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Jerry Brown's Proposition 8 stance faults legal arguments of gay marriage backers

California Atty. Gen. Jerry Brown’s decision to ask the Supreme Court to overturn the state’s ban on same-sex marriage has been widely hailed as a victory in the fight for gay rights.

But far less attention has been paid to Brown’s lengthy written rejection of some of the principal legal theories put forth by gay marriage advocates in their bid to roll back Proposition 8. In his brief filed on Friday, Brown said he believed a ban on same-sex marriage undermined fundamental liberties enshrined in California’s Constitution.

But the larger chunk of his 111-page legal filing was devoted to shooting down a more technical legal argument used by gay marriage supporters. Brown said attorneys challenging the measure had “failed” to prove their point that the ballot measure offers such a major revision to the state Constitution that it cannot be enacted by a voter-approved initiative alone.

Brown’s decision to throw the weight of his office behind gay marriage has sparked debate over whether his arguments will actually do more harm than good for those hoping to overturn the initiative. Some opponents of gay marriage say they are relieved that Brown, who personally supports gay marriage, did an about-face and will not be offering a half-hearted defense of the initiative before the Supreme Court. At the same time, they say, Brown’s legal position helps undermine a key claim that voters alone cannot decide an issue that makes such a major change to the state’s Constitution.

“That’s game, set and match,” said John C. Eastman, a director of the conservative Center for Constitutional Jurisprudence at the Claremont Institute, who plans to file a brief supporting the ballot measure. “I think he has greatly bolstered the arguments of the Prop. 8 folks.”

Other experts, however, say Brown has carefully forged a novel legal path that the state’s highest court could follow to overturn the initiative. That could be particularly important if the justices reject the other arguments offered by opponents of the measure. “Strategically, I think it’s a clever move,” said Jesse H. Choper, a professor of law at UC Berkeley.

“It gives the California Supreme Court another way to invalidate Prop. 8.” Immediately after the Nov. 4 election, Brown pledged to defend the initiative, saying he believed it was a properly approved amendment to the Constitution.

In an interview Tuesday, Brown said he changed course after attorneys in his office examined all the legal implications of the measure. He said he was particularly struck by the idea that a ban on same-sex marriage conflicted with the Constitution’s language protecting liberty, which he said the Supreme Court ruled earlier this year included the right to marry.

“The more I reflected on the argument, the stronger I thought it was,” he said. “What is a guarantee worth if you can strip it away by calling it an amendment?” he said.

--Jack Leonard and Victoria Kim

Photo: Los Angeles Times

Comments () | Archives (29)

VERY clever move on Brown's part. He's giving the justices an out in a novel legal issue. He has handed Gay Mariiage backers their best change at Prop 8 being overturned. VERY well done Mr. Brown!

What part of "Majority Rules" don't Gays understand? Proposition 8 was passed by a huge majority, and now because the "Rainbow Coalition" doesn't like the results, they're running to the California Supreme Court to get a ruling they do like. Come on, California, stand up to these sore losers and tell them to get lost! Californians won, Gays lost! It's that simple and they should have no right to overturn a vote of the people!

No one in California has a constitutional right to marry. We have a legislated, administrative choice to marry available. Civil rights can only be granted based on personhood. Persons are persons who have civil rights every day of their lives. Choosing to express strange and novel behavior has everything to do with recent social experimentation with morals. It has nothing to do with civil rights. Strange and novel behavior may be entertaining, but it is not part of the pursuit of happiness.

People should be allowed to be with whomever they love as a fundamental right. However, if there weren't so many "benefits" limited to those legally married, that would be fairer still -- the flip side of getting married as a hetero is many people are forced to stay together for tax and property reasons, to keep their medical insurance and other basic economic issues.

Not to mention hospital visitation. (To limit that to legal spouses, when any tech workers/ part-time employee at any hospital has access to anyone's most sensitive information and even to their person in hospital rooms, is ludicrous. The guy who stole 1000 patient ID's at Cedars-Sinai in just 1 month last year is just ONE guy of many, many more who got caught; and "peeking" out of nosiness is very, very common and legal by anyone who works even casually with a patient, like receptionists, the guy who wheels your gurney with chart around the hospital, etc. Claims of electronic records being secret is a farce -- and then they restrict your unmarried LOVED ONES for "privacy reasons?" That's cruel to all live-in partners as well as gays, and leaves the patient without an advocate.)

Unfairly limiting too many benefits that are really human rights creates a lot of unhappiness and is far more prevalent especially in today's economy and without a comprehensive healthcare plan. This is less of a problem in countries with fewer "benefits" tied to legal marital status.

Seriously, why is the media so focused on news that involves like what? 2-3 percent of the population? It was an election, Prop 8 won, that's it.

The news should focus on economy, jobs, things that involve 90% of the population - gays and straights.

Civil Rights should NEVER be decided by a poll. If that would be the case, even White Europeans (Irish & Italians) wouldn't have rights today.

I support gay marriage and I think that prop 8 is absolutely wrong. I've also read our AG's 111 page argument against prop 8. I have total trust, and confidence, with Gerry Brown's perspective against prop 8. He has isolated, and articulated the problems that prop 8's passage has presented. He may have already won the case. From my understanding, oral arguments are a theatrical performance, and it is the written arguments that save the day.

Jerry Brown is a deep thinker, in a sentence or two he circumnavigates the globe of an issue, and comes back to where the journey began, he is a master of the art of disecting the obvious and revealing it to be inscrutable after all, and then reconstructing the thing of it, corrected.
He and his staff can be counted on to argue this issue based in the law. And When I read a right cannot be amended away? i sense the full weight of the constitution that cannot be moved.


Dear Editor,

I voted "Yes" on Proposition 8, but in no way would I ever agree that the so-called marriages that were performed during the period it was legal in California should be invalidated or nullified. Those who are already married cannot demand that my church and pastor perform a wedding for them under threat of litigation regardless of the conflict with my values and those of others who attend the same church, so there is no reason to take from them the right they had for that short time.

In California law we have a prohibition against ex post facto laws, and this is the perfect application for that statute. Sadly there are many under the mistaken impression that this was a way to strike back at expanding gay rights. Wrong-o my uneducated friend. Nothing in the technical sense has changed. Gays still have their right to civil union and registered domestic partnerships and all the rights and benefits granted under laws, ordinances and policies that go with them. They have lost nothing.

They can still have their commitment ceremonies and even call them a marriage, but they are not legally recognized with the same word. They just can no longer force their choices upon society by shopping around for activist judges who feel my moral convictions are wrong. I, like every person I have spoken with, do not care what goes on between two consenting adults behind closed doors. Just don't demand that I tell my children it is morally appropriate that my church has to solemnize a relationship at the point of a litigious pen. Sadly, we now have Gloria Allred giving people false hope and demanding that the proposition be once again overturned. That cannot happen now.

The judges involved overturned the previous will of the people because it was "unconstitutional." Now the Constitution itself has been changed through codified democracy and the will of the people stands firm. She can try the tired 14th Amendment suit against our entire State Constitution and the whole states rights thing, but if the United States Supreme Court were to decide in her favor it would set a national precedent and completely gut what democracy is all about, leaving every state in the country vulnerable to being legislated from one court in Washington D.C. Not likely. Attorney General Gerry Brown MUST defend the proposition, or resign his position because he has failed to perform one of the basic tenets of the Attorney General.

Proposition 8 followed the law, now everyone else must too. That especially includes barring any attempts to legislate after the fact and take away what individuals already have.

Kevin O'Brien
Orange County, California

Jerry "Moonbeam" Brown have been derelict in his duty to advocate on behalf of the voters of California. His personal biases have trumped his responsibilites. When are people going to understand that homosexual marriage is not a fundamental civil right?. Homosexuals already possess the same rights as heterosexual couples in the state of California. Homosexuals are simply seeking a label. why dont they just call their unions gayrriages?

What Jerry Brown is doing is disgusting. Richard Bloomenthal pulled the same crap here in CT, and got away with it. He is misrepresenting the law in order to promote his own beliefs and agenda. This amendment was passed properly and according to the laws of California. It is a now a part of the state constitution, and if it is overturned, it will undermine the democratic process that has been in place for over 200 years. What Brown has done since the election is to try to make up an excuse for him to argue against this. He should be impeached by the California House and Senate for his actions.

Marriage is just a word. Prop 8 defined the word. The Supreme Court's May 15th decision is very clear - that if California is going to recognize marriage, it must be for all. Several religious entities have filed briefs that marriage is an institution that goes back to the beginning of time - that's Bible time, making it a religious institution.

We all know that our government is not to recognize religious institutions. Again, in many of their briefs, these religious entities have said that civil unions or domestic partnerships are equal to marriage. What's good for the goose is good for the gander.

I believe the court will accept Proposition 8's definition of marriage and then require the state to strike the word marriage from its civil code and replace it with something else. The big question in my mind is how good the religious briefs will be in their argument for invalidating the 18,000 same-sex marriages on the books. If it's provocative enough, the Court might accept the argument and then apply it to ALL marriages. Beware of what you ask for!

The following text is from the court's May 15th decision and should have been reviewed by everyone before voting for Proposition 8:

Just as a statute that restricted marriage only to couples of the same sex would discriminate against heterosexual persons on the basis of their heterosexual orientation, the current California statutes realistically must be viewed as discriminating against gay persons on the basis of their homosexual orientation.
When a statute’s differential treatment of separate categories of individuals is found to violate equal protection principles, a court must determine whether the constitutional violation should be eliminated or cured by extending to the previously excluded class the treatment or benefit that the statute affords to the included class, or alternatively should be remedied by withholding the benefit equally from both the previously included class and the excluded class.
… perhaps in order to emphasize and clarify that this civil institution is distinct from the religious institution of marriage — it were to assign a name other than marriage as the official designation of the family relationship for all couples.
Whether or not the name “marriage,” in the abstract, is considered a core element of the state constitutional right to marry, one of the core elements of this fundamental right is the right of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships.
We need not decide in this case whether the name “marriage” is invariably a core element of the state constitutional right to marry so that the state would violate a couple’s constitutional right even if — perhaps in order to emphasize and clarify that this civil institution is distinct from the religious institution of marriage — the state were to assign a name other than marriage as the official designation of the formal family relationship for all couples.

All these arguments are logical to the one presenting the argument but in the end it is one who has the power (ie FORCE for trekies). Recall Brown and save the taxpayer waiting the court P8 decision and 5 other possible recalls. The US/FL Supreme Courts responded immediately to the FL recount so this delay enables the No on 8 folks to stockpile money for the judical recall. A Brown recall NOW will keep them unprepared. Brown has corp enemies and Protect Marriage has the signers from the P8 drive so a recall can be started now. A new attorney general by March can annul the gay marriages and then go on to eliminate gay unions. This is going to be complete sweep in CA. Join the American Independent Party (AIP) for completion of this task. The Republican Party was created to get rid of slavery but the republicans gave us this court ruling so the AIP guarantees elimination of gay unions and gay power in the state. Do not worry about the legislators they can
be reduced to a part-time Senate per the Little Hoover Commission which is how Nebraska operates. The Terminator seems to be back on the correct track since the announcement of a 10% cut in all departments. He will have to convince the judges to stand-down on P8 since he encouraged the gay court ruling. The court has no say on gay marriage anymore anyway. Power has been transferred the Protect Marriage folks as in the past with Gov Hiram at the turn of the century to cleanup up the government. Start the Brown recall now to save recalling the gay jugdes in March.

The comments of John Eastman should be taken with a grain of salt. First, he is a spokesman for the Yes on 8 forces. Second, he is employed by an organization whose mission is to attack judicial rulings such as the one rendered in the Marriage Case. Finally, his "game, set and match" metaphor is silly. My brief clearly helps those who seek to strike down Proposition 8. While I did not support the revision argument, I offered a far more powerful, non-technical claim--one grounded in Article I of the California Constitution. There the liberties of California citizens are protected. In the Marriage Case, the court ruled broadly that same sex couples have the right to marry and that marriage is protected by Article I as an essential element of liberty. I assert that such a fundamental right cannot be abrogated without a compelling state interest; otherwise Article I liberties would be illusory. The language of Proposition 8 is identical to that of Proposition 22 which the court ruled invalid in the Marriage Case. The fact that Proposition 8 qualified for the ballot with 8% of the voters instead of 5%, as was the case with 22, should make no difference. The attempted deprivation of a fundamental right is the same.


SECTION 1. All people are by nature free and independent and have
inalienable rights. Among these are enjoying and defending life and
liberty, acquiring, possessing, and protecting property, and pursuing
and obtaining safety, happiness, and privacy.

As one of the other comments noted, Jerry Brown has indeed cut to the heart of the matter on this topic. The Supreme Court has ruled that marriage is a fundamental right under Article 1, Section 1 of our constitution. These rights are stated in the constitution to be "inalienable". The Proposition 8 supporters complain they don't want the "definition of marriage" changed. Well, what about the "definition of inalienable"?

This now has morphed into something greater than "marriage". Now the question is "are our rights truly inalienable?" I believe the answer is (and should be) yes. That means that Proposition 8 cannot stand. Those of you who support Proposition 8, take a deep breath and think about what you are trying to do. Would you really want to change the definition of "inalienable" just because you don't like gays? That would be the ultimate "cut of your nose to spite your face".

Dear Kevin O'Brien,

1. Gays having the right of marriage never threatened any church with litigation. All Churches are protected under the First Amendment of the Constitution of the United States. Just as divorced people cannot sue the Catholic Church for not marrying them and Black people could not sue the Mormon church for not allowing them into the priesthood in the 70s, same-sex couples cannot sue churches for not marrying them. It's always been this way. Your right to freedom of religion was ALWAYS protected. You were lied to by the Yes on Prop 8 campaign. Now, churches that recognize and perform same-sex marriages are no longer allowed to solemnize them. You, by voting for Prop 8, stomped all over their religion rights. Those include over half the churches in my neighborhood (and I don't even live in SF).

2. Domestic partnership and civil unions do not provide all the same rights as marriage. I know the law better than you and have had to implement them. Just because you can quote the CFC 297.5 doesn't mean that you know anything about how the law works. Unless you have experience implementing these laws, you are guilty of "bearing false witness".

3. Your "activist judges" are not "chosen" by the gays. They are appointed by the governor, and 6 out of 7 of the Supreme Court Justices were appointed by Republican governors. They did their job. We live in a constitutional republic, not some ancient democracy whose lack of checks and balances caused it to implode on itself.

4. It is *your* job, not the government's job, to teach your children morality. Since when is okay to legislate any one group's "morality"? If you don't think same-sex marriage is right, then don't marry someone of your own gender and teach your kids whatever you want. I think porn is immortal, but if someone asked me to vote, I would vote for freedom of speech.

5. The CA Supreme Court overturned the ban on interracial marriage in 1948, in opposition to over 90% of the people. Over 90% thought it was immoral. But like other fundamental rights, the decision does not belong to the people. Without an independent judiciary, who is not afraid to do what is right, even in the face of 100% of the people, we could not be the "beacon on the hill" we are today.

6. In case you didn't read the Yes on Prop 8 brief, they want Prop 8 to be interpreted literally. "Only a marriage between a man and a woman is recognized..." That means that any marriage that is not, will not be recognized. That means that every legal document (like buying a house) that is dependent on those marriages is affected. As it stands, it means that those 18,000 are no longer valid in the state that gave them out. WOW. Also, a lot of people's hopes and dreams were destroyed. What the heck did you think you were voting on? Hello?? Good job, pat yourself on the back.

7. Prop 8 was meant to take away what individuals already had, marriages and the right to marry the person they wanted to call "family". What did you think you were voting on? Hello?

I'm straight, traditional, married with children. And I don't even have any close family members who are gay. However, I understand the law and the fundamental principles of my own government. It seems like many of you Yes voters did not, as demonstrated by you, Kevin O'Brien. Any constitution that has clauses that contradict each other can be reviewed and the conflicting clause can be overturned. As it stands, the constitution contradicts itself. And it wasn't those judges who changed the definition of marriage, it was Prop 8 that changed the definition of marriage. You see, many of us believe that marriage is about love, commitment, and family... choose one and "forsake all others." The fundamental right to marry "the one", your soulmate, your life partner, is one of the best fundamental rights of being an American, some of us might say the best. You have no right to take that from anyone, or to declare your definition more right than that of me and my 3 generations of good old-fashioned AMERICANS who voted NO on Prop 8. Some of us even voted of McCain-Palin, but KNEW that Prop 8 was so wrong on so many levels. You certainly didn't have the right to vote away the marriage of anyone, especially people who probably don't want anything to do with people like you anyway. They just want to live their lives, like you or I do. If you weren't so busy getting mesmerized by those bright, yellow happy-shiny-people Yes on Prop 8 signs, you might have figured this out early. Now it might be too late.

I am tired of debating this... Prop 8 should never have been on a ballot. No majority vote should ever be allowed to take away a minorities rights.

For any prop 8 supporters reading this, please just try for one minute on how you would feel if the majority vote took away one of your rights away. If after really thinking about how it would feel and not changing your position on the issue, then i feel sorry for you, sorry that you live your life with hate in your heart.

We are not talking about 1-3% of the population. This proposition took away the rights to at least 10% of the population. (I say at least because so many people remain in the closet so they don't have to fact the bigotry and hate we are experiencing today).

If a majority vote can simply take away rights were does it end, should we nullify all marriages that do not produce children within the first year? Should we take away women rights to vote again? Should we no longer allow bi-racial marriages? There are allot of ignorant people out there I am sure we can take away everyone's rights simply becuase they are a minority and majority rules right?

If this does not get overturned by the court, wait till the next vote when your rights are on the line. Then just then maybe everyone will understand why we are fighting proposition 8.

What part of 'seperate but equal' do you not understand? It was used for the blacks and look how that turned out. Gay will never be equal under these standards and its sad to think how misinformed all you 'yes on 8' voters are. Apparently no one still understands 'separation of church and state', or the matter of 'voting against a minority'. So let me break it down, for the less competent.

- 'Seperation of Church and State.' the church has the right to refuse marriage upon anyone (straight or gay), meaning gay marriages will be allowed by the state. It has nothing to do with religon, not everyone wants to get married in a filthy church run by hypocrites.

-Thomas Jeffersons written document of how the vast majority should never vote against a minority, otherwise a country would digress rather than progress.

Look we're not asking for any special rights, we're asking to be treated like equals.

It must be a scary thought..for the church, homosexuals being treated with equality.

Interesting how everyone gets so worked up over this issue. I say the whole issue is quite easy, first we legalize gay marriage, then we can go onto legalize polygamy. And why not can cousins or siblings marry? Also, if a wife dies, why souldn't the dad marry his daughter?

Something to think about, huh?

American law is set up by the people, for the people. After the voice of the people via vote has been tallied and counted no one has the right to overturn their decision. On the marriage issue my home State of California has spoken wisely and fought a good fight for what they know is right.

If foolish judges wish to attempt an overturn of the will of the people in what laws they forge for themselves--may God have mercy on the souls of those involved--I will stand beside Californians to fight them and their corruption until their trechery is undone and their just punishments fulfilled. At that point, push may just come to shove, but in the strength of the Lord and His wrath we will prevail against them and their axis.

I agree with the earlier commentor that much homosexuality and widespread similar evils are the result of recent experimentation with morals. Yet still, and for as long as I have breath to remind everyone in earshot I will say it, the wicked ARE outnumbered.

Lastly, I don't really mind if they are upset with goodhearted Americans because evil people have repeatedly LOST their fights with America! God has blessed us with an indominable spirit of courage and we will prevail again!

Western USA

well, gays already have a right to marry the opposite sex. why are they asking for an additional "right"? i don't see how they can argue that they already had the right to gay marriage. they didn't.


“What is a guarantee worth if you can strip it away by calling it an amendment?”

Hey Jerry,

It's called an AMENDMENT. Quite simple. There is no such thing as a guarantee that's outside of the jurisdiction of law, and there is no such thing as a law that can't be amended.

I suppose that our AG isn't familiar with the notion of a Constitution being a "living document" and thus subject to change over time as needed. In 1850, no one ever thought of defining marriage as "between a man and a woman" in the Constitution because they never realized this would become an issue. For similar reasons, the Bill of Rights was never included when the U.S. Constitution was first written. You can't think of everything and that's why you need democratic amendments.

In the morons in our courts were to actually side with this illogical argument, it would be such a perversion of democracy that I can't help but think that the U.S. Supreme Court would be forced to step in and slap some sense into California. People who are arguing that this is "liberty" are missing the point. You can't use FASCISM to promote liberty, and using the courts to trash the democratic process of Constitutional amendment based upon a subjective belief is the definition of fascism!

No, the only logical way to overturn Proposition 8 is the technical argument (revision vs amendment), but if the courts play that game, I guarantee you that the people are not going to be very happy. Apparently, Mr. Brown thinks that the logical argument is not going to work, but a completely illogical argument just might...

...well, this is California!

I'm sorry if some people think homosexuality is wrong. They are entitled to believe that. However, millions of people do not. Incest, pedophilia, WRONG. Polygamy violates our modern western definition of marriage, "choose one and forsake all others", and by that definition, it is also WRONG. Love between two consenting and committed adults... NOT WRONG.

I find it ridiculous that people who continue to defend Prop 8 speak of love, as if it were dirty. We already know that some of you think that it is "sinful." So what do you think of love that is mutually rewarding that creates a new family (that begins with the happy couple)? Is that dirty and sinful too? What if the happy couple was able to get married before the election, before hundreds of family and friends who came to witness their declaration of love and commitment? Are those family and friends dirty and sinful too? I assure you that you would get no such celebration for pedophiles, incest, and the like. If homosexuality were so WRONG, 18,000 couples would not have married in this way.

You people have no respect for your fellow Americans or their beliefs, and your words are hypocritical. Voting against and encouraging others to vote against love and commitment and the beliefs of your fellow Americans is NOT respectful OR American. Many people believe that divorce is immoral. They have every right to condemn it in their own churches, and their churches are protected from having to marry or acknowledge the marriages of divorced people. However, they have no right to vote away a civil divorce. The same goes with your church when it comes to same-sex marriage. You have every right to condemn it in your OWN church and that right will always be protected by the First Amendment. But you had no right to take away the right of our churches from solemning marriages they believe in. NO RIGHT. And likewise, you had no right to vote away the hopes and dreams of your fellow Americans. 2-3% of the population is part of the gay community. That means that about 45% of the voters considered the information from both sides, saw through the lies of the Yes on Prop 8 campaign, and when asked to vote on other people's marriages, other people's lives, had the courage and decency to vote no. I'm sorry for those people who were not one of the 45%.

I am a heterosexual, and I find it insulting when people think to speak for all of us and say that homosexuals cannot use the word "marriage," even as a legal status. Why? I grew up in this country, hoping to find my soulmate, "the one", to "choose one and forsake all others" and had a SOLID understanding that I had the right to marry that person. My family didn't appreciate Prop 8 redefining marriage for us. Cheapening the definition of marriage with declarations of "we all have the same right to marry someone of the opposite sex and gays just want special rights" is the same cheap antiquated logic of "we all have the same right to marry someone of our own race and Blacks just want special rights."

All human beings who want to partake in marriage should be welcome to do so. Loving, committed monogamous relationships between two consenting adults, whose spiritual and physical connection is strengthened and protected by marriage, are what we should encourage, and the more, the merrier. Those who want to exclude others from marriage or do not take the commitment of marriage seriously are the ones who devalue marriage, NOT homosexuals.

Regarding Attorney General Gerry Brown recent 111pg brief, people must be reminded of how the responsibility for the health of The Constitution falls directly at the feet of the Attorney General. Seeing any political figure actually doing his/her job objectively, even in the face of a disapproving & VERY slim Majority is only alien to us Californians because we're so used to seeing politicians fold to the whims of some future election instead of concentrating on the job he/she was elected to do. Just think: we could've already had balanced budgets & high speed rail if the folks who had been elected to compromise & pass legislation, actually got together to pass legislation. To his credit, Mr. Brown is actually favoring the upholding of the Constitution over the whims of "'The People' no matter how unenlightened"!; someone had to bandage up our Constitution after the brutal assault of Prop 8: enter Dr. Brown to whom I'd gladly give a hearty salute. Long live the CA Constitution!

It's important to point out that Gerry Brown isn’t "siding with Gay activists and/or The Liberals"; he's actually "siding" with the clear directives of The California Constitution and seems to understand that the Constitution has suffered a very dangerous assault by a majority which was admittedly manipulated by factions from within and without the State. Kudos to Mr. Brown on this one. There will certainly be mean-spirited and obstructionists elements who will try to oust him for this, but History will surely remember him as one of the "Good Guys" on this matter. (Whereas Pugno and Poor Kenneth Starr with their recently stated intent to forcibly divorce innocent people in love, will just as surely go the way of Benedict Arnold or worse...)

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