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Its Momentousness Is Baked in the Cake

Such is the state of American law and of American society that the decision of a single Colorado baker not to make a cake for a customer because of his religious objection to what the cake was for will now go before the Supreme Court. Argument in the “cake case,” Masterpiece Cakeshop v. Colorado Civil Rights Commission, will take place next Tuesday, December 5th.

Pastry chef Jack Phillips had opened his own one-shop bakery in a suburb of Denver after two decades of working in other bakeries. He called it “Masterpiece” with the intention of offering more artistic baked goods. In 2012, at a time when same-sex marriage was illegal in Colorado, two men sought to have Phillips supply a cake for a Colorado celebration of their wedding to take place in Massachusetts. Phillips, who serves homosexual customers for other occasions, said his Christian faith prevented him from being involved in same-sex marriages. The two men filed a complaint with the Colorado Civil Rights Commission, and their supporters picketed Masterpiece bakery. Another bakery gave the two men a free cake.

The Colorado Civil Rights Commission found Phillips in violation of the Colorado Civil Rights Act, which forbids the denial of service in a “place of public accommodation” for, among other reasons, “sexual orientation.” The Act exempts churches and places “principally used for religious purposes.” The commission found Phillips guilty of a violation of the statute and required: that he bake cakes for same-sex weddings or give up baking wedding cakes altogether; that he keep records for two years of any bakery orders he rejected; and that he “take remedial measures, including comprehensive staff training.”

Phillips employed members of his family in his bakery, so the “comprehensive” retraining involved them. His continuing to refuse to bake for same-sex weddings cost him  40 percent of his business and most of his employees. When he appealed to the Colorado Court of Appeals, that court upheld the commission’s decision. The Colorado Supreme Court refused to review the appeals court, so the appeal was taken to the U.S. Supreme Court.

Masterpiece’s defense is a multi-faceted invocation of the Free Speech and Free Exercise Clauses of the First Amendment. Phillips claims that requiring him to bake a cake with a message on it for a gay wedding would violate his free speech rights as an artist; would force him to engage in unwanted “expressive conduct”; and would require “compelled speech” of him. Forcing him to participate in a same-sex wedding would, moreover, violate his right to the free exercise of religion. Finally, he argues that free speech and free exercise rights combine into a joint “hybrid” right all its own.

Masterpiece represents the new kind of constitutional law that is emerging from certain states and their courts. In four other cases, state courts have ruled against Christians seeking to avoid participation in same-sex weddings. In the case that was tried in New York, a court ordered a Christian married couple who rented out their farm for various occasions to host a gay wedding, fined them $10,000, awarded $1,500 in compensatory damages to each of the lesbian partners for “hurt, humiliations, and mental anguish,” and ordered the farm’s owners to “establish anti-discrimination training and procedures at the farm.”

In Elane Photography v. Willock, the bedrock case cited in almost every brief filed in the Supreme Court in Masterpiece, the New Mexico Supreme Court ruled and awarded attorney’s fees against a Christian photographer who had refused to photograph a commitment ceremony of two women. A court in Washington state ruled against a florist who had previously sold flowers to the same gay man about 20 times; when the man brought up buying flowers for his same-sex wedding, she refused based on her Christian beliefs about marriage. An Arizona court ruled against a printer of, among other items, wedding invitations, who had a policy of refusing to do printing for same-sex weddings.  The printer had other policies concerning whom she would not print for: businesses that she believed exploited the environment or exploited women or objectified the female body.

Free Speech

Citing his own concept of his baking as an art, including the extra work involved, Phillips maintains that his custom cakes are artistic expressions protected by the Free Speech Clause. In support, he primarily cites the case of Ashcroft v. Free Speech Coalition (2002), in which the Supreme Court held the federal Child Pornography Prevention Act of 1996 to be unconstitutional because it was overbroad and prohibited speech of “serious literary, artistic, political, or scientific value.” The Colorado appeals court, while recognizing the skill and art involved in making a cake, concluded that the expressiveness of the cake was more likely to be attributed to the customer than to Phillips and, that, therefore, Phillips personal free speech rights had not been violated.

Phillips also argues that his cake-baking is the kind of “expressive conduct” that the Court has recognized as protected by the Free Speech Clause. He cites Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995), in which the Supreme Court turned back that group’s attempt to force its way into the Boston St. Patrick’s Day parade. In the decision the court said: “the Constitution looks beyond written or spoken words as mediums of expression.”

Likewise in Texas v. Johnson (1989), the Court found flag-burning to be expressive conduct and ruled that a Texas statute forbidding the desecration of certain public objects violated the Free Speech Clause. The Court ruled there that “speech” was not limited to the spoken or written word; that the physical act of flag-burning was expressive; and that government may not “proscribe particular conduct” that has such expressive elements.

In opposition, the Colorado Civil Rights Commission, and supporting amici, point to Rumsfeld v. Forum for Academic and Institutional Rights (2006), wherein the Supreme Court ruled that a federal law requiring universities to allow military recruiters on campus as a condition of federal funding was constitutional under the First Amendment. The Court found that the challenged statute affected conduct, not speech, and did not have the effect of requiring universities to endorse or approve the work of the recruiters.

Phillips’ legal adversaries likewise adduce the Supreme Court’s decision in Unites States v. O’Brien (1968), which upheld another federal statute that criminalized the burning of  draft cards. The Court stated that the effect on the “symbolic speech” of the antiwar card-burners was incidental and not greater than necessary.

Quoting the Supreme Court in Wooley v. Maynard (1978), Phillips argues that the First Amendment “prohibits ‘compelled speech’ and protects the right of individuals to hold a point of view different from the majority and to refuse to foster . . . an idea they find morally objectionable.” In that case a Jehovah’s Witness, objecting on the basis of his religion, took the words “or Die” off the license plate of his car, which, like all other New Hampshire plates, displayed the state’s “Live Free or Die” motto. The Court ruled that New Hampshire could not force him to display the full message.

In West Virginia v. Barnette (1943), the Court had upheld the right of a Jehovah’s Witness schoolchild to refuse to salute the American flag or recite the Pledge of Allegiance. Barnette, like Wooley, was a free speech case that was initially filed as a free exercise case. Barnette is the source of the much-quoted statement about the “fixed star in our constitutional constellation” that “no official” may “prescribe what shall be orthodox” in “matters of opinion.”

In opposition to Phillips’ claim that compelling him to bake a cake is also an unwanted compelling of his speech, the state of Colorado and its amici argue that the imposition on Phillips’ free speech rights is minimal and its effect “unlikely” to be interpreted as his personal speech. The commission maintains that the Colorado law requires only conduct, not expression, from Phillips and that “the compelled conduct here is not expressive.”

Free Exercise of Religion

Phillips argues that requiring him to bake same-sex wedding cakes would make him a compelled and “an active participant” in a “sacred event” not of his choosing. He cites the 1993 case of Lukumi Babalu Aye v. City of Hialeah, in which the Supreme Court overturned city ordinances banning the possession of animals for sacrifice. Members of the Santeria religion alleged that the animal sacrifice was central to their religion and that the ban violated their free exercise rights. Lukumi was built on the older case of Sherbert v. Verner (1963), in which the Court required that unemployment benefits be paid to a Seventh Day Adventist who had been fired because she refused to work on Saturday.

In Lukumi, the Court concluded that it must go outside of the text of the city ordinances to look at “the design” and “motivation” behind the ordinances. “Apart from the text,” the majority opinion declared, “the effect of a law in its real operation is strong evidence of its object.” The Court held that the ordinances were not a neutral attempt to prevent cruelty to animals but that their sole purpose was “the suppression of Santeria’s central element, animal sacrifice.”

In what has become a legal landmark, the Lukumi Court went outside of the language of the enacted ordinances and emphasized statements in related city-council resolutions and statements of council members that showed what the council really intended: “suppression of the central element of the Santeria worship service,” for “it cannot be maintained that city officials had in mind a religion other than Santeria.” (One thinks here of the federal courts’ nullifying President Trump’s refugee executive orders by going “outside the text of a law” —judges cited the statements of then-candidate Trump and said these were key to discerning President Trump’s purpose in promulgating those orders, which they found unconstitutional and discriminatory.)

Phillips picks up on the Lukumi Court’s going “outside the text” by arguing what the Colorado Civil Rights Commission really “had in mind,” namely, that “no one with Phillips’ beliefs stands a chance.” He cites the attitude of Commissioner Diann Rice, who said during the hearing of his case:

I would like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the [H]olocaust, whether it be—I mean, we, we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.

The main obstacle to Phillips’ free exercise claim is certain to be the decision of the  Supreme Court in Employment Division v. Smith (1990), in which the Court, with Justice Scalia writing the majority opinion, ruled that Oregon could deny unemployment benefits to two persons fired from their jobs for the illegal use of peyote. The two were Native Americans and had ingested peyote in a religious ceremony. The Court found that the state’s drug law was “a neutral law of general applicability” that was binding on users and non-users of peyote alike. It was not targeted at religion. If everyone could have his own religious objection to laws passed for the general welfare, that would in effect permit every citizen “to become a law unto himself,” the Court held.

As Court-watchers know, Smith cited and very substantially relied on Reynolds v. United States (1878), in which the Supreme Court ruled that Mormon polygamy could be prohibited notwithstanding a free exercise challenge in the then-territory of Utah. The more recent significance of Reynolds, be it noted, is that it was completely ignored by both sides in the Supreme Court’s two same-sex marriage cases. Why? Gay marriage advocates did not want the Court to consider a case in which it had upheld traditional marriage, and traditional marriage advocates did not want the Court to consider a case in which it had turned aside a free exercise claim.

Equally well known is that Smith engendered fierce bipartisan objections in the U.S. Congress. Senators Charles Schumer (D-N.Y.) and Ted Kennedy (D-Mass.) led the way in writing the Religious Freedom Restoration Act, which passed in 1993 nearly unanimously. The Supreme Court, however, later invalidated that part of the law which applied to acts of state governments. With its amendment in 1994, RFRA now applies only to programs of the federal government and requires a compelling governmental interest and the least restrictive means in burdening religion. That Act, not the Free Exercise Clause, was the basis of the Supreme Court’s 2014 decision in the Hobby Lobby case. Thus, Hobby Lobby has been only a tangential case in the free exercise briefings here in Masterpiece.

Phillips and supporting amici argue that Smith does not require a decision against him.  He cites Lukumi on “the effect of a law in its real operation”—in other words that the Colorado antidiscrimination law has not functioned as a neutral law of general applicability. The Colorado Civil Rights Commission ruled that cake artists who support same-sex marriage may decline a customer’s cake order if it called for writing a message on the cake in opposition to same-sex marriage, while also ruling, to the contrary, that bakers who oppose such marriages may be forced to decorate their cakes with pro-same-sex-marriage messages.

In addition, the commission had already endorsed, Phillips argues, the refusal of three bakers to serve customers who wanted messages on their cakes saying that homosexuality is a sin. Those proposed messages could be refused by bakers because they were “offensive,” the commission ruled. Nevertheless, it turned aside Phillips’ claim that the expressed and implied message that is conveyed by the preparation of a cake for a same-sex wedding was offensive to his religious beliefs. Thus did the commission, Phillips argues, afford “broader protection to LGBT consumers than to people of faith.” Overall, the commission concluded that any messages with which Phillips decorated the cakes of LGBT customers would be attributed by a “reasonable observer” to the customers, not to Phillips.

It is noteworthy that the full armada of liberal litigating groups has filed briefs against Phillips even though, as mentioned, it was liberals in the Congress who led the successful effort to repudiate the Smith decision. Apparently, the use of peyote but not traditional marriage is a bona fide religious cause. Like Commissioner Rice in Colorado, brief-writers taking the commission’s side consistently portray religion and sincerely held religious beliefs as enemies of society. The National Women’s Law Center writes that “women’s secondary status often was rooted in genuinely held religious beliefs.” The ACLU says in its brief that “if religious motivation exempted business from anti-discrimination laws, government would be powerless to protect all Americans from invidious discrimination.” Americans United for Separation of Church and State argues that a ruling in favor of Phillips “would violate the Establishment Clause.”

To say the least, very large and momentous issues of free speech and free exercise of religion are being raised in Masterpiece. It is possible that the Supreme Court will decide the case based on free speech alone and thereby avoid the necessity of ruling on free exercise. The Trump Justice Department filed a friend-of-the-court brief supporting Phillips in which it argued just that.

But the “cake case” raises questions even beyond the specific issues of constitutional law, important as these constitutional issues are bound to be. Can courts order, as a legal remedy, the “comprehensive” adjustment of people’s (including family members’) minds and attitudes? Does current law and public policy have no way of recognizing that the business of a solitary tradesman poses no threat to state or national economies or to anyone’s rights?

Reader Discussion

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on November 29, 2017 at 08:52:08 am

Well done.

Who thought Heart of Atlanta Motel and Ollie’s BBQ (Katzenbach v. McClung) would lead to this?

A much simpler rule would be to honor the concept of “We reserve the right to refuse service to you.”

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Mark Pulliam
on November 29, 2017 at 09:51:37 am

"Can courts order, as a legal remedy, the “comprehensive” adjustment of people’s (including family members’) minds and attitudes?"

It would appear that Jan Myrdahl may be now writing "Report from a [Colorado] Village" honoring the Maoists on the Colorado Bench.

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gabe
on November 29, 2017 at 10:01:25 am

"It may be true that the law cannot make a man love me, but it can stop him from lynching me, and I think that's pretty important." Dr. Martin Luther King, Jr.

In other words, no one is trying to regulate minds and attitudes. They're regulating BEHAVIOR.

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nobody.really
on November 29, 2017 at 10:08:44 am

Who thought Heart of Atlanta Motel and Ollie’s BBQ (Katzenbach v. McClung) would lead to this?

A much simpler rule would be to honor the concept of “We reserve the right to refuse service to you.”

Really? Does anyone else on this site think that honoring the concept of "We reserve the right to refuse service to you" would have been an appropriate remedy for Heart of Atlanta Mote and Katzenbach v. McClung?

Though it may not be a simpler rule, I still favor the Market Power Affirmative Defense.

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nobody.really
on November 29, 2017 at 10:08:46 am

What separates marriage from every other form of loving relationship, is the ability and desire to exist in relationship as husband and wife. Marriage cannot in essence be and not be, exising in relationship as husband and wife, simultaneously. There is no sexual discrimination in marriage as marriage consists of one man and one woman, existing in relationship as husband and wife. Once you remove the necessary requirement for a marriage contract, which is the ability and desire to exist in relationship as husband and wife, and thus be married to each other, any relationship can be defined as marriage if one so desires.

If you give special marital benefits to some persons who do not have the ability and desire to exist in relationship as husband and wife, you must give those same benefits to all persons who do not have the ability and desire to exist in relationship as husband and wife.

The fact that The Supreme Court removed the necessary requirement for a marriage contract to be valid, which is the ability and desire to exist in relationship as husband and wife, does not change the fact that "Faith and right reason dictates how a married life should be lived; just as Faith and right reason in regards to the ‘‘nature’’ of the sexual act dictates how it should be performed within marriage."

We reserve the right to affirm the Sanctity of the marital act, which is Life-affirming and Life-sustaining and can only be consummated between a man and woman, united in marriage as husband and wife, thus we reserve the right to not serve in any capacity that forces us to deny the Sanctity of the marital act and thus deny the Sanctity of marriage.

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Nancy D.
on November 29, 2017 at 10:38:58 am

Hate to break it to you, Nancy, but ours is not a theocracy. ln a secular republic, marriage is a simple contract.

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Trevor Chase
on November 29, 2017 at 10:41:42 am

One of those Maoists is Allison Eid, whom Trump is installing on the CA-10 bench. No dissent from denial of cert, iirc.

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Trevor Chase
on November 29, 2017 at 10:48:18 am

And that was PRECISELY what the Maoists, so celebrated by Jan Myrdahl, were doing in Report From a Chinese Village - the trick is that they did it by *changing* minds.

Nope, I still go for your MPAD theory.

But seriously, do you really think that this is not about changing minds when everyday we see the LGBTA-ETC faction pushing GayChristmas Nativity scenes, teaching grade school children about transgenderism, gay sex, or a recent Teen Vogue issue outlining the "wonders" and techniques of anal sex?

C'mon, nobody - there is a substantial component of "re-education" going on here.
Can we at least leave the dang kids out of it?

And here is another example of the effects of this new education:

https://pjmedia.com/parenting/almost-40-kids-per-week-some-only-4-years-old-referred-to-transgender-clinics-in-the-uk/

wherein, in the UK we now have 40 children a week being referred to transgender specialists by their teachers, also *re-educated*, no doubt, and capable of identifying what a "pre-sexual" 4 year old child is really thinking about his or her gender. Gee, sounds like we may be having a repeat of the rather lurid "child-sex abuse" abomination at southern California day care centers in the late 1980's / early 1990's.

This is absurd; yet, it is clearly about changing minds not just behavior!

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gabe
on November 29, 2017 at 10:49:35 am

Who the heck said there is anything SIMPLE about it?

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gabe
on November 29, 2017 at 10:51:25 am

Fabulous disquisition; but are we possibly missing the underlying issue that gives rise to such litigation; yet, is not dealt with - and so remaining to metastasize (as it has demonstrably been doing) like the cancer of Rules of Policy which displace LAW?

That underlying issue is the **imposition of obligations** on some, by Rules of Policy, in order to create **desired** "rights" of others in relationships.

Of course, obligations, which include responsibilities, commitments and duties, inter alia, arise, are established, recognized, accepted and performed in the natural ordering of relationships in a social order. But, in an open society of individual liberty **obligations are NOT so imposed.**

The **imposition of obligations** (especially through Rules of policy) erodes and limits individual liberty of "freedom from and freedom to."

Whilst LAW describes, defines, but does not necessarily *delineate,* OBSERVED social order and the relationships within it, Rules of Policy (legislation, regulations, ordinances and their excrescences) are attempts to describe, define AND **delineate** some DESIRED social order and the relationships necessary for it.

Do we not have here another case of confusing Rules of Policy (legislation, etc.) with LAW, creating great difficulties as the systems and institutional frameworks that determine LAW are employed to give effect to Rules of Policy? Undoubtedly much of these difficulties is due to the problems associated with the determinations necessary to **delineate** a sufficiently commonly accepted DESIRED social order and the relationships necessary for it.

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R Richard Schweitzer
on November 29, 2017 at 11:54:35 am

As perhaps one of the few here who (back in those times and before) had stayed regularly at "The Heart of Atlanta" and ate regularly at Ollie's (20 years based in B'hm) - Yes, there should be the right for **individuals** to determine the relationships of exchanges of services.

Otherwise, who, or what factors, are to make those determinations? How will relationships be ordered - to what ends or ends, and who will determine those ends?

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R Richard Schweitzer
on November 29, 2017 at 12:03:56 pm

"Behavior" (a form of human conduct) is MOTIVATED.

The "efforts" referred to appear to coercively either **instill** or** displace** motivations.

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R Richard Schweitzer
on November 29, 2017 at 12:09:45 pm

I believe it was Vico who noted that the two customs hat appear to indicate at least the beginnings of civilization have been burial of the dead and marriage.

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R Richard Schweitzer
on November 29, 2017 at 12:13:26 pm

Absotively!

And the "behavior" of the Maoists amongst us is *purposive*; to achieve those purposes, minds AND behaviors must be altered to conform with the new purposes and ends of the envisioned utopia.
Wherever, a conflict between the putative ends of the utopia arise, it is not the least troubling for the Maoists to dispense with previously accepted responsibilities of the complaining party and to replace that with ever more onerous obligations upon the offending party.

All in due time, My good man, all in due time! The denial of responsibilties and their replacement with imposed obligations reflect a purposive motivation to make imminent the "Good Society" - All in due time!

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gabe
on November 29, 2017 at 12:15:31 pm

Checked her out! "Checkered" thinking, I would say; agree with some - not with others.

Hard to make the case that she is a Maoist - especially compared to your friend H. Lee Saraokin of "stinky" fame.

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gabe
on November 29, 2017 at 12:20:42 pm

BTW:

Has anyone noticed how selective our Black Robed friends have been when determining what is "offensive" given that a gay baker is alleged to have the right to not make a cake with an anti-gay marriage message as that would be deemed offensive?

What next? A Philadelphia Eagles fan with a bakery refusing to bake a New York Giants birthday cake and been hauled off to jail? - or worse, being compelled to sit at Giants Stadium and watch the game?

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gabe
on November 29, 2017 at 13:38:17 pm

1. Yes, courts tend to apply civil rights laws "selectively"--that is, to instances of discrimination based on suspect categories. Courts have found sex/gender to be a suspect category warranting heightened scrutiny. For better or wore, courts have not generally regarded affinity for a given football team as defining a suspect category--although the idea that anyone might still be following the Seahawks I find very suspect.

2. I'm not aware of anyone being hauled off to jail.

3. Nor am I aware of any of "our Black Robed friends ... determining what is 'offensive' given that a gay baker is alleged to have the right to not make a cake with an anti-gay marriage message as that would be deemed offensive."

I'm guessing that you're referring to decision of the Colorado Civil Rights Division to decline to bring an action against Azucar Bakery for declining to add anti-gay text to a Bible-shaped cake--where the baker instead provided cake decorating materials that would let the buyer add his own text. I'm not aware that any of our Black Robed friends were involved. To the contrary, the plaintiff declined to pursue the matter in court.

The Azucar case contrasts with the Masterpiece case, where Phillips refused to provide ANY wedding cake to the same-sex couple, with or without a specific text (even as Phillips acknowledged that he'd be willing to make a cake for the marriage of two dogs).

To make the Masterpiece cases analogous, we have to imagine that Phillips agreed to provide a wedding cake to the couple, but balked when asked to put figurines of two men on top. Instead, Phillips agreed to provide the cake plus an assortment of figurines, and let the buyers take the step of selecting the appropriate figurines and placing them on the cake. But these facts are pretty far from the actual facts of the Masterpiece case. Thus, it's not hard to distinguish between these cases.

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nobody.really
on November 29, 2017 at 14:03:37 pm

[N]o one is trying to regulate minds and attitudes. They’re regulating BEHAVIOR.

But seriously, do you really think that this is not about changing minds when everyday we see the LGBTA-ETC faction pushing GayChristmas Nativity scenes, teaching grade school children about transgenderism, gay sex, or a recent Teen Vogue issue outlining the “wonders” and techniques of anal sex?

Ok, fair enough. I shouldn’t say that no one is trying to regulate minds and attitudes; out of 7+ billion people, I can’t account for everyone’s objectives. I meant to say that the court is not asked to rule on people’s minds and attitudes; it’s being asked to rule on a person’s behavior.

I’ll acknowledge that Gay Christmas Nativity scenes are an attempt to promote homosexuality if you’ll agree that straight Christmas nativity scenes are an attempt to promote heterosexuality (and a particular version of is, emphasizing the “mild” nature of mothers, etc.).

Likewise, I’ll acknowledge that teaching grade school children about transgenderism is about promoting transgenderism if you’ll agree that teaching them about cis-genderism is about promoting cis-genderism.

As regards anal sex—be assured, the vast majority of people who have had anal sex are heterosexuals. The Center for Disease Control and Prevention (CDC) reported that, as of 2008, 44 percent of straight men and 36 percent of straight women between the ages of 15 and 44 reported having anal sex. This swamps the number of gay men in the population.

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nobody.really
on November 29, 2017 at 14:11:58 pm

A traditional libertarian standard--the standard that prevailed before 1964. And if we want to return to the levels of discriminatory conduct that prevailed in 1964, adopting this standard would be a good way to start.

Rightly or wrongly, Congress decided that it did not favor this level of discriminatory conduct, and therefore adopted laws promoting civil rights as provided for in the 14th Amendment.

Again I refer people to the Market Power Affirmative Defense: It expands the number of people and firms that could exercise their right to refuse service for any reason or no reason--but does not abandon civil rights standards entirely.

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nobody.really
on November 29, 2017 at 14:39:07 pm

nobody:

The statement about anal sex had nothing to do with the number or types of people practicing it. It had EVERYTHING to do with *proffering* this to children. I find this distasteful - leave the damn kiddies out of this.

As for your attempt to equate tranny sex / lifestyle with normal (that's right I used the dreaded word - normal), the teaching of certain *biological* functions in a biology class (what you call cis-gender sexuality) is a matter of teaching regular body function / procreation / reproduction as opposed to the indoctrination of young impressionable children in a lifestyle that is both questionable and fraught with many dangers, both emotional and medical.
To so instruct kindergartners is malicious, misguided, and indicative of an attempt to pursue a certain purpose - that is, the normalizing of non-normative behavior. Teachers who do so ought to be prosecuted for child abuse.

When children have at least reached the age of puberty, when their hormones are *instructing* them on what their sexual choices shall be, (you know those hormones that help determine gender specific attractions and behaviors, after all, we men are constantly reminded that we are such miscreants BECAUSE OF our hormones, so it is fair to say that hormones also play a role in sexuality) THEN and ONLY then should such alternative lifestyle choices be addressed.

"All we are saying is give [HORMONES] a chance" (insert musical emoji here) - Ha!

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gabe
on November 29, 2017 at 14:46:06 pm

as to #1) Why is not discrimination against a religious viewpoint not a "suspect" category?
We can all play that game.

But what you are revealing is the court's arrogation to itself to determine what liberties, what rights are "substantive" I would rather that we accept Randy Barnett's thesis that the 9th amendment mandates that all rights and liberties are of EQUAL value and ought to be equally protected. Of course, this means we will have *collisions* - that for millennia were resolved by the people themselves. MPAD would be a component of "collision" avoidance and repair.

As for the Seahawks - Yuck! But then again, look at the poor NY Giants - now that is a problem but i doubt that anyone nowadays will be looking to have a NY Giants birthday cake!

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gabe
on November 29, 2017 at 15:04:32 pm

But what you are revealing is the court’s arrogation to itself to determine what liberties, what rights are “substantive” I would rather that we accept Randy Barnett’s thesis that the 9th amendment mandates that all rights and liberties are of EQUAL value and ought to be equally protected.

Sure enough, courts could subject ALL legislation to heightened scrutiny, and demand that legislatures justify every policy as applied to every individual. So if the cops give me a ticket for speeding, I'd sue to demand that prosecutors demonstrate that the speed limit was the least burdensome was to promote public safety specifically as the policy applied TO ME. For example, I'd insist that they demonstrate that they had taken my own driving skills into account before they pulled me over to give me a ticket.

Oddly, courts and legislatures have concluded that this is not a workable way to run government--and, even if tried, this policy would have the effect of transferring basically all legislative power to the judiciary. Instead, per Employment Div. v. Smith, we generally defer to legislative judgments about rules of general applicability, and ask courts to give heightened scrutiny only in cases where invidious discrimination is especially likely to occur--for example, regarding laws that discriminate on the basis of race or sex.

Does that mean there's an unequal application of the law? Well, kinda. But if you think about it, you'll find that it's hard to come up with a better system.

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nobody.really
on November 29, 2017 at 15:42:59 pm

Actually, nobody, prior to Footnote Four, and Footnote Four Plus, the Courts did precisely that, albeit somewhat imperfectly. As for the traffic citation, the courts need only do it once - ya know, there is this stare decisis thingy.

Your acceptance of a "separation" of liberties into "categorical" (suspect categories") and non-essential liberties would (and does, AND will) permit the court to determine which liberties are to be protected based upon a) their peculiar preferences, b) the prevailing "received wisdom, and c) political factions AND NOT in accordance with the text of COTUS. As an example, if tranny rights are afforded "categorical" or fundamental status what then becomes of 1st Amendment protections? One must yield. Odd that the one that is SPECIFIED in COTUS is the one that must yield.
AND it is your conception, or your acceptance of Footnote Four's fallacy that allows the Black Robes to arrogate to themselves, and not the Legislature via deference, the power to protect or sustain rights and liberties and *selectively* un-enforce others, i.e., property rights, associational rights, religious / conscience rights, gun rights, etc.
BTW: I notice: "... regarding laws that discriminate on the basis of race or sex." - that even you do not presume to claim that gender, at least the modern concept with its immense plasticity is to be "scrutinized."

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gabe
on November 29, 2017 at 18:31:18 pm

Oh, and let me concur w/ Mark Pulliam: Ascik's essay is nicely done.

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nobody.really
on November 29, 2017 at 18:53:49 pm

Our Constitution does not serve to secure and protect the equality of sexual acts and sexual relationships because it is a self-evident truth, that can be known through both Faith and reason, that not every sexual act or sexual relationship, is respectful of the inherent Dignity of the human person. The desire to engage in a demeaning act of any nature, does not change the nature of the act. The fact that an act is permissible does not change the fact that no one can be forced to refrain from discriminating between appropriate and inappropriate sexual behavior, including between a man and woman, united in marriage as husband and wife. It is an act of Love to desire that our beloved be treated with Dignity and respect in private as well as in public.

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Nancy D.
on November 30, 2017 at 07:50:26 am

You used the term. My point is that there was no appetite for hearing it at the State level, on either the L or R.

Scalia put this one to bed 30 years ago, in Employment Div. v. Smith. The 1Am right to free exercise cannot be absolute, as it could potentially create a religious veto over every law we have.

This just isn't a constitutional case. This is about whether the RFRA trumps facially valid legislation under the state's commerce clause. That would depend on the text of the RFRA, and have no opinion.

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Trevor Chase
on November 30, 2017 at 10:01:49 am

Presumably you refer to the "libertarian standard" as a "norm" or broadly, socially determined set of values of individual freedoms, reflected in freedoms of *individual*choice (which includes selectivities- and thus, to discriminate) and in freedoms from constraints on that 8individual* choice.

Once the ways were opened for (authority centric) Rules of Policy (not individual determinations) to select or constrain a "level of discrimination," the erosion of individual liberty in the exercise discrimination, which constantly "tests" and develops the value systems of a social order is thrown into disorder in one of the many attempts to achieve by design - New Order.

That is what we continue to deal with.

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R Richard Schweitzer
on November 30, 2017 at 10:07:34 am

Everybody knew HofA would come to this. Neither Art. I, §8, cl. 3 (the commerce clause) nor §1 of the 14th Amendment give the federal government jurisdiction over the activities of individuals living and doing business in a state. Both limit the states, not the individual living in the states. The correct remedy would have been to require that the states not to issue licenses to vendors engaged in activities that violate equal protection and due process. Of course that would have meant limiting or overturning the ruling in Wickard v. Filburn and that the elitist Whig jurists on the Supreme Court will never do.

The result would have been the same in HofA, and probably in Masterpiece, but the fight should be between the federal government and the state governments not the federal government and isolated individuals.

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EK
on November 30, 2017 at 11:13:32 am

Gabe,

I think that, if one digs down far enough, the whole point of the Masterpiece Cakeshop is not religion or speech, but rather the government's role in in promoting preferred narratives, especially those concerned with feelings. Very briefly, consider the following questions:

1. Is a presence of a cake a prerequisite to a valid wedding? Does refusal to provide cake prevent anyone from, as Trevor points out, entering a marriage contract?

2. Assume the following scenario. A gay fellow, or more specifically homosexual, goes into a bakery and request two cakes, one for his nephew's birthday and another for his wedding. The baker agrees to sell him the birthday cake but declines the wedding confection. Is the customer being discriminated against because he is gay?

3. Now assume that a heterosexual person, married with kids and everything, goes to the baker and asks to buy a wedding cake for his gay sister's wedding .If the baker declines,is someone being discriminated against because he/she is gay?

4. Given the concept of gender fluidity, is it proper to assume that only gay people marry someone with the same sexual phenotype?

All of which is to suggest that it is not a specific homosexual couple that is being protected, but rather it is the wedding ceremony as a symbol of a particular social narrative that is the subject of controversy. The question then becomes, is this an appropriate subject for the use of government coercion?

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z9z99
on November 30, 2017 at 12:47:40 pm

1. Is a presence of a cake a prerequisite to a valid wedding? Does refusal to provide cake prevent anyone from, as Trevor points out, entering a marriage contract?
* * *
All of which is to suggest that it is not a specific homosexual couple that is being protected, but rather it is the wedding ceremony as a symbol of a particular social narrative that is the subject of controversy.

I humbly suggest that you’re barking up the wrong tree here.

True enough, a cake is not required or a wedding or a marriage contract. That said: Employment, and housing, public accommodations are not required for a wedding or a marriage contract. Yet if you withhold these from someone on the basis of suspect categories, you’ll be liable for violating the federal Civil Rights Act. And if you refrain from providing a variety of retain products and services on the basis of suspect categories, you’ll be liable for violating various state civil rights acts.

In sum: No, the gay folks are not the ones arguing that this is a matter of religion; they’re arguing that it’s a matter of civil rights. The offense would be the same whether people were withholding a wedding cake or employment or housing or public accommodations or whathaveyou.

It's the BAKER who argues that this is a matter of religion; he want to argue that the right to exercise his religion gives him the right to refuse to serve people, even when that entails discriminating on the basis of suspect categories.

2. A gay fellow … goes into a bakery and request two cakes, one for his nephew’s birthday and another for his wedding. The baker agrees to sell him the birthday cake but declines the wedding confection. Is the customer being discriminated against because he is gay?

Would the baker have sold the buyer a wedding cake if the buyer were straight? If so, then the baker would appear to be discriminating on the basis of suspect categories.

The fact that the baker does not refuse to business with gay people under ALL circumstances does not change the fact that he refused to do so under SOME circumstances. If an employer declares that he refuses to hire physicians, the employer won’t be able to avoid liability simply by showing that he had a long history of hiring black janitors.

3. Now assume that a heterosexual person, married with kids and everything, goes to the baker and asks to buy a wedding cake for his gay sister’s wedding .If the baker declines, is someone being discriminated against because he/she is gay?

Not sure. But if the baker is discriminating on the basis of a suspect category, and that’s the relevant test. (Would the heterosexual buyer have standing to sue? I’d expect so, but it likely depends on the jurisdiction.)

4. Given the concept of gender fluidity, is it proper to assume that only gay people marry someone with the same sexual phenotype?

Nope. And this illustrates the point that I suspect many people make a lot of assumptions in these cases. So let’s be explicit about a few:

1. The Bible never bars same-sex religious marriage.

2. The Bible arguably bars same-sex sex, but marriage is not necessary for sex.

3. Moreover, sex is not necessary for marriage—and certainly not for CIVIL marriage. As far as I know, marriage laws permit pretty much any two single competent adults to get hitched. They can be brother and sister. Or sister and sister.

4. Precisely because a cake is not required for a marriage license or a wedding—and, moreover, that neither a marriage license nor a wedding are required to have sex—how does selling a cake violate any religious tenants?

5. The Bible arguably bars divorce. Second marriages are vastly more common that gay marriages, especially in the Bible Belt (where people are prone to marry earlier, and thus divorce earlier). Yet somehow we don’t find cases where Masterpiece is refusing to provide cakes to those weddings.

6. Cakes are not the only things provided for same-sex marriages. Utility services, fire department services, police protection, insurance, cosmetic surgery, mail delivery, snow removal from streets adjoining a given location, etc., are also provided. Should every vendor have the discretion to withhold services from any event he disapproves of?

7. Does the right to discriminate against same-sex weddings on the basis of religion also entail the right to discriminate against all religious minorities? Will future generations refer to the Masterpiece Cakeshop case as the Open Season on Jews case?

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nobody.really
on November 30, 2017 at 14:13:41 pm

Employment, and housing, public accommodations are not required for a wedding or a marriage contract. Yet if you withhold these from someone on the basis of suspect categories, you’ll be liable for violating the federal Civil Rights Act.

Total nonsequitur. You have not established that refusing to provide a wedding cake for a gay wedding, or any other type of wedding is discrimination based on a suspect category. "You can have a cake if you're gay but not for a gay wedding" does not establish discrimination on the basis of being gay.

It’s the BAKER who argues that this is a matter of religion

Not my problem. I am not representing the baker or defending his arguments. I was quite explicit that I do not think the issue is one of religious freedom.

The fact that the baker does not refuse to business with gay people under ALL circumstances does not change the fact that he refused to do so under SOME circumstances.

Yes, but one of those circumstances is NOT that the customer is gay. He sold him a birthday cake. Your argument collapses.

But if the baker is discriminating on the basis of a suspect category

Weddings are not a suspect category.

Not sure.

Exactly. Or stated another way, refusal to make a cake for a gay wedding does not establish discrimination based on a suspect category.

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z9z99
on November 30, 2017 at 15:07:15 pm

"Cakes are not the only things provided for same-sex marriages. Utility services, fire department services, police protection, insurance, cosmetic surgery, mail delivery, snow removal from streets adjoining a given location, etc., are also provided. Should every vendor have the discretion to withhold services from any event he disapproves of? "

Only those that are not part of a government operation.
What are you asserting that a cosmetic surgeon MUST perform surgery involving transgender protocols?
That a food vendor must provide Halal meals? or Kosher meals? to any and all who ask?
What is wromg with: "Hey i don't do kosher / halal! or I don;t do such surgery?

As for your attempt to minimize the objections of the religiously inclined to SSM by arguing that the bible does not ban SSM, the whole line of criticism is spurious. I am no Bible scholar but even I am aware of the biblical injunction against homosexuality; are you serious in asserting that because the Bible does not specifically enjoin SSM that it, and consequently its adherents, would therefore not object to SSM. Quite simply, it was inconceivable to those people to consider SSM. And does anyone.really believe that sex relations were not viewed by the writers of the Bible as an integral part of marriage. This would be a remarkable historical discovery overturning years of Biblical and religious teaching that views the procreative act as the sine qua non of marriage - in short its' purpose.
And yep, some marriages are *fruitless* as we used to say; that sad fact however does not undermine the proposition that marriage is about children and family.

As for divorce, you say "arguably" the Bible bars it. I don;t know BUT I do know, as should anyone at all familiar with English history know that a major Christian sect had its VERY origins in DIVORCE of a monarch. Thus, it may not be asserted that there OUGHT to be an equivalency between refusing a "divorce" cake and a SSM cake.

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gabe
on November 30, 2017 at 15:57:32 pm

Z: (nobody, also)

But it is even worse than this.

Recent news story out of Ontario, Canada wherein teachers are being required to provide tolerance training covering (now get this) LGGBDTTTIQQAAPP .

Amember of Canada's Liberal Paty ostensibly supporting this new tolerance training admitted that he did not know what it meant, what the categories were, only that he knew that it also covered some people who simply did not know what they were.
QUESTION: How can i be accused of discrimination against someone who does not even know if he / she is a member of the "alleged" suspect category.
QUESTION: How can I be discriminating when even I don;t know what I am discriminating against, or if i am doing so?
QUESTION: Are we simply opening up a grab bag of possible rights violations lawsuits predicated upon artificially created suspect categories?

QUESTION: Have all you people lost your bloody minds?

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gabe
on November 30, 2017 at 17:58:07 pm

[A]re you asserting that a cosmetic surgeon MUST perform surgery involving transgender protocols?

That a food vendor must provide Halal meals? or Kosher meals? to any and all who ask?

What is wrong with: “Hey i don’t do kosher / halal! or I don;t do such surgery?

Nope, I’m not suggesting that surgeons must perform any specific type of surgery on transgender people, or that food vendors must provide any specific kind of meals. But I am suggesting that if a surgeon DOES do gender reassignment surgeries, she probably would not want to offer her services only to white people and not to black people. And if a food vendor DOES provide kosher meals, he probably would not want to offer those meals only to men and not also to women. And if a baker sells wedding cakes, he probably would not want to offer them only to men who are planning to marry women, but not also to men who are planning to marry men.

Anti-discrimination laws do not generally compel anyone into a given line of work. But those laws may punish people who voluntarily enter a line of work, and then engage in undue discrimination regarding their line of work.

<blockquoteAs for your attempt to minimize the objections of the religiously inclined to SSM by arguing that the bible does not ban SSM, the whole line of criticism is spurious. I am no Bible scholar but even I am aware of the biblical injunction against homosexuality; are you serious in asserting that because the Bible does not specifically enjoin SSM that it, and consequently its adherents, would therefore not object to SSM?

Yes.

More specifically, I noted that people were making a number of assumptions—in particular, the assumption that same-sex marriage has something to do with sex. So who thinks that, in the absence of same-sex marriage, gay people won’t have sex? Could I see a show of hands?

Now could I see a show of hands of those who think that in the absence of a WEDDING CAKE, gay people won’t have sex?

I didn’t think so.

As far as I can tell, people not only CAN have sex outside of marriage, they DO. So, yes, as I acknowledge, the Bible arguably condemns gay sex. So if a baker truly wanted to honor the Biblical injunction, arguably he would fight for the opportunity to provide cakes for same-sex weddings—and then slip some kind of anti-erection drug into the cake.

But, in the absence of that strategy, bakers are impotent (heh) to stop gay sex. Withholding a wedding cake achieves NO Biblical commandment. It’s just a temper tantrum. They lack the power to conform the world to their will, so they throw a hissy fit.

Thus, I stand by my statement that the Bible does not condemn same-sex marriage (let alone CIVIL same-sex marriage); it only condemns same-sex sex—and withholding cakes is an ineffective strategy for stopping sex.

That said, I reject your claim that I minimize the objections of the religiously inclined. The religiously inclined are perfectly entitled to invest the selling of wedding cakes with supernatural significance. But that doesn’t mean that they’re entitled to evade laws of general applicability, such as civil rights laws.

Consider the case of Father Daniel Berrigan. He had a sincere religious belief that nuclear weapons are sinful. The sincerity of his beliefs was demonstrated by the amount of time he spend in jail. He’d break into nuclear facilities, pound on rocket cones with hammers, and pour blood on files. Then, after getting arrested, he would claim that his behavior was justified by exigent circumstances. He compared himself to a man who, seeing a wildfire is sweeping down toward a town from the west, saves the town by dynamiting the easternmost house, thereby depriving the fire of fuel. It’s a poetic argument. But it only makes sense if you believe that Berrigan’s conduct had any practical ability to stop nuclear armaments.

Otherwise, his conduct was analogous to a man who sees a fire sweeping down toward a town from the west, and he goes and dynamites the EASTERNMOST house. Even if you accept the idea that we face exigent circumstances, the strategy he employed was completely irrelevant to remedying the problem. In his mind, he was a hero; in the eyes of the law, he was just a vandal. His sincere religious motivation was undisputed—and irrelevant.

So it is with the baker. Yes, arguably there’s an epidemic of gay sex going on, in violation of Biblical injunctions. If withholding cakes was a means to solve that problem, the baker would have an argument. But withholding cakes is no more likely to stop gay sex than blowing up a house on the east is likely to stop a fire coming in from the west. And the sincerity of people’s faiths does not change this fact.

[M]arriage is about children and family.

I don’t know what legal significance to attach to this phrase. Clearly people get married with no expectation of having children—and sometimes with little expectation of having a family other than the spouse. People get married when they’re in their 90s. Or terminally ill and bed-ridden. Or on their way to be executed. At least five states have explicit provisions letting first cousins marry provided that they prove that they are INCAPABLE of producing kids.

Moreover, civil marriage alters a person’s tax status. It alters a person’s property rights. It alters a person’s legal privileges in court. It alters a person’s access to certain government programs. The case of US v. Windsor pertained to the operation of the estate tax as applied to the surviving spouse of an elderly lesbian. There was no family left. They were far beyond the age of having kids. Yet the entire case turned on whether the feds would recognize the former couple’s marriage.

Thus, the statement that marriage is “about children and family” is both unduly broad and unduly narrow.

....“divorce” cake....

Cute. But in case you're not joking, let me clarify that the issue isn't "divorce cakes." It's the idea that a deeply Christian baker would provide a cake for a person's second wedding, when Jesus explicitly said, "Those whom God hath joined together, let no one tear asunder." In contrast, Jesus never said boo about a gay wedding. Yes, it's possible to cobble together an argument. But when people are ignoring Jesus's plain words, it's hard to give credence to elaborate, obscure Biblical arguments.

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nobody.really
on November 30, 2017 at 18:09:08 pm

[T]eachers are being required to provide tolerance training covering (now get this) LGGBDTTTIQQAAPP .

Look, teacher need to learn to tolerate students who slip whoopee cushions onto their chairs, resulting in a sound like that. Seems reasonable to me.

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nobody.really
on November 30, 2017 at 19:59:46 pm

Actually it does sound like that - is this onomatopoeia or what?
Gawd, haven't used that word since 10th grade!

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gabe
on December 03, 2017 at 12:35:51 pm

Nobody:

It seems as if Richard Epstein also recommends your MPAD (or something akin to it) solution; see link below:

https://www.hoover.org/research/let-them-bake-cake

Hey, da ya wanna become a baker?

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gabe
on December 07, 2017 at 09:13:03 am

If it were me, I'd agree to accept the business with this advisory to the customer: "I'm happy to have your business but I must advise that the situation makes me terribly uncomfortable - sorry, can't help it, just does - and I always do really lousy work when I'm nervous. But hey, if you want to give it a go, leave a nonrefundable deposit and we'll get started."

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Hopley
on December 07, 2017 at 12:00:45 pm

To deny the Sanctity of the marital act is to discriminate against a rightly ordered sexual inclination.

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Nancy D.
on December 07, 2017 at 12:13:23 pm

To compel someone to condone same-sex sexual acts, is to compel someone to discriminate against the Sanctity of the marital act which is a rightly ordered desire/inclination/orientation within the marital relationship.

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N.D.

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