The U.S. Supreme Court declined to hear the case of Elaine Huguenin, co-owner of Elane Photography in Albuquerque, N.M., who had religious objections to taking photos for a same-sex wedding ceremony. Photo courtesy of Alliance Defending Freedom

Justices may decide if photographers can snub gay weddings

WASHINGTON (RNS)  When Vanessa Willock wanted an Albuquerque photographer to shoot her same-sex commitment ceremony in 2006, she contacted Elane Photography. The response came as a shock: Co-owner Elaine Huguenin said she only worked on "traditional weddings."

Elaine Huguenin, co-owner of Elane Photography in Albuquerque, N.M., is asking the U.S. Supreme Court to hear her compelled speech case. Photo courtesy of Alliance Defending Freedom

Elaine Huguenin, co-owner of Elane Photography in Albuquerque, N.M., is asking the U.S. Supreme Court to hear her compelled speech case. Photo courtesy of Alliance Defending Freedom

 This image is available for web and print publication. For questions, contact Sally Morrow.

"Are you saying that your company does not offer your photography services to same-sex couples?" Willock asked by e-mail.

"Yes, you are correct in saying we do not photograph same-sex weddings," Huguenin responded.

Now 7 1/2 years after that e-mail exchange, the Supreme Court is considering whether to referee the dispute.

The photography case is viewed through the lens of same-sex marriage, but it also pits two constitutional rights against each other: freedom of speech and equal protection.

Willock and her partner, Misti Collinsworth, had no trouble finding another photographer for their September 2007 ceremony. Still, Willock filed a complaint against Elane Photography with the New Mexico Human Rights Commission, charging that the snub violated the state's anti-discrimination law. Twenty other states have similar laws.

The commission and state courts agreed, ruling that the photo studio cannot discriminate on the basis of sexual orientation.

"They may ... post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage," the state Supreme Court wrote, "but that they comply with applicable anti-discrimination laws."

In asking the nation's highest court to hear the case, Huguenin and her husband, Jonathan, dropped their religious freedom claim and are focusing solely on free speech --  in this case, the freedom not to photograph same-sex ceremonies.

That sets the case apart from legislative efforts in some states to carve religious exemptions to anti-discrimination statutes. The Huguenins' lawyers and supporters don't contend that businesses such as restaurants and hotels can refuse to serve gays and lesbians. A measure that could have had that effect was vetoed in Arizona last month by Gov. Jan Brewer.

Their argument is that professionals whose work is by nature expressive -- such as writers, advertisers and website designers -- should not have to apply their artistic talents to subjects on which they disagree.

"Of particular relevance here is the Huguenins' sincere religious belief that marriage is the union of a man and a woman," their petition says. "They believe that if they were to communicate a contrary message about marriage -- by, for example, telling the story of a polygamous wedding ceremony -- they would be disobeying God."

Similar objections to gay marriage have been raised by bakeries in Colorado and Oregon, a florist in Washington state and an event location in New Jersey. Still, Jordan Lorence of Alliance Defending Freedom, which is representing the Huguenins, said, "These are not going to be unleashing the floodgates of discrimination."

Willock's attorney, University of Pennsylvania law professor Tobias Barrington Wolff, argues that even businesses with "an expressive dimension" must abide by regulations on commercial conduct.

"All are protected from laws that target the expressive content of their goods and services, but none has a constitutional right to play by a different set of rules in the public marketplace," he argues in his reply brief to the court.

The Supreme Court could refuse to hear the Huguenins' case because there is no disagreement on the issue among federal appeals or state supreme courts.

Supporters of the photo studio cite past U.S. Supreme Court decisions -- one that allowed St. Patrick's Day parade organizers in Boston to exclude a gay rights group, and another that blocked New Hampshire from requiring residents to display its "Live Free or Die" motto on their license plates.

James Gottry, a lawyer for 18 wedding photographers supporting the Huguenins, says they object to compelled speech -- what he calls "the right to insist that all businesses provide all services to all people, regardless of whether those services are expressive."

Eight states that support the photo studio are urging the court to take the case and give guidance to state legislators across the country "who are considering proposals to enact conscience-based exceptions to public-accommodations and same-sex marriage laws."

"New Mexico really is out on a limb by itself with respect to how it has applied its anti-discrimination law in this particular case," says Andrew Brasher, Alabama's solicitor general. "It would help everyone if we knew what the baseline rules are."

(Richard Wolf writes for USA Today.)



  1. How far does America want to go to de-fang anti-discrimination laws? Everyone wants to refuse services to gays. What about when religious preferences clash? What about white-only restaurants again? Separate drinking fountains? What about wheelchair accessibility?

    I hear about people whose religions forbid them from serving gays. Why don’t those same religions forbid them from serving people of other faiths?

  2. One has to bear in mind that to Conservative Christians, freedoms are only to be applied to themselves to excuse actions against everyone else. They have said it over and over again. “America is a Christian (Fundamentalist) nation. Followed by the unstated but obvious, “Everyone else can go —- themselves.”

    They don’t care about anti-discrimination laws because such laws hamper the ability to force people to abide by the dictates of their religion.

  3. I don’t know how all of this should be resolved. Greater minds than mine will have to decide that.
    I do hope however that we as a society will somehow thresh out a way to respect both the fundamental rights of those in the LGBTQ community and those who have issues of conscience with their lifestyle. And yes, I do believe that conscience needs to be considered in this matter. Conscience is a powerful part of who we are as a people. We had better proceed with great care when we choose to get into people’s lives in such a way that we, by edict, try to force them to violate their consciences.
    May God give us copious amounts of grace and truth.

  4. It all boils down to whether one feels they have a right to discriminate in their business. What you may call an act of conscience can really be called an act of malice. Using religious belief as an excuse to treat someone else with contempt and hate in a public setting. Discriminatory conduct is inherently harmful to those on the receiving end of it. I can’t believe it only took 2 generations for people to forget this obvious truth.

    Deliberately choosing to close off one’s public commercial activities based on personal animosity is something which is inherently harmful to commerce in general and should not have social or legal sanction. The arguments employed in favor of discrimination really don’t change much from when racial, sectarian, or ethnic prejudices were given color of law. All prejudices give the impression of deeply held beliefs.

  5. Is the exercise of one’s conscience in this case always tantamount to “malice” and “personal animosity” resulting in “contempt and hate” toward gays and lesbians? I think not and certainly you do not believe that either.

    And even if it is true in some cases, which no doubt it is, I still stand by my point. My conscience, your conscience, and the deep convictions they enshrine, whether they be of a religious orientation or not, must be protected and respected to some degree. Granted, the lines are not always easy to decipher, but try we must in a free and increasingly diverse society.

  6. No, everyone does not want to refuse services to gays. What they object to is being obligated to participate in what they find to be a morally objectionable EVENT.

    Gays do not generally want to purchase the services of “homophobes” and thereby put money in their pockets–they boycott those who DO wish to serve them with great fanfare (i.e. ChickFilA). What they evidently DO want to do is force a morally unacceptable choice upon business owners and punish those from whom they can not coerce approval.

  7. No I don’t agree with you at all. Yes it is hatred and malice. I won’t sugarcoat this because you want to give the impression of two sides of equal merit. It is deliberately refusing to sell goods and services normally open to the free market on the basis of personal animosities against the potential customer. That is harmful, malicious and in no way an act of conscience.

    An act of conscience is not trying to purposefully cause harm to others. Discrimination in business is harm. It is recognized to such a degree it is actionable as a civil tort.

    Your conscience is not an excuse to violate laws concerning doing business to the general public and engage in harmful behavior. You think strong belief allows you to be a law unto yourself? No. Is rule of law is something to be ignored by a Christian if it is inconvenient to their personal peeves? That is what you are arguing.

    I don’t have to respect your views if they are used to harm the interests of others in a malicious and prejudiced matter. I don’t have to respect the actions to ostracize and marginalize people as a manner of doing business. It is harmful to open commerce and well within the government’s right to prevent.

    Plenty of racists have strong consciences and deeply held beliefs (even a religious basis!) that keep them from wanting to interact with other people, so what. But there is no compelling reason to give it color of law. You can keep them to yourself. Dressing up prejudice with religious trappings doesn’t make it legalized or acceptable in business.

    The lines are easy here. We have this law called the Civil Rights Act. It states that discrimination in business is a bad thing.
    If you do business to the general public, you are obligated to serve the general public in a non-discriminatory manner.

    If you want to get around it, there already is a proscribed method. Don’t do business to the general public. Keep it word of mouth, members only or exclusive to a particular setting. A private club can discriminate at will and engage in business to its select members. You hold yourself as being open to the public, you have to serve the public.

  8. What is the point of anti-discrimination laws.

  9. In a nutshell, a lot of constitutionally-dubious law was put into place in order to rid our nation of the deep-seated and recalcitrant scourge of racism. And perhaps it WAS the only way to accomplish that. But it remains a substantial limitation on the individual freedoms that our founders held so dear, and I would hesitate to expand it beyond the particular policy considerations which it was intended to address–especially since there is not much to indicate that it is vitally necessary. LGBT Americans tend to be more affluent than average and don’t appear to be doing without anything significant in the way of goods and services due to any “discrimination.”

  10. WOW, there really is a major confluence between racism and conservative Christianity! You have more or less proved it. Its amazing what kind of scorched earth tactics bigots will use to justify their behavior. They don’t care what kind of damage they do as long as they can discriminate.

    The Civil Rights Act is constitutionally dubious law? I think you missed that boat about 50 years ago. It has been challenged over and over again since being enacted and has come out as Constitutionally valid law. Obviously from your arguments, the problems to be solved by the Civil Rights Act are still there to be solved. As long as people feel the need to deny open commerce based on bigotry, it serves a public need. What you are saying has proven how much we still need it in this country. There will always be some people who want to give bigotry the color of law. Whereas in the past it was racism now its homophobia and sectarianism.

    If you want to see how it applies to businesses read the decision Katezmbach v. McClung (1964)

    ” LGBT Americans tend to be…”

    This just means you are arguing from a point of view of stereotype, ignorance and prejudice. Somehow your animus against gays is different from racism so it must be accepted. Give me a break.

    Your argument circa 1962: “Its OK if I denied business to those black people, they could just go to “their side of town” instead.”

  11. Good to see that the courageous Hugenin family haven’t given up yet. Most Christians would have capitulated to the gay bullies by now, and many would not have even tried to stand up for their beliefs at all. (These are hard times for American Christianity. No backbone.)

    Hopefully the Supreme Court will help them out, but this is a gay-marriage Supreme Court (along with a gay-marriage President), so there’s NO guarantee at all that the Supreme Court will do anything to defend the Hugenins from the gay bullying and harassment.

    In fact the Supremes may AFFIRM all the bullying and harassment, and if that happens, every Christian (and other people of faith or even no faith) business in America will be vulnerable to the evil.

    But, these days, the very willingness to actually stand up for one’s constitutional freedoms of speech, and religious liberty, is a victory all by itself. Therefore, win or lose, the Hugenins have already won a huge victory.

  12. In other words, Larry DOES support discrimination and hatred — as long as it’s directed against Christian (and other religious or non-religious) business owners!

  13. Yeah, i forget how gay guys are living high off the collective hog because my own family boasts five jobs between two breadwinners.

    It seems more likely that anti-discrimination laws were expanded to include gay people because of ongoing incidents of discrimination against us and our families and people are still trying to figure out how to keep discriminating against us legally.

  14. Why exactly is it discrimination against Christians to enter into commercial transactions with gay people?

  15. The question is: who is being forced and coerced by an increasingly all-powerful government–the real fear of our country’s founding fathers.
    To photograph a wedding one has to attend the wedding–and most weddings are religious ceremonies or types of religious ceremonies. So is the Supreme Court going to order photographers and others to attend these.—Talk about a rape and butchering of any concept of freedom from government tyranny. Today certain business people are the victims. Tomorrow, who knows which way” the worm will turn.”
    It isn’t the photographers or florists or bakers who are demanding that the power of the state be used in their behalf to coerce others. It is Gays manipulating laws never intended to have anything to do with one’s choice of sexual practices.

  16. @Larry: I’ve already forgotten more constitutional law than you will ever know, Larry. And if you can not understand my relatively brief post then it comes as no surprise that you are unaware that most of what we now know as civil rights law was put into place, in spite of a number of valid constitutional difficulties, for the very specific public policy purpose of combatting a racism that likely could not be addressed in any less draconian fashion. Which of course does not mean that it must, or should, be extended in scope to cover every single group that has a beef with another group. BTW, do you deny that the average income of LGBT households is $10,000 more than the average American household?

    @Jon: If your family is working five jobs I seriously doubt that it is because of any kind of institutionalized discrimination and lack of opportunities comparable to that of American blacks.

  17. The real issue here is setting a precedent in the law. That the court especially the Supreme Court would take interest in this “case” is unsettling. Any ruling will embolden parties that are adverse to people, life styles, mores they do not like will seek remedy’s from the court. Notice they dropped religious freedom from their complaint. The reason I believe is that they would not be heard. However, the court might hear a case made on choice, a narrow plank that argues as they have a right to keep their creativity and use it only for those they agree with; this is wrong. If you can with hold creativity, why not service, in fact their are legislators that champion this attitude. Let’s remember the poem that said they came for persons and I said nothing because I was not one of them; they came for me and no one was left to stop them.

  18. You are incorrect about this. To do anything but affirm safe guards all of us. This foolishness that embracing the other is America on the decline is not helpful. To ascribe Bullying to persons whose only mission is to be accepted much like blacks, Latinos and other immigrants misses the point of this nation: we are the city on the hill, the beacon to others after all give me your tired hungry and persons longing to be free adorns the Statue of Liberty, or, is that just window dressing??

  19. @Shawnie5: LGBTs have our own traumas and examples of discrimination. I find it humorous that you cite our financial largess and reasons for why we cannot be protected by anti-discrimination laws, but then you dismiss incidents where gay people don’t actually have financial largess…

    That said, I take it that you have a problem with anti-discrimination laws that affect any other group (including other races, as well as religion, gender, disability, and other protected classes)?

  20. And let’s be fair, I’m a parent here. I don’t pay for myself. I pay for myself, my husband, and our two boys. As do most of the other married gay people that I know. Do you think that there might be a dip in the monetary differences that might have existed between some straights and some gays in the past when we as a group were denied the responsibilities of marriage and child-rearing?

  21. To you tyranny is being told you can’t deliberately and maliciously harm others. You mangle any concept of rule of law. What you call an act of conscience is just whining. A person who wants to engage in discrimination in business but is rebuffed by the law is not being persecuted.

    The laws were intended to keep the flow of commerce from being interrupted and restricted by uncivil bigoted behavior. That is exactly how it was applied against these business owners. People who kept their business open to the public but refused to serve the public. Just because the form of bigotry changes over time, it doesn’t make the act of discrimination any less deplorable.

    You seek to upend rule of law because you can’t get your way and treat others badly. I have no sympathy for your position. It flies in the face of what a free and open society is about.

  22. @Shawnie. Its obvious you have forgotten EVERYTHING about constitutional law. You also have a disdain for rule of law in general. To you, if a Christian can’t get their way, they throw a temper tantrum like a toddler and call it “an act of conscience:.

    You think that changing the form that bigotry takes or who is being discriminated against is a material difference? Think again. As for your economic argument, think of it this way. The average American Jewish family earns more than most. Yet antisemitism still exists and discriminating against them in business is still illegal and should remain so.

    “They can just go somewhere else” is always used to justify discrimination. It was stupid 50 years ago. It remains so.

  23. I support rule of law Doc Anthony. You like to think Christians are above the law. I support religious freedom the way it is intended. Religious freedom does not mean giving Christians an alleged privileges and rights to force everyone to believe as they do.

  24. More likely than not, the Supreme Court is going to punt, and refuse to hear the case. There is no issue of law in federal courts and they can easily say the issue turns on purely state law matters (as they did in declining to hear the appeal of the Prop. 8 case)

  25. “You think that changing the form that bigotry takes or who is being discriminated against is a material difference?”

    Certainly. A group isn’t “protected” until the law recognizes it as such, and courts routinely apply different standards of review for different groups.

    Really, Larry, you amuse me with your pontificating about “rule of law” and your childlike confidence that anything the current Supreme Court approves is sacrosanct and beyond question–when that panel is made up of limited human beings just like everyone else who have reversed themselves numerous times and make decisions not based merely on constitutional principles but on constantly shifting public policy considerations as well. The Brown vs. Board decision, for example, did not turn on pure constitutional principles but on sociological and psychological evidence of harm caused by segregation, and the lack of any way to remedy it other than to simply take it out of the states’ hands altogether. The Court realized how far they were overstepping their boundaries to combat racism, and they would have chosen a less draconian and more constitutionally solid route had there been one. But of course, once you cross one boundary it’s easier to cross another and then another, which is why we should beware of wandering too far from the original purpose of the civil rights laws. No, I don’t believe for a second that LGBTs are in a comparable boat by virtue of making an extra phone call to get a wedding photographer.

    But, to momentarily digress from the subject matter, you ARE doing a great job of demonstrating how easily man and his “rule of law” becomes god in the eyes of fallen humans once the real God is out of the picture. David Satter, the former Moscow correspondent, observed a similar phenomenon in Russia and wrote some interesting commentary on it.

  26. There are a lot of things a sincerely religious person might object to when it comes to marriage. A mixed race couple, for example. Or to people of other faiths. Atheists, for example. Or Wiccans. Or Hindus. Or Jews.

    And it cuts both ways too. If Christians can deny service on the basis of a “sincerely held religious belief,” so can anyone else. The potential number of religious objections are legion, as are the specific circumstances that might prompt someone to raise such an objection.

    To put this as simply as possible, when one person’s freedom tramples on another’s, one of them has to give way. No freedom is absolute. The problem is that granting Christian business owners the right to discriminate on the basis of sincerely held beliefs nullifies the equal access and public accommodation laws that protect everyone, including those very same Christians. You simply cannot have it both ways.

  27. The problem here, is that you, Chad, have spoken with a voice of moderation, forebearance, and charity. These are qualities with respect to conservative Christians that Larry does not recognize. From a pragmatic perspective, New Mexico has provided a Solomonesque solution: If a business objects to providing services to same sex weddings, which are the only examples we are hearing about regarding ‘discrimination,’ they are able to post a disclaimer expressing their objections. I would surmise that most gays, when confronted with a vendor who will grudgingly perform the service as required by law, and a vendor who may have no qualms, they will likely choose the vendor with no qualms; Problem solved. It only requires a slight gamble and equivocation on the part of the objecting vendor

  28. Chad one reason you snub another person is because you want them to feel bad. Denying to do business with someone is snubbing them and the only reason someone does it is they feel the need to publicly voice their disapproval of that person. It is practicing your piety before others which by the way the Bible actually tells you not to do. Another reason people snub is because the Bible tells them not to associate with sinners because they will be “polluted” by the others sin. Jesus if you can believe anything you read about him, demonstrated by his associating with sinners, that TRUE Believers have nothing to fear, they can’t be “tainted/polluted by another’s sin” and that by his action of Grace showed the goodness of his ways. Unfortunately many that claim they are True Believers demonstrate with their prejudice that they aren’t. AND another reason is the feeling that has been expressed by some after disasters that “if we don’t clean our own house, God will do it for us, and the good will go down with the bad.” God will bring down his wrath upon us if we allow sinners in our community. This last argument leads to witch hunts, violence against homosexuals, ethnic cleansing and unholy holy wars and these claims that religious people have the right to discriminate/show their disapproval of others.

  29. Edward, there is nothing to respect in someone who wants to engage in the type of business discrimination. Nor do I think bigotry with religious trappings should be given color of law. There is nothing reasonable in such positions. This is why I am taking as harsh a position as possible. It is the most honest way to present the situation and its ramifications.

    If a vendor wants to discriminate, they should not be in a public setting. Do their business by word of mouth or through private clubs. But we do not need people trying to defecate on the Civil Rights Act because they feel it is their religious duty to treat others as less than people.

  30. So essentially what you are saying is that no rule or law should apply to a Christian who is feeling particularly self-righteous at any moment. There is that great Christian morality there. Rules are only there to be applied to other people. If you can claim God is on your side, everything is permitted.

    Its funny how you have to attack all forms of civil rights law in order to try to get your way. Not only do you approve of allowing discrimination against gays, but also every other form of discriminatory conduct. Very scorched earth of you. More proof that the Christian right only thinks of freedoms as applying to themselves and nobody else.

    You may not think LGBT are the same as a racial minority, but you are certainly trying to discriminate against them the same way. Its telling that every civil rights organization supports LGBT rights/marriage equality and does not take your distinction as seriously when it comes to their actions or statements.

  31. Susan you nailed it exactly. Denying to do business with someone is meant to be a malicious harmful act to that person. If they can claim they are doing it for God, any form of bad behavior suddenly becomes allowed in a religious sense.

    It should be noted that the religious freedom argument was dropped. The plaintiff’s knew it was a bullcrap argument. Instead they are using a “freedom of speech” argument. Claiming that artists who do commercial work are somehow exempt from anti-discrimination laws because it is not only a product sold on the open marketplace but an act of personal expression.

  32. Seriously though, what are they afraid of?

    I got married nearly five years ago. We contracted with a cake-maker and spent several hundred dollars for a cake. The cake was made in his bakery. It was dropped off at our wedding venue. We later made arrangements to return some of the cake props. We didn’t do a bunch of flowers for our wedding, but that’s pretty much the same routine. What’s the problem?

    But here’s another issue. I run a blog. I won’t link to it with this post, but one of the common search queries that people type that lead to my blog is something like “how to decline a gay wedding invitation.” I get that search phrase at least a couple times weekly. I always wonder what people are trying to avoid by skipping out on the wedding, but I guess it’s their choice. I just hope they use tact. After all, they might think that our weddings are trash, but our weddings actually do have value and meaning to us. And we thought enough of these people seeking ways to decline the invitations that we invited them in the first place.

    I guess I’m left wondering what they’re thinking they will witness that’s so horrible at our weddings. Or maybe they’re afraid that our weddings won’t meet all of their stereotyped expectations.

    I just never get any search queries like “how to decline an invitation to an interfaith wedding” or “how to turn down an invitation to bar mitzvah” or “how to decline a wedding shower invitation.” People just want to avoid same-sex weddings, I guess, or they don’t know how to use their social skills to independently express tact and politeness.

    But once again, these weddings actually mean something to those getting married. They thought enough to include those who are most important in their lives. And those folks are looking for easy ways to get out of it. It’s kind of sad if you think too much about it.

  33. No, that is not “essentially” what I am saying at all…in your eagerness to set up a strawman to attack you allowed my point to sail right over your head. I am saying that anti- discrimination laws should be employed as narrowly as possible to serve the purposes for which they were intended, particularly when they conflict with the free exercise of a fundamental right such as freedom of religion. Which does not mean that they WILL be so construed, of course, since it is easy for SC justices (as well as “every civil rights organization–august and awe-inspiring though that designation may appear to the easily-impressed like yourself) to drift, right along with the popular culture, off into ever looser construction of the constitution and expansion of federal oversight far beyond the founders’ wildest expectations. Which is not surprising in the least, given that they are appointed based in large part on their estimated willingness to conform to the whatever the current executive’s constitutional leanings may be.

  34. Oh but then how would someone be able to punish someone else for the unpardonable offense of not putting a public stamp of approval on their wedding? Which is all this is about. If a “homophobic” business wanted to serve them they’d boycott it with all the bells and whistles.

  35. Freedom of religion doesn’t even apply here. Even the plaintiff’s dropped it as a loser. It certainly has never been a license to engage in malicious harmful behavior nor excused compliance with laws of general application. What freedom are you talking about with “religious freedom”? Free exercise of religion? Not a chance. What you are asking for are excuses from being accountable for intentional inflicting of harm on people.

    Discriminatory behavior in business cannot be tolerated in general. It attacks the lives and basic dignity of people in their normal interactions. There is no excuse for it. Just because you cough up some new reason for engaging in it means nothing. The actions are the same. Deliberately shutting off commerce to people in a deliberately harmful manner to appease personal bigotry.

    Discrimination in business, especially against groups with a long history of discrimination against them should never be tolerated. You would have anti-discrimination laws narrowly applied to the point of irrelevance and for the most spurious reasons possible.

    Btw invoking the founders when discussing civil liberties, especially equal protection under the law is rather silly. Every one of them not named John Adams approved of owning human beings as chattel property. Our concepts of such things really took hold after correcting their long ignored ommission on the subject.

    People who invoke “the founders” in political arguments are usually full of crap and trying to employ David Bartonesque historical revisionism. Our nation really did experience Lincoln’s “new burst of freedom” when we finally made all civil liberties a federal concern in the mid 19th Century. The states could not be trusted to guarantee personal freedoms. Going back and pretending it never happened is ridiculous.

  36. “Discrimination in business, especially against groups with a long history of discrimination against them should never be tolerated.”

    Business “discriminates” in all kinds of ways, Larry. And if you want a “group with a long history of discrimination against them” to be protected from it then you either have to pass a law to the effect or make a case for why the group should be specially protected by the existing laws put into place to address the peculiar and lasting legacy of slavery and institutionalized racism.

    “You would have anti-discrimination laws narrowly applied to the point of irrelevance and for the most spurious reasons possible.”

    Perhaps today it WOULD be to the point of irrelevance, since we are an infinitely less racist society than the one that civil rights laws were intended to address. That still is not a reason to extend their scope beyond the original intent.

    One thing you need to get straight, Larry, is that the constitution cares not at all about “bigotry” or personal “malice,” even assuming those things come into play. It is about balancing the freedom of the individual against the welfare of the people as a whole.

    “People who invoke “the founders” in political arguments are usually full of crap and trying to employ David Bartonesque historical revisionism.”

    Well then, that would include every Supreme Court justice in the history of the court, as well as every professor who taught him or her the profession. But of course being unacquainted with law and the process of lawmaking and construction beyond appeals to emotion and outrage, you could not be expected to know that.

  37. As an aside, I don’t think our government or the Supreme Court should be getting into the business of deciding whether someone’s beliefs are “sincere” or not. It is better to stay out of the whole mess and stick with secular laws to govern secular activities and to accomodate and preserve the rights of ALL this great diversity of people.

  38. They are afraid that by attending a “gay” wedding they will be endorsing homosexual behavior. AND they are afraid that IF they endorse and allow such behavior in their community that they will 1: be tainted or polluted by the SIN of the homosexual and that will cause them to loose God’s favor and blessing 2. that God will then bring down his wrath upon the city (cause a natural disaster to happen)–if they don’t clean up their town God will do it for them–and they as pure and innocent bystanders might go down with the sinners! At least I think this is the reasoning behind the fundamentalist mindset!

  39. @Shawnie

    “And if you want a “group with a long history of discrimination against them” to be protected from it then you either have to pass a law to the effect or …”

    THEY ALREADY HAVE THEM! Your argument is supposed to be why a bunch of uncivil bigots get a right to ignore such laws. You have so little respect for civil liberties in general you have been arguing against all anti-discrimination laws.

    The constitution cares about bigotry because it provides excuses people use to attack the liberties of others. It concerns malice because an act to harm individuals needs secular and rational justification to be given color of law. Personal malice can never be a legalized excuse for attacking others. In fact it is usually grounds for civil actions.

    As for “founder’s arguments” you are dead wrong. Originalism and “founder intent: is really just the province of the current conservative branch of SCOTUS and does not date back any earlier than Scalia and Thomas. They make up anything they want to avoid legal precedent and about a century of interpretations of the constitution. Again, you are engaging in phony revisionism. It is one of the most intellectually dishonest modes of argument used in SCOTUS in this day and age.

    Just because racial bigotry is passe it doesn’t mean civil rights legislation is as well. As you illustrate other forms of bigotry are alive and well. People still want to give it a legal sheen and ignore concepts like equal protection under the law. You even adopt the same arguments as the segregationists of old. Even being so historically ignorant as to invoke “separate but equal”.

    I am emotional because I understand the full ramifications of your arguments even if you are so wrapped up in bigotry, ego and bile to notice. I see the inherent danger in it, while you still whine about exercising mythical Christian privilege. You will not be satisfied until we are a Christian version of Iran.

  40. “Free exercise of one’s conscience”. That seems on the surface like a perfect expression of our American ideals. BUT there is a problem with it. It is one thing to stand up (exercise your conscience) (which is what many of us are doing) to support the rights and freedoms of others. It is another thing to exercise your conscience to infringe upon or restrict the rights of others, to insist that your rights and freedoms take precedence over the rights and freedoms of others. Civilizations, living in a community with other people, requires give and take, compromise, sacraficing some rights to insure other rights and as someone else pointed out to insure the welfare of the collective, the entire group. Problems have been handled in many different ways. Greater good has sometimes been used BUT that has problems, majorities can cause harm to minorities but the greater good outweighs the harm of the few or so those in the majority claim. An alternative is the Least Harm, whatever causes the least harm is chosen even if it causes some discomfort for others. The claims of the religious that they are being forced to violate their conscience doesn’t hold up to the Least Harm argument. A photographer, baker, florist, citizen may uncomfortable with the idea of same sex marriage BUT they aren’t harmed by it. Denying same sex couples the right to marry, denying them access to services provided to others, does harm them and their families.

  41. Are you really claiming anti-gays are facing “rape and butchering” by being expected to comply with reasonable anti-discrimination laws, Mr. Bresnahan? That’s an obviously overworked anti-gay LIE. It’s time anti-gays stopped WHINING that their intended VICTIMS are “the real bullies.” The anti-gay photographer is the antagonist here, not her intended victims.

    And please stop with the debunked LIE that’s at the heart of your foolish claim about “one’s choice of sexual practices.” Science has proven sexual orientation is inborn and unchangeable. Several US federal and several US State High Courts have examined that evidence and ruled that discrimination on the basis of sexual orientation is similarly unconstitutional as discrimination based on race because BOTH are IMMUTABLE characteristics.

  42. Once again an anti-gay poster thinks we will be fooled if he tries to turn the situation upside down. It is the anti-gay photographer who made the morally unacceptable point, as is proven by the fact that she has been convicted of her criminal act, with said conviction being upheld by the highest court in the state where she committed her criminal act.

  43. So this anti-gay poster, Doc, repeats the hilarious wild claim that anti-gays intended victims are “the real bullies.” Please stop insisting that all Christians are down in the dirt with anti-gays, we know better than that.

    What’s more, it’s really very sad to see Doc give aid and comfort to the criminal activity of the anti-gay photographer, but the entire anti-gay agenda is obviously focused on committing the crime of sedition by seeking to subvert and overthtow the United States Constitution that anti-gays find so very inconvenient.

  44. You’re right, Harrison, a group of anti-gay lawyers from the so-called “Alliance Defending Freedom Of Faith” just can’t accept this settled law, and are on a fool’s errand trying to get these laws declared unconstitutional. These anti-gays are going around the country looking for anti-gay bakers, photographers, florists, and other wedding industry suppliers to violate these laws, promising to defend them for free and pay any fines involved. Research this and any other of these cases, and you will see these “Alliance” lawyers are involved in ALL these cases.

    As bad as it is for hapless anti-gays to be posting the nonsense rhetoric of the shameful lawyers here, the lawyers themselves are inciting these crimes, and should be investigated, and disbarred in some cases.

  45. Chad, if these anti-gays had any consciences, they would not be committing these criminal acts and attacking these innocent same gender American couples. There’s just no point in trying to sell the criminal activities of anti-gays as a “act of conscience.”

  46. Yes Larry, they already have them, but they have to pass constitutional muster. Which is where balancing of freedoms comes into play.

    ” It concerns malice because an act to harm individuals needs secular and rational justification to be given color of law.”

    People “harm” each other all the time, with or without “malice”. Within families, in the workplace, within circles of friends and associates, and so on ad infinitum. Most “harms” do not rise to the level of justifying encroachment on personal liberty in order to prevent them. Physical harm does. Financial detriment does. Institutionalized racism did. It’s a stretch to claim that a bit of extra hassle in procuring a wedding cake or photographer does, and more so when it conflicts with a fundamental right of another. You ought to realize that the main reason why your cause does not garner more support among African-Americans than it does is because of the presumptuousness of equating these minor “gay wedding” issues with the kind of pervasive and crippling institutionalized discrimination that black Americans have faced.

    “As for “founder’s arguments” you are dead wrong. Originalism and “founder intent: is really just the province of the current conservative branch of SCOTUS and does not date back any earlier than Scalia and Thomas.”

    Oh my, Larry, Wikipedia is so NOT your friend. As every 2nd year law student knows, original intent has been one of the standard aids to constitutional construction ever since Chief Justice John Marshall said that “the great duty of a judge who construes and instrument is to find the intention of its makers.” Time to sit down and avoid further buffoonery.

  47. LOL! “Overthrowing the Constitution?” Really??? Is that what you call appellate advocacy? The Supreme Court’s interpretations of the Constitution has been reversed numerous times, most notably when Brown vs. Board reversed Plessy vs. Ferguson. I suppose if it were up to you Thurgood Marshall would have been disbarred and charged with “sedition” for arguing against “settled constitutional law.”

    This is one reason why everyone is guaranteed the right to professional counsel — so judges don’t have to listen to incoherent nonsense like this in their courtrooms.

  48. Re: “Talk about a rape and butchering of any concept of freedom from government tyranny.”

    Nothing about this has the slightest thing to do with “government tyranny.” Or if it does, it’s relative, because after all, DOMA was only recently shot down*, and wasn’t that an example of “government tyranny”?

    Contrary to the idea that there’s “tyranny” at work, what’s actually happened is that there is now more freedom than there had been. Gays can now get married in more places. If photographers don’t like it … well, too bad so sad. Grow up, suck it up, work for a living, and treat people with respect … and equally. If they can’t or won’t do that, they can always find some other line of work. Maybe those gay-hating photographers can line up to replace Fred Phelps and protest at soldiers’ funerals.

    Yes, things have changed. But it’s not due to “government tyranny.” To say that, is a flat-out lie. What has changed is that there’e more freedom. People can either adapt to it, or they can stamp and fume and throw tantrums. The choice is theirs.

  49. “A photographer, baker, florist, citizen may uncomfortable with the idea of same sex marriage BUT they aren’t harmed by it. ”

    They are if forced to participate.

    When my daughter was born I pre-registered for a scheduled C-section at a particular Catholic hospital. My plan was to have a tubal ligation performed at the same time. But of course I was refused because of the Catholic stance against sterilization. And so I did without the tubal. If it had been a big enough deal to me I would have simply gone to another hospital. One thing that I would NOT have done, even if I could have, is to try to run it over them or retaliate with legal action if I couldn’t. I have no desire to force anyone into a violation of conscience–my actual desire is to NEVER to do so– because I have respect for the scruples of others even if I don’t share them. However, this is PRECISELY what activists for same-sex marriage desire to do to others. And that in and of itself, even if condoned by law, is morally reprehensible and exposes this movement for what it truly is.

  50. In the town I live in, there’s a vegetarian restaurant that doesn’t serve meat. At all. To anyone. Meat is simply not on the menu, and no one who dines out anywhere in town feels they are discriminated against because of it. I suspect that your Catholic hospital is very similar to my vegetarian restaurant in that they probably deny sterilization services to everyone, right? It’s just not on the menu, so no one – including you – feels (or is) discriminated against.

    By contrast, many (maybe even most) photographers, florists, and bakers offer a range of goods & services specifically for weddings. Photographs, flowers, and cakes are all on the menu for people arranging their nuptuals, so when one of these businesses serve some people but not others based on personal bias, most people see it immediately for what it is: discrimination.

    As to your point about using other providers, I think every couple in every case at issue actually did find goods & services elsewhere. They had to. But as you know, these business owners can (and as I would argue, should) still be held accountable for engaging in discriminatory behavior. Why? So that others are treated fairly and equitably in the future.

    Now, I don’t believe you really think that fair & equal treatment under the law is “morally reprehensible,” so I can only assume that you think there are grounds for denying legal protection to homosexual couples. Is that right? If so, what I’d like to know is, what differentiates sexual orientation from race, color, creed, religion, national origin, sex, marital status, or disabilities in terms of fair & equal treatment?

  51. Be honest with yourself Shawnie , you can’t have “respect for the scruples of others even if I don’t share them.” and condone the violation of those “others” human rights. There is a difference between those of us who support the rights of others (we are acting out of good conscience) and those who act to deny others their rights as citizens of this country (they are acting out of bad conscience). Remember the story of Pinochio and some early cartoons? There is the picture that comes to mind of a little devil sitting on one shoulder and an angel sitting on the other, one telling us what is the right (although it might be uncomfortable or difficult) thing to do and one telling us what is the wrong thing to do, (although that little Devil did his past to convince us that his way was the virtuous way)! . Another way to look at it is I don’t think the Hobby Lobby guy or the wedding photographer folks or others that claim that are being forced to violate their conscience actually are. I think their EGO is being challenged, and it is their EGO (the devilish side of their nature) not their more virtuous, angelic side that they are listening to!

  52. That is an excellent point! Thank you for that.

  53. Mr. Samuelson I think I can answer your question. For the fundamentalist homosexuality is a Sin against God , an abomination, and the Bible tells them so.The Bible also tells them not to associate with sinners and to throw them out of their communities if they won’t repent and change their evil ways, otherwise the good will be tainted or polluted by their evil and God will bring down his wrath upon the community, clean the place up if they don’t clean it up for themselves, AND they the good virtuous ones will go down with the sinners.

  54. I’m honestly torn and can appreciate both sides of this debate. What if a member of the Westboro Baptist Church came into my billboard business and wanted me to design and make a whole series of ‘God Hates Fags’ billboards? How would I feel to be compelled by law to violate my conscience and be forced to serve and promote (like a slave) the interests of a group opposed to my beliefs?

  55. Um, I think you can NOT answer the question. What does not wanting to attend a same-sex wedding and take pictures of it have to do with throwing anyone out of a community?

  56. “There is a difference between those of us who support the rights of others (we are acting out of good conscience) and those who act to deny others their rights as citizens of this country (they are acting out of bad conscience)”

    This means nothing except that your moral convictions are different from mine (big whoop) and therefore mine are of course “in bad conscience” and not to be respected. Thank you for demonstrating the kind of “tolerance” that our forefathers fled England to escape.

    “Another way to look at it is I don’t think the Hobby Lobby guy or the wedding photographer folks or others that claim that are being forced to violate their conscience actually are. I think their EGO is being challenged”

    Look at it any way you please, but your attempts at mind-reading are neither here nor there. I don’t think the same-sex couples in question are actually being harmed either but merely want to punish those from whom they can not bully a stamp of approval (or is “affirmation” the currently fashionable term?) but of course I don’t expect my personal conclusions and observations to matter to you or anyone else. The question is how to balance personal rights and freedoms.

  57. What differentiates sexual orientation? Well, for starters, it is not a protected class, like the others, under the laws of the federal government or under the laws of a majority of the states.

    Secondly, sexual orientation is a fluid concept which exists on a continuum, which may be acted upon or not acted upon as one pleases, and can manifest itself in many ways all of which are private. It makes no sense to try to create some kind of protected class based upon private and changeable sexual behavior and regard it as comparable to something as obvious and immutable as race, gender, nationality or age. Religion is of course an exception, being a matter of choice, but seeing that freedom of religion is the first and foremost among our fundamental rights and is the primary reason why this nation began in the first place, it’s not unreasonable to protect others from religious discrimination.

    Thirdly, protected classes can typically point to some kind of substantial society-wide economic disadvantage that they need protecting from. Sorry but I’m simply not seeing that in the issues being presented here — and neither do racial minorities, which is exactly why they are not more sympathetic to your cause. At the very least, it’s not the kind of harm that should completely trump freedom of religion without any attempt at balance.

    And no, I don’t find equal treatment morally reprehensible, but the act of trying to force a violation of conscience upon another person even if the law enables it. It says many interesting, and not very flattering, things about those who seek to do it.

  58. It’s not a protected class except in the areas where it is. That’s why this issue came up. Some states and communities expanded anti-discrimination laws to include sexual orientation. Now businesses are grappling with how to be outwardly anti-gay towards customers without violating these ordinances.

  59. Voicing an opinion different from yours Shawnie is NOT intolerance. This is what free speech is all about.Saying that my position is more moral than yours or someone elses is fair game since those claiming they are “acting out of conscience” are claiming that their position is the high moral one. AND I have evidence to back my position, and Biblical passages to back my position. For example Matthew 6: Jesus says if you can believe anything he says, Don’t practice your piety in public, don’t stand on street corners to pray as the hypocrites do. If someone is going to argue that their conscience is informed by their Biblical believs I have the right to point out passages that show the opposite! Homosexuals and their children are harmed in many ways. Marriage grants certain legal rights that aren’t available to unmarried couples, including being allowed to make medical decisions for a spouse when the spouse is incapacitated by debillitating illness or accident. Gay “spouses” have bee kept from the bedside of their partners by parents who don’t approve of their child’s relationship. That causes harm. Tax laws are different for married people than for single people. That causes harm. Spouses that are gay may be denied parental rights to their children. That harms children and the parents. I could go on but perrhaps you should investigate the TRUTH of the issue rather than spouting off and passing on more lies. You know the Bible tells you not to do that.

  60. And many forms of intentional harm to others is actionable under civil law. Most are very well encroachments on liberties and autonomy of others.

    Discrimination in business creates a tangible and recognized harm in of itself. It harms the subject financially by cutting off availability of goods and services and harms the general public by subjecting open commerce to irrational restrictions (making it a governmental responsibility to prevent). When you have legalized discrimination of any type you have institutionalized it. You have given it room to become all pervasive and destructive in general to the people being discriminated against.

    “You ought to realize that the main reason why your cause does not garner more support among African-Americans ”

    Except that is completely untrue. Every group devoted to racial civil rights supports marriage equality, gay rights and opposed the bills to bring back business level discrimination. They all saw the writing on the wall there. (btw my cause is civil liberties and to keep religious based theocratic nonsense out of my government)

    Just because you can distinguish between race and sexual orientation, doesn’t mean organized discriminatory conduct in business becomes more acceptable. The act itself is harmful and lacks any reason for being given the color of law.

    Only 2nd year law students at Liberty Law School look upon original intent as anything other than intellectual dishonest rambling to avoid centuries of interpretation. Your Marshal quote is fairly ironic since it was used to justify going beyond the 4 corners of the Constitution to create a power of judicial review to SCOTUS. A power which was not previously was not considered. Marshall really is the last person one should quote for original intent.

    It is especially silly because civil liberties issues are primarily 14th Amendment issues. Something which was post-dates the founders by a century. Founder intent never applies to equal protection arguments.

  61. “It is especially silly because civil liberties issues are primarily 14th Amendment issues. Something which was post-dates the founders by a century. Founder intent never applies to equal protection arguments.”

    The 14th Amendment has nothing to do with private business, Larry. Anti-discrimination laws involving private business were introduced under the interstate commerce clause.

    “Only 2nd year law students at Liberty Law School look upon original intent as anything other than intellectual dishonest rambling to avoid centuries of interpretation.”

    As you’ve repeatedly demonstrated, you have not the foggiest notion of what goes on in a law school. Stop embarrassing yourself.

  62. None of these “harms” you listed have anything to do with cakes and photography provdied by private businesses.

    “Jesus says if you can believe anything he says, Don’t practice your piety in public, don’t stand on street corners to pray as the hypocrites do.”

    What DO you practice publicly. Impiety? And what does the situation being discussed have to do with standing on street corners? It would seem that these business owners have been dragged into the public eye by others.

    Jesus taught that our piety is not to be a mere matter of public show for the purpose of impressing others. Our piety is to be a way of life, whether public or private. And He cautioned that we must be willing to acknowledge him before men if we want Him to acknowledge us as His.

    How about, instead of looking for biblical passages to support your position, you check out the entire scripture for both spirit and context and THEN decide what your position is?

  63. What human rights were denied to the same-sex couple? The right to be photographed by Elayne Photography? What a crock.

    How can this private photographer be forced to provide work for something she finds objectionable? The fact that any of you support forcing her to do so is ridiculous.

  64. As you know, laws change. Twenty one states presently include sexual orientation in the equal opportunity code, and the trend is heading toward full legal protection so I’d argue that your first defense of discrimination is a weak one. It was once legal to discriminate against every class that the law protects, and as you probably also know, the law is not a basis for morality or ethics. The opposite is actually the case.

    Regarding your second defense, the first thing to say is that sexuality doesn’t reduce to behavior. It also involves interpersonal & physical attraction, which are much harder to pin down. Furthermore, the fact that attraction is mutable (fluid, as you say) doesn’t render it unworthy of protection. After all, as you pointed out, religion is mutable (more so than sexuality) and is protected. So is creed. And then there’s marital status. Not only is it mutable, but it requires that someone make a choice! Moreover, since you raise the issue of religion being a fundamental right, surely you’re aware that the Supreme Court has decided (repeatedly) that marriage is a fundamental human right too?

    Of course, you might reply that these photographers, bakers, and florists aren’t denying anyone the right to marry, and you’d be right. However, this speaks to the more general point that the same legal protections extend (or rather, should extend) to all.

    Your third defense suffers from the same shortsightedness as the second. Who is protected under the law doesn’t reduce to who suffers disadvantages. Not all races, for example, have suffered (or suffered equally) from disadvantages. Indeed, some races have enjoyed substantial advantages, and yet they too are protected from discrimination. Some religions (e.g., Christianity) are highly privileged in our society. And then there’s marital status…you see where this is going, I trust?

    As to your final statement, I sympathize to a point. No freedom is absolute, and there does seem to be some tension between a person’s theological commitments and their obligation (if they operate a business) to treat people equally under the law. But if one’s conscience is violated by treating people equally, or if one’s religion demands that you do otherwise, what does that say about your conscience or your religion?

  65. What you and everyone else is missing here is that nobody is out to “treat people unequally” but simply to not have to participate in an objectionable EVENT, which is all these cases are really about. This is even more true of the photographers than the cake-bakers. I can even see requiring bakers to provide service. For our wedding we bought a wedding cake and a groom’s cake from a supermarket bakery and they were simply dropped off at our wedding site well in advance of the event, and the store probably knew absolutely nothing about our wedding details beyond the name signed on the check. But a photographer has to actually attend and participate in the event. It is absolutely something that impacts one’s free exercise rights, and the minor inconvenience of phoning a second photographer does NOT constitute a harm worth forcing a violation of another’s conscience. Even if our justices can be persuaded to allow this travesty, it nevertheless displays an unmistakable malice and pettiness in anyone who avails themselves of it.

  66. It can be (and probably was) argued that the risk of being forced to “design and make a whole series of ‘God Hates Fags’ billboards” is the price you pay for being entitled for someone else to promote your beliefs even if they disagree with it.

  67. This is not a discrimination issue, it’s an opposing belief and view issue. If your personal belief or religion believes that you cannot drink alcohol, than you will not purchase or consume alcohol from alcohol businesses and bars, etc. This does not mean that you discriminate against alcohol businesses, this means that you set a living standard and live by it. Same rule applies to Elane Photography business – it’s a living standard based on their religion.

    Let’s take a look! Elaine is engaged in a free enterprise business providing photography service that is privately owned. In this matter, she was given a business offer and it is up to Elaine to accept the offer or leave it (based on her religious liberty). This means that the public does not own Elaine’s service, either Elaine owns the public – it’s a business. She’s an entrepreneur and every business in this country can choose who they want their clients to be, who will be their associates, and who are they going to hire? Talent Agencies, Corporations, and many Organizations choose who they are going to represent, who are they going to open their doors to and close their doors to? In addition, Priest, Pastors, Churches also chooses who will they render their service to based on their religious freedom? Could you imagine an Islamic Imam ordered by Supreme Court to conduct a Jewish wedding since he is part of a public organization (or vice versa)?

    That’s right, this is the United States of America where every business and organization have the freedom to render their service to whoever they feel represented by, where one’s free will desire to perform great work; to analyze which solicitation they’re going to take, which offers they’re going to consider, and which business hours (based on religion) they will follow. If this story is true — where Elane Photography did not create insurmountable damages to the gay couple — than an unreasonable Supreme Court Judge Richard C. Bosson will get fired over this.

    Take this for example, if Hitler or Kim Jong-Un request you to film their communist party, are you going to do it OR are you going to refuse to perform the service because you don’t see eye to eye with their communist beliefs?

    However, if you prefer oppression of your religious liberty, one can move to Afghanistan, Syria, North Korea, or Russia, where their religious freedom will most likely be threatened or stripped. Personally, I like to welcome every single one of you to the United States of America where we have religious freedom for all: written BOLDLY by the People for the People in the First Ammendment, U.S. CONSTITUTION.

  68. This is what I would say to a gay couple:
    “Because of my personal values I would feel uncomfortable photographing your wedding. And because of my convictions I am not sure I can produce for you the creativity and quality you might hope for in your pictures. I will photograph your wedding if you desire, but my heart will not be in it.”

    I am not sure why any gay couple would want to hire someone be it a photographer or baker or florist who has reservations. Why not hire a florist or photographer that is enthusiastic about their wedding?!

  69. The thing that concerns me is the idea that the Federal (or State) government can force a business owner (of any faith) to attend any given event. Within this discussion everyone has been talking about the Fed forcing a Christian photographer to attend a gay wedding…WHEN gay marriage becomes the law of the land (as we all know it will), setting a new president, what is to stop the Fed from forcing a photographer of any religious faith from attending an event to take pictures of a Satanist wedding? Would this president force a Christian photographer to attend and take pictures at a live action porn studio featuring gay porn? Where will the Fed draw the line?

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