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My set-up is from this Washington Post story on the oral arguments:

Paul D. Clement, representing Republican House leaders who are defending the law, said Congress was not discriminating but simply staying out of experiments by the states on same-sex marriage.

The law does not punish states that allow such unions, he said, but simply lets the federal government decide how it wants to allocate its benefits.

Remember this:  DOMA denied the recognition of same-sex marriage under more than 1,000 Federal laws.

Clement is arguing that if states want to experiment with the terms of marriage, the Federal government should not be required to grant recognition to what they did.

Now let me take you back to 1967, to just before Loving v. Virginia overturned bans on interracial marriage.  16 states had such bans, and some, like Virginia, attempted to criminalize an interracial couple from living together as man and wife even though they ha been legally married in another jurisdiction.

What was NOT in question, for Robert and Mildred Loving, or for any other interracial couple at the time, before the Supreme Court decided in their favor, was that in the eyes of the Federal Government and all applicable laws and procedures, their marriage was recognized, for tax or any other purpose.

I have not read the transcript of the oral arguments, but i have to wonder what Paul Clement was not challenged with this, why the Justices having any doubt the constitutionality of that section of DOMA did not have this put on the record, publicly.

In fact, why was Clement not challenged to cite a single example of where prior to DOMA a marriage granted by a state was NOT recognized by the Federal government?

UPDATE to clarify - what i wanted is to have Clement provide an example of a statutory bar to recognizing a marriage legally contracted by a state.  Justice Kagan made a general statement. I wanted the specific citation of pre-Loving on interracial followed by a challenge to Clement.  Having that on the record would really have put some of the wavering Justices on the spot.

I am not a lawyer.

But to me this seems basic.

As Rachel used to say, anyone want to talk me down?

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Comment Preferences

  •  Tip Jar (18+ / 0-)

    "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

    by teacherken on Wed Mar 27, 2013 at 06:11:23 PM PDT

  •  I suspect that immigration cases would be (4+ / 0-)

    an example of feds not recognizing a state marriage.

    Two people get married so that one can stay in the US.  The state they are in recognizes the marriage but the feds come  in and say the marriage is a sham to get a green card.

    (I assume this happens.  I don't know of any particular case).

    •  the issue for Clement would be to cite a statute (2+ / 0-)
      Recommended by:
      Ree Zen, sfbob

      and then demonstrate why that is not a violation of equal protection, which by the way has been applied to the Federal government since Bolling v Sharpe in 1954

      "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

      by teacherken on Wed Mar 27, 2013 at 06:20:14 PM PDT

      [ Parent ]

      •  Well, you asked (2+ / 0-)
        Recommended by:
        blue aardvark, Clem Yeobright
        why was Clement not challenged to cite a single example of where prior to DOMA a marriage granted by a state was NOT recognized by the Federal government?
        and I think I provided one.

        I don't know if there's a statute that gives immigration authorities the right to determine who is married for these purposes or whether it is just regulations.

        •  individual cases of possible fraud (4+ / 0-)
          Recommended by:
          blue aardvark, Ree Zen, tofumagoo, sfbob

          are very different than excluding an entire class by law, which is the issue that was before the Court today

          "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

          by teacherken on Wed Mar 27, 2013 at 06:26:06 PM PDT

          [ Parent ]

          •  Of course. (0+ / 0-)

            But that wasn't what you asked for.

          •  funny, this exchange is uncannily similar to a (5+ / 0-)

            passage in the federalism / Randy Barnett amicus brief.:

            DOMA’s sweeping language differs markedly from the handful of federal statutes that choose to exclude from a federal benefit some relationships that state law might respect. Compare, for example, the immigration antifraud provision. Although that statute prohibits conferring resident-alien status based on marriages that were “entered into for the purpose of procuring an alien’s admission as an immigrant,” 8 U.S.C. § 1186a(b)(1)(A)(i), it does not redefine marriage as DOMA does. It simply says that otherwise married couples cannot qualify for this particular benefit.... DOMA reads differently because it was never designed to serve a particular federal objective. It was deliberately drafted to express Congress’s policy judgment rejecting same-sex marriage—that is why it is called the “Defense of Marriage Act.”
            You've both anticipated the sophisticated objections and the counterarguments made by some of the sharpest scholars in the country.  pretty impressive.
        •  What I'd argue is that the whole immigration (0+ / 0-)

          regime is un-Constitutional since it seeks to apply U.S. law to individuals who aren't even within its jurisdiction and only, perhaps, thinking about coming here and settling on a permanent basis. Moreover, if they have enough money to sustain them without earning more, they can stay as long as they like. Persons are being treated differently before and after they arrive.
          The invention of the nation state has not prevented territories from being invaded; it does fairly well prevent individuals from migrating as they please.
          Importing people on the basis of their skill set is demeaning. It is treating people like things to be exploited for their usefulness.
          Immigration is a can of worms the lawyers do not want to open up in another context.

          We organize governments to deliver services and prevent abuse.

          by hannah on Thu Mar 28, 2013 at 01:58:44 AM PDT

          [ Parent ]

  •  It did come up I think (3+ / 0-)
    Recommended by:
    blue aardvark, MJB, skrekk

    Justice Kagan...

    Mr. Clement, for the most part and historically, the only uniformity that the Federal Government has pursued is that it’s uniformly recognized the marriages that are recognized by the State.

    We were not ahead of our time, we led the way to our time.

    by i understand on Wed Mar 27, 2013 at 06:28:00 PM PDT

  •  Federal law is superior to state law (0+ / 0-)

    So the Feds don't have to recognize state laws as valid, but states do have to recognize Federal laws as valid. So the Federal government recognizing the Loving's marriage as valid should have trumped Virginia law, but didn't, because marriage is traditionally left to the states?

    I'm confusing even myself here.

    Economics is a social *science*. Can we base future economic decisions on math?

    by blue aardvark on Wed Mar 27, 2013 at 06:31:39 PM PDT

    •  yes but there is a federalism issue (1+ / 0-)
      Recommended by:
      blue aardvark

      because marriage has been a state prerogative.  Thus even if Justices in the Prop 8 choose to deal with California in isolation and not rule more broadly on whether there is an equal protection argument to require marriage equality the way there was an equal protection argument to require allowing and recognizing interracial marriage in Loving, the absence of any prior such federal legislation barring Federal recognition of a class of marriages even when there were severe differences among the states makes clear the discriminatory nature of DOMA, as well as the fact that the Congress taking such an action is unprecedented, and thus on its face quite possibly an unconstitutional intrusion into the prerogatives of states.

      "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

      by teacherken on Wed Mar 27, 2013 at 06:35:51 PM PDT

      [ Parent ]

      •  I think DOMA is going down (3+ / 0-)
        Recommended by:
        Odysseus, Cassandra Waites, MJB

        It will be very hard for the Supremes (other than Thomas and Scalia and Alito) to argue that the USG has a compelling interesting in singling out gay marriages as deserving special Federal legislation.

        Economics is a social *science*. Can we base future economic decisions on math?

        by blue aardvark on Wed Mar 27, 2013 at 06:47:32 PM PDT

        [ Parent ]

        •  DOMA is toast, but what about Prop 8? (1+ / 0-)
          Recommended by:
          blue aardvark

          Tom Goldstein at SCOTUSblog nicely summed up the dilemma for the Dem appointees plus Kennedy:

          But if DOMA is going to be decided as a federalism case, Hollingsworth becomes a much harder case for the plaintiffs. That ruling in Windsor implies that California should have a parallel right to decide the definition of marriage for itself – i.e., that Proposition 8 should be upheld.

          In fact, there is a realistic chance that the Court’s most conservative Justices understood that dynamic from the beginning and for that reason voted to grant certiorari in Hollinsgworth. In effect, they would put the Court in the box fully grappling with the implications of a ruling invalidating DOMA. To then also invalidate Proposition 8, the Court would have to go quite far in applying heightened scrutiny and invalidating the traditional definition of marriage, notwithstanding its professed concerns for states’ rights.

          So the project for Justice Kennedy and the Court’s left seemingly is how to escape the dilemma that Hollingsworth is before them for decision. It is hard to “disappear” a granted case. The more liberal Justices presumably represent four votes to invalidate at least Proposition 8 on equal protection grounds. But four votes get you nothing at the Supreme Court, and Justice Kennedy expressed deep concern at making such a significant ruling at this time. All likely realize that history is on the side of gay-rights advocates, but they disagree significantly on whether that is the same thing as a constitutional mandate, at least at this time.

          I suggested one way out of the Hollingsworth box yesterday – remand the case for further consideration in light of the ruling in Windsor. Much would depend on what the Court said in invalidating DOMA. Another option is to hold that the Hollingsworth petitioners lack standing to appeal. It will be fascinating to see what they do.

          Please help to fight hunger with a donation to Feeding America.

          by MJB on Wed Mar 27, 2013 at 09:56:16 PM PDT

          [ Parent ]

          •  The real issue is whether agents of government, (1+ / 0-)
            Recommended by:
            blue aardvark

            which is what the Congress is, merely an agent of those who govern, i.e. the people, -- whether agents of government can coerce or deny good behavior, or are restricted to stopping and punishing bad behavior.
            Individuals committing to mutual support is good behavior. The only justification for granting registration is for the convenience of agents of government knowing who's committed to being responsible for whom. It is because it is a convenience to have official registration that various benefits are provided to encourage both the behavior and the registration. Thus, to deny the equal treatment is an unwarranted segregation and deprivation.
            Some segregation is warranted. People with infectuous diseases are properly segregated to protect the community and promote their cure.

            We organize governments to deliver services and prevent abuse.

            by hannah on Thu Mar 28, 2013 at 02:10:53 AM PDT

            [ Parent ]

          •  but if 5 Justices rule lack of standing (2+ / 0-)
            Recommended by:
            blue aardvark, MJB

            then Prop 8 remains struck down based on decisions in both District and Circuit courts, and same sex marriage in CA is reinstated

            "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

            by teacherken on Thu Mar 28, 2013 at 05:12:18 AM PDT

            [ Parent ]

            •  I think that's the approach they'll take (0+ / 0-)

              You can't always tell based on questions at oral argument -- and the Obamacare cases are a good example of that -- but I think that's right. The SCOTUS will invalidate Section 3 of DOMA by a 5-4 or 6-3 vote, and they'll punt on Hollingsworth for lack of standing.

              I don't think they can go with Goldstein's suggestion to remand Hollingsworth to the 9th Circuit in light of Windsor, because it's unlikely that the SCOTUS' Windsor opinion will contain any meaningful guidance on how to decide cases like Hollingsworth. Kennedy and/or Roberts are not going to allow Windsor to be decided on the ground that DOMA discriminates on the basis of sexual preference. They are going to require that the decision be based on a holding that the federal government cannot refuse to recognize a marriage that is lawful in the state or country in which it was performed.  (They can't limit it to states only, because Edie Windsor and her spouse were married in Canada.)

              Please help to fight hunger with a donation to Feeding America.

              by MJB on Thu Mar 28, 2013 at 09:45:12 AM PDT

              [ Parent ]

              •  re Canada (0+ / 0-)

                even though the marriage in the case was done outside the country, if in fact they took a married deduction or advantage of any other marriage benefit under NY State law, does not that serve for the purposes of the jurisprudence relevant to this case?  New York State accepted the marriage as valid, even though it was performed outside of NY State.

                "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

                by teacherken on Thu Mar 28, 2013 at 01:48:44 PM PDT

                [ Parent ]

                •  It's tricky (0+ / 0-)

                  ... but I think the issue is whether the feds are permitted under the constitution to recognize certain marriages that are legal in the jurisdiction where they were performed but not other marriages that are also legal in that jurisdiction. In other words, whether the feds are permitted to discriminate against couples in same-sex marriages.

                  Your idea is that it's up to New York, not the feds, to decide whether to recognize marriages from other jurisdictions and the IRS has to defer to what New York decides.  And maybe that's the way it will go.

                  But, as Erwin Chemerinsky points out here, that would be a great departure from existing precedent:

                  At the argument on Section 3 of DOMA, Justice Kennedy expressed great doubts about the constitutionality of this provision based on federalism concerns.   He emphasized that marriage is something traditionally regulated by the states.   This seems to be an argument based on the Tenth Amendment and the idea that that provision reserves to the states exclusive control over certain matters.

                  But not once since 1937 has the Supreme Court endorsed that view.   Since 1937, the Court only has found Tenth Amendment violations where Congress has commandeered states and forced them to enact laws or adopt regulations.   DOMA does not do that.  For the Court to hold that the Tenth Amendment leaves some matters, like marriage, exclusively to the states would be a radical change in constitutional law.

                  http://www.scotusblog.com/...

                  An easy out, but certainly possible, would be a judgment invalidating DOMA Section 3 but with no majority opinion and a few individual opinions that agree on invalidating the statute but not on the reasons why it is unconstitutional.

                  Please help to fight hunger with a donation to Feeding America.

                  by MJB on Fri Mar 29, 2013 at 10:17:10 PM PDT

                  [ Parent ]

  •  An older lawyer once told me (9+ / 0-)

    when I was brand-new, that there are always three arguments: The one you planned, the one you actually gave, and the one you give in the car on the way home.

    I suspect the same may be true of questions the judges ask. Not every question that could possibly be asked gets asked and answered. (SCOTUS used to let arguments go on for days, but now there are strict time limits.)

    The more interesting answer: Could the US government, say sometime before 1967, have had a law saying that the federal government would not recognize interracial marriages as valid, even where the state government did? There wasn't such a federal law, as far as I know. But then, the federal government didn't have as many social welfare programs where it cared who was married -- veterans' pensions were about the only ones.

    So yes, the Federal government recognized the Lovings' marriage even when Virginia did not. But it may not have been required to do so -- until 1967, and then only because the Court said so.

    •  marriage has traditionally been state function (1+ / 0-)
      Recommended by:
      Odysseus

      as has education

      thus if the Federal government is going to issue a statute, on what basis or authority is it claiming the right to do so?  Can those supporting the statute cite either a precedent or a specific constitutional authority?  If not, and it the precedents seem very much contrary, as the pre-Loving example demonstrates, and further the legislation is aimed only a a particular class of marriages, is not there a presumption both of an equal protection violation and a federal intrusion outside the bounds of Federalism?

      "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

      by teacherken on Wed Mar 27, 2013 at 06:43:09 PM PDT

      [ Parent ]

      •  Marriage is not a function. It is a mutual (0+ / 0-)

        commitment by two individuals of a certain age--i.e. old enough to carry out obligations.
        The state merely carries out a ministerial function in making a public record of this private event. The state has nothing to do with the establishment of a marriage.
        There is a difference between being and recognition.

        We organize governments to deliver services and prevent abuse.

        by hannah on Thu Mar 28, 2013 at 02:16:18 AM PDT

        [ Parent ]

    •  Scalia answered your question yesterday (0+ / 0-)
      Could the US government, say sometime before 1967, have had a law saying that the federal government would not recognize interracial marriages as valid, even where the state government did?
      There was an exchange in Tuesday's oral argument between Justice Scalia and Ted Olson (attorney for the plaintiffs fighting against Prop 8):
      JUSTICE SCALIA: ... when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?Sometimes -- some time after Baker, where we said it didn't even raise a substantial Federal question? When -- when -- when did the law become this?

      MR. OLSON: When -- may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages?When did it become unconstitutional to assign children to separate schools.

      JUSTICE SCALIA: It's an easy question, I think, for that one. At -- at the time that the Equal Protection Clause was adopted. That's absolutely true. But don't give me a question to my question.

      Scalia's answer is that the EPC made it unconstitutional when the 14th Amendment was adopted in 1868 (even though the SCOTUS didn't decide Loving until 1967).

      Scalia's implicit argument is that those who enacted the 14th Amendment intended to ensure equal protection on the basis of race, but never even thought of equal protection on the basis of sexual preference, thus (in Scalia's eyes) the constitution doesn't mandate equal treatment for gays and lesbians.

      It's a repulsive argument, in my view, but it's Scalia's argument.

      Please help to fight hunger with a donation to Feeding America.

      by MJB on Wed Mar 27, 2013 at 10:13:25 PM PDT

      [ Parent ]

      •  I really wish Olson had said something like this: (1+ / 0-)
        Recommended by:
        teacherken
        I believe you recognized that in your 2003 dissent in Lawrence v Texas, where you acknowledged that if Lawrence stood as precedent there could be no rational basis for a state to prohibit same-sex marriage.

        With mixed-race marriage it took the court 100 years to recognize that mixed-race couples had a 14th Amendment right to marry.   Hopefully the court will act with greater alacrity this time to correct a clear violation of equal protection.

        •  That's a good point, but... (1+ / 0-)
          Recommended by:
          skrekk

          ... remember that, at the oral argument, Olson is not trying to win a debate with Scalia.  Olson's task is only to try to persuade at least 5 justices (and Scalia will never be among that group) to do the right thing in Hollingsworth.

          Please help to fight hunger with a donation to Feeding America.

          by MJB on Thu Mar 28, 2013 at 09:50:08 AM PDT

          [ Parent ]

      •  Cons see the world in terms of the thing (0+ / 0-)

        acted upon (the object), rather than in terms of the agent (subject). The issue here isn't who's affected, but that our public servants are not supposed to determine the level of service based on some irrelevant characteristics of the recipients of their ministrations.
        The Cons see public corporations as entities that are superior to the citizenry (who are superior to non-citizens) because they are convinced that a heirarchy of authority is absolutely essention to society -- that, if there is not some ruling elite directing the affairs of man, there will be utter chaos. That the Constitution is like a cook book or operational manual designed to direct the behavior of the agents of government just doesn't register with them. Their prejudice tells them that governments are established to rule, not to deliver services to the public. If they even think of public service, it's in the context of coercing good behavior being good for the coerced -- at least to the extent of freeing them from the deficiencies of original sin by secular means.
        The Cons have convinced themselves that agents of government step in where religion has failed to impose restraints. Where do the agents get authority to do that? The Constitution gives it to them because, long ago, people gave their consent to be submissive to the end of time. The nation is a secular version of the kingdom of God.

        We organize governments to deliver services and prevent abuse.

        by hannah on Thu Mar 28, 2013 at 02:30:49 AM PDT

        [ Parent ]

  •  not sure I follow. (0+ / 0-)

    fed law followed state law, so the feds wouldn't have recognized the Livings' marriage prior to the SCOTUS decision.

  •  The issue of all 1100+ Federal laws (1+ / 0-)
    Recommended by:
    sfbob

    concerning marriage benefits and responsibilities was raised.

    From the transcript of oral arguments:

    …whether or not if Congress has the power it can exercise it for the reason that it wants, that it likes some marriage it does like, I suppose that it can do that. But when it has eleven hundred laws, which in our society means that the Federal government is intertwined with the citizens' day-to-day life, you are at a real risk of rinning in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody.
    "State police power" here has nothing to do with police forces, but with definitions of government authority.

    Justice Sotomayor took up the same point later, referring to Kennedy's statement, and Kennedy returned to it.

    Ceterem censeo, gerrymandra delenda est

    by Mokurai on Wed Mar 27, 2013 at 07:49:38 PM PDT

    •  I was not suggesting this wasn't raised (0+ / 0-)

      I was focusing on a different issue - is there any precedent for the federal government by statute refusing to recognize a marriage granted by a state even if, as in the case of Loving v Virginia, some states did not under full faith and credit recognize that marriage (as they should have)?

      "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

      by teacherken on Wed Mar 27, 2013 at 07:57:07 PM PDT

      [ Parent ]

  •  Take age limitations. (3+ / 0-)
    Recommended by:
    teacherken, arlandbaee, MJB

    Different states have different laws surrounding the [lower] age at which persons may be married. But even if you are 14 and married in one state, and then move to a state where 18 is the earliest, the state with the higher age requirement has to accept that you are married because the state you were married in sanctioned it. Your marriage isn't invalidated because you are too young.

    And this was a common occurrence.

    •  By the same token (0+ / 0-)

      In the new state statuatory rape laws STILL apply, so even if they acknowledge the marriage, they can still prosecute for statuatory rape.

      Minority rights should never be subject to majority vote.

      by lostboyjim on Wed Mar 27, 2013 at 09:01:01 PM PDT

      [ Parent ]

      •  nope - does not apply within recognized marriage (0+ / 0-)

        albeit usually because in many states traditionally a woman could not say no to her husband while living under the same roof

        "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

        by teacherken on Thu Mar 28, 2013 at 05:14:21 AM PDT

        [ Parent ]

    •  Great point. (0+ / 0-)

      Adding the fact that in many states, judicial consent can overrule the state's age of consent laws.

    •  The issue is not marriage, but recognition. (0+ / 0-)

      Whether or not age is related to the maturity required to assume and carry out obligations is questionable. Some people, apparently, never become mature enough to be responsible for their own welfare, never mind someone else's.

      We organize governments to deliver services and prevent abuse.

      by hannah on Thu Mar 28, 2013 at 03:48:08 AM PDT

      [ Parent ]

  •  DOMA was enacted to circumvent the 14th (0+ / 0-)

    amendment.  Just look at the time line of every State law against gay marriage.  Nearly all of them have adopted DOMA as their state law.  Without DOMA no state could have gotten away with laws against gay marriage.

    Every lawyer and judge in that courtroom understands that.  Trying to argue the case doesn't make sense.  I can't imagine being a judge having to listen to anyone trying to defend DOMA as constitutional.  

    I can't imagine trying to defend DOMA either.  It's all for show.  If the SCOTUS upholds DOMA, then the constitution really means nothing to these judges.

    Trying to make sense of this is simply crazy.

  •  It is helpful to remember that the Cons almost (0+ / 0-)

    always have ulterior motives. Their issues are almost never about what they seem to be about. So, in this case, whether married persons are entitled to equal treatment, regardless of the gender of the partners, is really a subterfuge for the Congressional prerogative to distribute benefits and rights and penalties in the interest of promoting the longevity of incumbents in office. Can Congress allocate resources to advantage special interests and constituencies, or not? That is the question.

    In the case of matrimonial benefits and rights, the Congress employed its legislative powers to "reward" a particular religious perspective by depriving individuals, who are out of compliance with that religious perspective, of material benefits extended to those who comply.

    Congress has become particularly adept at showing favoritism to particular constituencies by visiting deprivation on the opponents of those constituencies. Depriving labor unions of standing in the courts is another example of Congress showing favoritism indirectly to corporations from whose coffers they expect campaign contributions.

    Congress has turned "the enemy of my enemy is my friend" around to read, "the enemy of my friend is my enemy" in the interest of incumbency.
    Showing favoritism by imposing deprivation is, of course, not a new tactic. It's what the 3/5 compromise did in depriving one population of human rights and providing property owners with additional political influence. Assigning costs to one party and benefits to another has a long tradition.

    Perhaps the binary model leads to this pattern, which is essentially triangular, being overlooked. Perhaps it is a matter of the action taking place in the space where the two parts intersect/interact -- the nexus or, if we're considering the economy, the market or venue of the middlemen.

    If Congress can't discriminate in the interest of securing the tenure of its members, then that's a serious blow to the Cons. Authority would have to be based on competence, rather than the power to distribute punishments and rewards. Moreover, if no population can be singled out to serve as an example, then deprivation will have to be enforced across the board. Which, of course, is what the sequester is about. The electorate has misbehaved (how else to categorize 160 freshmen in the House in two elections?) and must be punished until behavior improves.

    We organize governments to deliver services and prevent abuse.

    by hannah on Thu Mar 28, 2013 at 03:43:48 AM PDT

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