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Fed’l benefits issues linger post-DOMA for gay couples

Questions remain on Social Security, taxes, veterans benefits and family leave

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Jeff Zarillo, Paul Katami, Sandy Stier, Kris Perry, David Boies, Chad Griffin, gay marriage, same-sex marriage, marriage equality, Proposition 8, Defense of Marriage Act, DOMA, Prop 8, California, Supreme Court, gay news, Washington Blade
Jeff Zarillo, Paul Katami, Sandy Stier, Kris Perry, David Boies, Chad Griffin, gay marriage, same-sex marriage, marriage equality, Proposition 8, Defense of Marriage Act, DOMA, Prop 8, California, Supreme Court, gay news, Washington Blade

Federal benefit issues for gay couples continue to linger after the Supreme Court ruling against the Defense of Marriage Act (Washington Blade photo by Michael Key).

Following the Supreme Court’s decision striking down the Defense of Marriage Act, the extent to which many federal benefits — taxes, Social Security, veterans benefits and family leave — will flow to married same-sex couples remains in question.

The Obama administration has extended certain benefits to married same-sex couples regardless of whether they live in the United States, but other benefits are still in limbo because of law, regulation or policy that determines whether a couple should be considered legally married.

Here’s a breakdown of these benefit categories and where they stand in terms of what’s obstructing their flow to married same-sex couples and what LGBT advocates see as the way forward:

1. SOCIAL SECURITY

Last week, the Social Security Administration announced for the first time it was starting to process retirement claims for married same-sex couples who apply for them in aftermath of the court decision on DOMA. But the extension of these benefits is limited.

On Friday, the agency published guidance indicating these benefits will flow to same-sex married couples living in states that recognize their unions, but couples that apply for these benefits in non-marriage equality states for the time being will have their requests placed on hold.

“Bill (the claimant) and Bob (the NH) marry in MA after MA recognizes same-sex marriage, but are domiciled Texas (TX),” the guidance says. “Bill files for husband’s benefits on Bob’s record. They meet all other factors of entitlement. Hold the claim.”

William “BJ” Jarrett, a Social Security spokesperson, confirmed on Monday the agency is processing some Social Security retirement spouse claims when the individual was married in a state that permits same-sex marriage and lives in a marriage-equality state at the time of application — or while the claim is pending a final determination. Still, he acknowledged other retirement claims are on hold.

“For all other claims, including Social Security survivors benefits, we continue to work with the Department of Justice on the development and implementation of policy and processing instructions,” Jarrett said. “We do, however, encourage individuals who believe they may be eligible for Social Security benefits to apply now to protect against the loss of any potential benefits.”

The reasoning for placing these claims on holds is statutory. Social Security law looks to the state of residence when a couple applies for benefits to determine if they’re married instead of looking to the place of celebration.

Even so, LGBT advocates say it’s possible for the Obama administration to interpret the Supreme Court ruling against DOMA in a broad way that allows them to offer Social Security benefits to a greater number of couples.

Michael Cole-Schwartz, a Human Rights Campaign spokesperson, indicated that no final decision has been with the assessment of these benefits as he encouraged the Obama administration to expand the benefits to additional couples.

“We are glad to see some couples getting benefits and that the door is still open for those couples living in non-marriage equality states,” Cole-Schwartz said. “We urge them to take the broadest interpretation to ensure the maximum numbers of same sex couples have access to benefits.”

Susan Sommer, a senior counsel at Lambda Legal, said her organization also believes gay couples in civil unions or domestic partnerships should also be eligible for Social Security benefits.

“We think that the laws reads for sure to includes those people who live in those states that have a civil union or domestic partnership, but waiting to hear from the Obama administration for confirmation on that point,” Sommer said.

But a statutory change may be necessary. In that event, Rep. Linda Sanchez (D-Calif.) has introduced Social Security Equality Act, which would enable gay couples to receive Social Security no matter where they live — even if their union isn’t a marriage, but a civil union or a domestic partnership.

“It is time for our government to stop telling gay and lesbian couples that they are second class citizens,” Sanchez said last week in a statement. “Same-sex couples pay into Social Security over the course of their working lives just like other Americans. They should receive the full benefits they have earned.”

2. TAXES

Another question is whether legally married same-sex couples throughout the country will be eligible for tax benefits — such as the exemption from the estate tax, the ability to jointly file and exemption from taxes on employer-provided spousal health benefits — in the wake of the DOMA decision. These couples are currently not receiving benefits if they live in states that haven’t legalized marriage equality.

That means if DOMA-lawsuit plaintiff Edith Windsor had moved to a non-marriage equality state like Alabama with Thea Spyer after marrying in Canada, she wouldn’t have been eligible for exemption from the estate tax as a result of her own lawsuit.

But what’s different about these benefits is that neither law nor regulation keeps these benefits from flowing to married same-sex couples that live in marriage equality states. It’s simply the policy of the Internal Revenue Service to look to the state of residence as opposed to the state of celebration in determining whether a couple is married.

Lambda’s Sommer pointed out that only policy is keeping the IRS from allowing these couples in non-marriage equality states to receive tax benefits entitled to other married couples.

“We are aware of no statute or even a regulation that prescribes a choice of law rule for determining the marital status for tax purposes,” Sommer said. “There’s no legal impediment to having the administration follow a place of celebration standard. It could so in addition to, say a place of domicile standard, which has been articulated in some tax court rulings, but still, in some circumstances, as a place of celebration rule.”

An IRS spokesperson referred to the statement currently on the agency’s website posted at the time of the Supreme Court in response to inquiry on whether IRS would implement tax benefits for married same-sex couples on the nationwide basis, regardless of their states of residence.

“We are reviewing the important June 26 Supreme Court decision on the Defense of Marriage Act,” the statement says. “We will be working with the Department of Treasury and Department of Justice, and we will move swiftly to provide revised guidance in the near future.”

3. VETERANS BENEFITS

Defense Secretary Chuck Hagel announced on the day the U.S. Supreme Court struck down DOMA that the Pentagon would comply the law to implement benefits for service members with same-sex spouses. But the question of whether veterans will be included as part of the package remains to be seen.

In U.S. Code, the Pentagon was previously unable to provide gay troops spousals benefits under Titles 10 and 32, which govern rights for service members, because of the Defense of Marriage Act. Now that the Supreme Court has struck down Section 3 of DOMA, those benefits should begin to flow.

However, the benefits under Title 38, which governs benefits for veterans, define spouse independently of DOMA in opposite-sex terms. Some of the benefits allocated under this law are disability benefits, survivor benefits and joint burial at a veteran’s cemetery. It’s unclear whether these benefits will begin to flow along with these other benefits because of the wording within the law.

Multiple media outlets are reporting that the Pentagon intends to have the benefits issue wrapped up by Aug. 31 along with the extension of benefits that were available under DOMA, such as military IDs, that were announced in February. Additionally, the U.S. Justice Department is required to file in McLaughlin v. Hagel, an ongoing DOMA lawsuit, to provide a status report by Sept. 9 on benefits afforded to gay troops addressing the Title 38 issue. An informed source told the Washington Blade the issue may be resolved as soon as this week.

Alex Nicholson, who’s gay and legislative director for Iraq & Afghanistan Veterans of America, said his organization has spoken about the issue with the administration and believes it has a “justifiable mandate” to afford these benefits to the legal spouses gay veterans.

“It’s not surprising that they’re taking their time to figure this out and do it right, but I think the mandate from the Supreme Court was clear enough that they could definitely move a little faster,” Nicholson said.

Lambda’s Sommer said the issue for gay veterans isn’t so much Title 38 because Title 1 of the U.S. Code should allow for a gender-neutral construction of this law. Still, she said other portions of the law related to veterans benefits could impact gay veterans seeking claims.

“In the veterans benefits area, there is also a statute kind of like what’s seen in the Social Security context that looks to the place of domicile at the time of celebration or when the right to the benefit has accrued,” Sommer said. “We’ll have to await guidance for how the administration will treat veterans who resided at the time of their marriage, and continue to live, in states that don’t respect their marriages.”

Lt. Cmdr. Nathan Christensen, a Pentagon spokesperson, said the Defense Department is working on the issue, but unable to provide additional information.

“The Department of Defense is working alongside the Department of Justice to implement the Court’s decision as quickly as possible,” Christensen said. “At this time no decisions have been made.”

In a statement provided to the Blade, the Department of Veterans Affairs similarly said the department was working to implement the benefits without providing anything conclusive on the extent to which they would flow.

“Our commitment to our Veterans and their families will continue to be our focus as we work to comply with recent Supreme Court decisions,” the statement says. “We are working closely with the Department of Justice to review relevant statutes and policies to implement any necessary changes to Federal benefits and obligations swiftly and smoothly in order to deliver the best services to all our nation’s Veterans.”

Here a change in the law may be required as well. The Charlie Morgan Act, introduced by Sen. Jeanne Shaheen (D-N.H.), would enable spousal benefits to flow to gay veterans. It was reported out of the Senate Committee on Veterans’ Affairs just prior to August recess.

4. FAMILY AND MEDICAL LEAVE

Yet another issue that related to family leave still persists a few days after the Labor Department issued guidance stating the Family & Medical Leave Act will apply to married same-sex couples in the wake of the Supreme Court decision against DOMA: Will the change apply to married same-sex couples in non-marriage equality states?

On Friday, Labor Secretary Thomas Perez issued guidance to department staff notifying them the Wage & Hour Division made the change as the result of the work with the Justice Department and calling the Supreme Court ruling against DOMA “a historic step toward equality for all American families.”

“As part of this process, the Department of Labor updated several guidance documents today to remove references to DOMA and to affirm the availability of spousal leave based on same-sex marriages under the Family and Medical Leave Act (FMLA),” Perez said. “This is one of many steps the Department will be taking over the coming months to implement the Supreme Court’s decision.”

The Family & Medical Leave Act entitles employees to take unpaid, job-protected leave for family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to 12 work weeks of leave in a year-long period for the birth of a child or to care for spouse and up to 26 work weeks of leave to care for a service member with a serious injury.

But under current policy, this post-DOMA application of the Family & Medical Leave Act won’t apply to married same-sex couples if they place of residence doesn’t recognize same-sex marriage. A Labor Department official said the Wage & Hour Division’s Family & Medical Leave Act regulations define “spouse” for purposes of marriage as recognized under the state law where an employee resides. All that would be required for to change this policy is a change in regulation.

Tico Almeida, president of Freedom to Work, called on the Labor Department to update the regulations so same-sex marriages are recognized by the state of celebration for family and medical leave purposes.

“The couple that lives in Alabama, flies to New York City for the weekend to get married and returns to Alabama deserves to have the same FMLA rights as the gay and lesbian couples that live in New York City,” Almeida said. “We want a 50-state solution, and that means recognizing same-sex marriages by the state of celebration, even though current FMLA regulations recognize marriage by the state of residency.”

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Lebanon

Lebanese LGBTQ group responds to latest war

Helem’s Beirut community center ‘a vital crisis hub’

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(Image via Helem/Facebook)

A Lebanese advocacy group is providing support to LGBTQ people who have been displaced during the latest war between Israel and Hezbollah.

Helem Executive Director Sandy Mteirik on Monday told the Washington Blade her group, in partnership with another NGO, has “shifted our programs to focus entirely on emergency response.”

Helem has opened what Mteirik described as a “lifesaving, inclusive shelter specifically for transgender individuals who find collective shelters unsafe or inaccessible.”

Mteirik noted Helem’s community center in Beirut, the Lebanese capital, “now serves as a vital crisis hub where” LGBTQ people “can find physical safety, psychological support, and relief assistance.” she told the Blade that Helem is also offering “confidential emotional support, assessing immediate needs, and connecting individuals with emergency housing and protection services.”

“We also continue to monitor and document protection risks to prevent further exclusion and harm,” said Mteirik.

‘Displacement crisis has intensified’

The U.S. and Israel on Feb. 28 launched airstrikes against Iran. One of them killed Supreme Leader Ayatollah Ali Khamenei.

Hezbollah, an Iran-backed Shia militant group the U.S. has designated a terrorist organization, in response launched rockets into Israel. The Jewish State on March 2 began to carry out airstrikes against Hezbollah in Lebanon.

The Lebanese Health Ministry on Tuesday said Israeli airstrikes have killed 2,124 people and wounded 6,921 others. Lebanese officials have also indicated the war has displaced more than 1 million people in the country.

Israeli airstrikes in Beirut and elsewhere in the country on April 8 killed more than 300 people and injured upwards of 1,100.

President Donald Trump the day before said “a whole civilization will die tonight” if Iran did not agree to end the war and end its blockade of the Strait of Hormuz, a strategic waterway that connects the Persian Gulf and the Gulf of Oman through which roughly 20 percent of the world’s crude oil passes.

Trump less than two hours before the deadline announced a two-week ceasefire with Iran that Pakistan helped broker. Trump said the deal did not include Lebanon, even though Pakistan insisted it did.

Hamas militants on Oct. 7, 2023, killed upwards of 1,200 people when they launched a surprise attack against Israel from the Gaza Strip. Hezbollah the following day began to launch rockets into Israel.

An Israeli airstrike in Beirut on Sept. 27, 2024, killed Hassan Nasrallah, Hezbollah’s long-time leader. Iran four days later launched upwards of 200 ballistic missiles at Israel.

The U.S. helped broker a ceasefire between Israel and Lebanon that took effect on Nov. 27, 2024. Israel nevertheless continued to carry out airstrikes in Lebanon.

Lebanese Ambassador to the U.S. Nada Hamadeh Moawad met with Israeli Ambassador to the U.S. Yechiel Leiter on Tuesday at the State Department. The meeting is the first time the two countries have held direct diplomatic talks since 1993.

Mteirik told the Blade that Helem’s community center “has not been damaged yet” in the latest war. She said, however, the impact of the April 8 airstrikes “mirrors the ongoing war Lebanon has endured since 2024.”

“The intensity of these recent strikes and the resulting massacres in ‘relatively’ safe areas of Beirut have been devastating,” said Mteirik.

“With over 300 victims, the displacement crisis has intensified,” she added. “When state responses are not inclusive, LGBTQIA+ individuals face amplified risks, including exclusion from collective shelters, homelessness, exposure to violence, loss of income, and barriers to essential healthcare.”

Helem: Lebanese government war response must be LGBTQ-inclusive

Article 534 of Lebanon’s Penal Code states “any sexual intercourse contrary to the order of nature is punishable” by up to a year in prison. Several judges in recent years have opted not to use the statute to prosecute LGBTQ people who have been charged under it.

Helem on March 4 called upon the Lebanese government and international NGOs to develop a response to the Israeli airstrikes that is “comprehensive, fair, and inclusive of all groups, without exception or discrimination.” Helem’s specific requests include:

• Integrating a rights-based, non-discriminatory approach into all stages of emergency planning.

• Training response staff on protection principles regarding gender-based violence and discrimination.

• Reassessing the “traditional family” shelter model that systematically excludes non-traditional families and individuals.

• Involving specialized civil society organizations in the design and monitoring of response plans.

• Establishing clear accountability standards to prevent discriminatory practices.

“Past experiences show that state response plans often fail to include displaced LGBTQ+ individuals,” said Mteirik.

Mteirik conceded the “conclusion of this conflict remains uncertain.” She stressed Helem “remains committed to standing with our community.”

“In these difficult times, we reaffirm our call for humanitarian solidarity that transcends identities,” said Mteirik. “Our work is an extension of our rejection of violence, occupation, and the exploitation of individuals and their lives.”

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Federal Government

Inside the LGBTQ records of Todd Blanche and Markwayne Mullin

Two men are acting attorney general, DHS secretary

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From left, Acting U.S. Attorney General Todd Blanche and Homeland Security Secretary Markwayne Mullen (Photos public domain)

President Donald Trump became famous for his use of the phrase “You’re fired!” while hosting the reality TV show “The Apprentice” in the early 2000s. However, during his time in the Oval Office, he has attempted to distance himself from that image.

Despite those efforts, the phrase once again comes to mind as Trump has fired two high-level female Cabinet members within the past month: Pam Bondi and Kristi Noem.

Their replacements — Todd Blanche at the Justice Department and Markwayne Mullin at the Department of Homeland Security — bring records that, while different in depth, both reflect limited support for LGBTQ protections and, in some cases, direct opposition.

Todd Blanche

Acting attorney general

Little has been found regarding Todd Blanche’s LGBTQ history prior to his role as acting head of the Department of Justice. Unlike those who have worked within the Justice Department’s Civil Rights Division or served as state attorneys general, he has not developed a public-facing legal ideology on LGBTQ issues.

Blanche attended American University for his undergraduate studies — like fellow Trump attorney Michael Cohen — where he met his future wife, Kristin, who was studying at nearby Catholic University in D.C.

He began his legal career as an intern at the U.S. Attorney’s Office in Washington, which eventually became a full-time position. He later worked as a paralegal in the U.S. Attorney’s Office for the Southern District of New York while attending Brooklyn Law School at night. Blanche graduated cum laude in 2003. He and his wife later married and had two children.

Blanche left the U.S. attorney’s office in 2014, taking a job in the Manhattan office of the law firm WilmerHale. In September 2017, he moved to Cadwalader, Wickersham & Taft LLP, where he was a partner in the White Collar Defense and Investigations practice.

In his personal capacity, he represented several figures associated with Donald Trump and former New York City Mayor Rudy Giuliani, including Trump’s former campaign manager Paul Manafort, businessman Igor Fruman, and attorney Boris Epshteyn.

In 2024, Blanche switched from Democrat to Republican, aligning himself with Trump’s political orbit. He later served as Trump’s personal defense attorney in the New York State case that led to Trump’s 2024 conviction on 34 felony counts of falsifying business records to cover up hush-money payments to bisexual adult film star Stormy Daniels.

Now the highest-ranking official at the Justice Department, Blanche has played a central role in overseeing the department and has been involved in leadership decisions tied to several controversial actions affecting LGBTQ people.

In a letter to New York Attorney General Letitia James, Blanche declared that the Justice Department “will not sit idly by while you attempt to use your office to force harmful procedures on our most vulnerable population,” if legal action were taken against NYU Langone. The hospital had “permanently” ended a program earlier that month after the Trump-Vance administration threatened to pull all federal funding if it continued prescribing puberty blockers and hormones to minors.

Blanche wrote that “the Justice Department believes the law is clear, and anti-discrimination laws cannot be used to force NYU Langone to perform sex-rejecting procedures on children.”

“As just one example, your office’s position would require a hospital to prescribe certain medications for certain diagnoses, regardless of the hospital’s or its doctors’ independent medical determination about the propriety of such treatment,” he said.

Blanche also echoed his predecessor’s public stance on limiting LGBTQ-related protections at the federal level, aligning with Bondi’s sentiments in June 2025 regarding the U.S. Supreme Court’s 6–3 decision that restricted LGBTQ history lessions in schools and limits lower federal courts from issuing nationwide injunctions — rulings that have often blocked Trump administration policies.

Calling it “another great decision that came down today,” Blanche argued that the ruling “restores parents’ rights to decide their child’s education,” adding: “It seems like a basic idea, but it took the Supreme Court to set the record straight, and we thank them for that. And now that ruling allows parents to opt out of dangerous trans ideology and make the decisions for their children that they believe is correct.”

In December 2025, a Justice Department memo stated that, “effective immediately,” prisons and jails would no longer be held responsible for violations of standards meant to protect LGBTQ people from harassment, abuse, and rape under the Prison Rape Elimination Act. The law, passed unanimously by Congress in 2003, requires that incarcerated people be screened for their risk of sexual assault, including consideration of LGBTQ status, and applies to all correctional facilities.

Additionally, when the Justice Department, under Blanche’s deputy leadership and at Trump’s behest, attempted to force Children’s National Hospital in D.C. to turn over medical records related to gender-affirming care, U.S. District Judge Julie R. Rubin ruled that the effort “appears to have no purpose other than to intimidate and harass.”

Blanche is also described as having a “strong belief in executive authority.”

Markwayne Mullin

Secretary of Homeland Security

While Blanche’s record is defined more by recent actions than a long paper trail, Markwayne Mullin brings a more established history on LGBTQ issues from his time in Congress.

The head of the Department of Homeland Security has served in Congress since 2013, in both the U.S. House of Representatives and U.S. Senate. He has been actively engaged in shaping restrictions and aligns with broader cultural rhetoric that frames anti-LGBTQ speech as protected expression.

In May 2016, Mullin criticized the Department of Education and the Justice Department’s “Dear Colleague” letter on transgender students, arguing that trans girls should not use girls’ restrooms in public schools.

By January 2021, Mullin and then-Hawaii Congresswoman Tulsi Gabbard had introduced a bill to prevent trans women from participating in women’s sports.

Mullin was not recorded as voting on the final passage of the Respect for Marriage Act, which codified federal recognition of same-sex and interracial marriage.

In 2023, Mullin received a rating of just 6 percent from the Human Rights Campaign.

While serving in the Senate and as a member of the Health, Education, Labor, and Pensions (HELP) Committee, Mullin has been a vocal critic of policies aimed at expanding LGBTQ inclusion in federal programs. He has participated in broader Republican efforts questioning equity-based implementation of the Older Americans Act, including guidance related to sexual orientation and gender identity in aging services, arguing such policies could have unintended consequences.

Mullin also makes history as the first Native American — and a citizen of the Cherokee Nation — to lead the Department of Homeland Security.

He was among the 147 Republicans who voted to overturn the 2020 presidential election results despite no evidence of widespread fraud, and was present in the House on Jan. 6.

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District of Columbia

Whitman-Walker Health to present ‘Pro Bono Excellence’ award to law firm

Health center set to celebrate 40th anniversary of legal services program

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Whitman-Walker Health’s Pro Bono Excellence award is named for Dale Edwin Sanders. (Photo courtesy of the family)

Whitman-Walker Health, the D.C.-based community healthcare center that specializes in HIV/AIDS and LGBTQ-related health services, announced it will present its annual Dale Edwin Sanders Award for Pro Bono Excellence to the international law firm McDermott Will & Schulte at a May 6 ceremony.

“This year’s award is especially significant as it coincides with the 40th anniversary of Whitman-Walker Health’s Legal Services Program, marking it as the nation’s longest running medical-legal partnership,” a statement released by Whitman-Walker says.

“As a national leader in public health, Whitman-Walker celebrates our partnership with McDermott to strengthen the health center and to enable Whitman-Walker to reach more medical and legal clients,” the statement adds.

“McDermott’s firm-wide commitment to Whitman-Walker’s medical-legal partnership demonstrates a shared vision to serve those most in need,” Amy Nelson, Whitman-Walker’s director of Legal Services, says in the statement. “Our work protects individuals and families who face discrimination and hostility as they navigate increasingly complex administrative  systems,” Nelson said.

“Pro bono legal services – like that of McDermott Will & Schulte – find solutions for people who have no place else to turn in the face of financial and health threats,” she added.

“Our partnership with Whitman-Walker Health is a treasured commitment to serving our neighbors and communities,” Steven Schnelle, one of the law firm’s partners said in the statement. “We are deeply moved by Whitman-Walker’s unwavering dedication to inclusion, respect, and equitable access to health care and social services,” he said.

The statement notes that the award for Pro Bono Excellence honors the legacy of the late gay attorney Dale Edwin Sanders. It says Sanders’s pro bono legal work for Whitman-Walker clients “shaped HIV/AIDS law for more than four decades by securing key victories on behalf of individuals whose employment and patient rights were violated.”

It says the Whitman-Walker Legal Services program began during the early years of the AIDS epidemic in the 1980s at a time when people with AIDS faced widespread discrimination and often needed legal assistance. According to the statement, the program evolved over the years and expanded to advocate for transgender people and immigrants.

Whitman-Walker spokesperson Lisa Amore said the presentation of the Dale Edwin Sanders Pro Bono Excellency Award will be held at the May 6 fundraising benefit for Whitman-Walker’s Legal Services Program. She said the event will take place at the offices of the DC law firm Baker McKenzie and ticket availability can be accessed here: https://www.whitman-walker.org/gtem-2026/

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