but not gay citizens. The ruling doesn't make sense and I hope they appeal to a higher court.

D Jackson   May 26th, 2009 4:49 pm ET

Let's just eliminate marriage altogether as a civil institution and acknowledge that marriage is a religious institution. The only relationship that should grant rights and responsibilities should be a civil union that is available to everyone. Make marriage a purely religious ceremony that has religious and personal meaning but no bearing on legal rights. Churches can permit couples to marry or not, according to their beliefs. That ends the discussion of whether marriage is just between a man and a women or not. It's whatever you think it is.

Lisa Christiano Rose   May 26th, 2009 4:58 pm ET

Don't forget that Prop 8 was entire political strategy. The religious right knew it was the one wedge issue that would drive Republicans to the polls to vote for McCain and other Republican politicians and issues. They knew that the "fear" of gay married people would compel people to vote. That fear was reinforced by their absurd TV ads using teachers to warn parents that gay married people would influence kids in a "gay way." And they knew the Mormons were the ones with the pockets deep enough to buoy the movement.

Add to this, the fact that there is a stigma within the black community about homosexuality. So some of the same people who rallied for Obama, voted yes on Prop 8. You'd think black people would know the sting of discrimination and never want to inflict it on another minority.

I'm a straight, white woman who feels such outrage over this. Not because my sister or brother is gay. But because I was raised to believe that discrimination is wrong. In my church, we were taught that everyone is equal in the eyes of God. Plain and simple.

Patrick   May 26th, 2009 5:03 pm ET

I'm so tired of hearing homesexuals say that their civil rights are being violated. To compare themselves to minorities and our struggles is ludicrous. They can flip back and forth from being gay to straight whenever they feel like. Ask any minority if that's possible !!

Max   May 26th, 2009 5:22 pm ET

@Mari

I don't want a marriage in a church I would be happy with a Civil Union that gives all the same federal and state benefits of Marriage.

But at the same time I recognize that many gays and lesbians are Christians who regularly attend church and need to have that church acceptance to *feel* married.. They should be able to have a marriage in every sense of the word. If their pastor is prepared to marry them. I do feel a pastor etc should be able to decline on a individual basis if it conflicts with their own beliefs. But the decision should not be made for them by the church as a whole.

I feel organized religion causes no end of trouble and separation. If you want to get closer to God, step away from religion and find your own divine spark. But I don't think any other person should have to live by my beliefs...I only want to have the freedom to run my own life.

I truly believe gay marriage would take nothing away from hetrosexual marriage and I cannot understand why people who it does not effect would put so much energy, money and hatred into supposedly defending it. Why not fight against divorce and adultery instead and change your own lives and relationships?

CJ Patterson   May 26th, 2009 5:28 pm ET

As a CO resident, I was overjoyed at the opportunity to participate in your election. I was moved to see so many people of my age group take to the streets in November to cheer your victory. Our voice rose: we want to see a better America. As my eyes glistened with hopeful tears, I KNEW that you would be the voice of reason leading my fellow country-people to social responsibility ... you can ignite a hunger in your following and spark our collective and creative forces.

That said, I am weary of sitting in the back of the bus and waiting for peaceful protest and conscientious objections to overthrow the heinous discrimination that my community is subjected to in these 'united' States. Supporting the UN resolution on equality is NOT ENOUGH. There are too many people celebrating the heart-wrenching defeat of true American values that occurred in CA today, and if you are silent on this issue, you condone their malice and ignorance.

Please do not walk past us today.

CJ Patterson   May 26th, 2009 5:33 pm ET

If another minority's rights were taken away today, there would be hell to pay. Remember the horrible race riots from years past? Perhaps it's time the LGBT community take to the streets (and the churches that back anti-equality measures) and riot. Peaceful dissent, social protest, writing letters, and blowing whistles seem to do very little against the deeply rooted hatred so many Americans apparently feel for gay people.

Max   May 26th, 2009 5:36 pm ET

@Patrick

If gays can flip between straight and gay, then heterosexuals can too! Do you sometimes feel like planting a big sloppy kiss on another man? Of course not! I can no be more attracted to the opposite sex, than a black person can change to white!

Asking us to be with the opposite sex is EXACTLY the same as telling a black person to be white.

Colleen   May 26th, 2009 5:50 pm ET

I honestly cannot believe some of the ignorance on this page. PERIOD. The only people who should have any say in same sex marriage are LGBTQ members-not the churches, not mormons. We don't tell you how to live, how dare you tell us... Go hang out with your kids or do something productive with yourself.

KZ   May 26th, 2009 5:54 pm ET

Here's the thing: I don't care who anyone wants to marry. It's none of my business. And whom I choose to marry is none of anybody's business as far as I'm concerned. It's that simple. Those who claim it is their business...that the future of this country depends on gays not being allowed to get married...are, in my opinion, extremely insecure individuals who, evidently, need to force their views and opinions and lifestyles on others in order to justify theirs. So what if I'm in love with a cactus and want to marry it? Mind your own business.

Annie Kate   May 26th, 2009 6:04 pm ET

I wouldn't get too upset over this yet – it can still go to the US Supreme Court for ruling and the proposition could be struck down there. What I would like to know on this decision is that if a gay couple who were married in a state allowing them to marry moved to California for some reason would their marriage be recognized like the marriages being grandfathered in ? Usually one state will honor what another state did – if not think of the mess it would be.

Lloyd Pohl   May 26th, 2009 8:01 pm ET

So, what happens if a couple gets married in Massachusetts and moves to California or any of the other backward states? Are they still married if they are a man and a woman but not if they are two men or two women? S

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