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Old 02-24-2011, 04:29 PM   #1 (permalink)
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DOJ won't defend constitutionality of DOMA; conservatives vow to make it 2012 issue

In a clear change of course, Obama has instructed the Department of Justice against defending the Defense of Marriage Act (DOMA) in court on constitutional grounds.

Quote:
U.S. reversal on gay unions won't affect married couples for now

By Jerry Markon
Washington Post Staff Writer
Thursday, February 24, 2011; 6:21 PM

For the nation's estimated 80,000 legally married same-sex couples, the Obama adminstration's decision to stop defending the federal law that bans the recognition of gay marriage will have little immediate effect.

Lawyers and gay rights activists said Thursday that the administration's announcement was one step - albeit an important one - in a battle over the law's constitutionality that is likely to play out in the federal courts over the next several years.

The Justice Department on Wednesday said it would no longer go to court to oppose challenges to the 1996 Defense of Marriage Act, which defines marriage as between a man and a woman and denies marriage-based federal benefits to same-sex married couples. The administration said it no longer considers the law constitutional.

The decision drew outrage from Republicans and applause from gay rights activists, who have won a series of political victories. But underlying the euphoria was a recognition that nothing had changed for same-sex married couples who say the law discriminates against them, and that the U.S. Supreme Court is likely to have the last word.

"There's going to be at least a couple of years of litigation over this, and sooner or later the Supreme Court is going to have to weigh in,'' said Darren Rosenblum, a professor at Pace Law School in New York and an expert on gay and lesbian rights.

While legal experts differed on whether the law is constitutional, they said the Justice Department's change of position will have a major impact on appellate courts that consider the issue. As the government's lawyer, the department is generally given significent weight in constitutional cases.
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"This is the executive branch saying to the judicial branch that we believe the law is unconstitional. Courts will pay a lot of attention to that,'' said Jon Davidson, legal director for Lambda Legal, which fights for gay and lesbian rights.

The Defense of Marriage Act states that for federal purposes, "the word 'marriage' means only a legal union between one man and one woman as husband and wife.'' Gay couples can legally marry in five states and the District. But the federal law means that legally wed same-sex couples are denied an array of benefits available to heterosexual couples. Those include the ability to file joint federal tax returns, to be exempt from certain federal taxes and to have a spouse who is an immigrant legally remain in the United States.

Six challenges to the Defense of Marriage Act are working their way through federal courts, including in Massachusetts, where a judge in July struck down the law. The Justice Department had appealed that decision.

Officials said the department will now advise courts that it will no longer defend the law. Members of Congress can mount a defense, and opponents of same-sex marriage have called on House Speaker John A. Boehner (R-Ohio) to intervene.

A spokesman for Boehner declined to comment Thursday.

But even if Congress doesn't officially step in, lawyers said they expect that the Massachussetts case and others will still be decided by appellate courts that can weigh briefs filed by same-sex marriage opponents.

The new legal battle began Thursday in California, where a judge in one of the cases challenging the federal marriage law ordered the government to explain how its change of position affects the case. The suit was filed on behalf of a federal employee who was denied health benefits for her legal spouse. The Justice Department has until March 7 to respond.
U.S. reversal on gay unions won't affect married couples for now

This doesn't immediately mean much other than perhaps a step into a direction that proponents of gay marriage have hoped to see.

What do you think?
Is this a step towards the legalization of gay marriage?
Is this a shallow gesture, perhaps Obama's way to getting ready for the next election?

Then there's this:

Quote:
Conservatives vow to make gay marriage 2012 issue

By DAVID CRARY and LISA LEFF
The Associated Press
Thursday, February 24, 2011; 5:02 PM

NEW YORK -- Angered conservatives are vowing to make same-sex marriage a front-burner election issue, nationally and in the states, following the Obama administration's announcement that it will no longer defend the federal law denying recognition to gay married couples.

"The ripple effect nationwide will be to galvanize supporters of marriage," said staff counsel Jim Campbell of Alliance Defense Fund, a conservative legal group.

On the federal level, opponents of same-sex marriage urged Republican leaders in the House of Representatives to intervene on their own to defend the 1996 Defense of Marriage Act, or DOMA, against pending court challenges.

"The president has thrown down the gauntlet, challenging Congress," said Tony Perkins of the Family Research Council. "It is incumbent upon the Republican leadership to respond by intervening to defend DOMA, or they will become complicit in the president's neglect of duty."

Conservatives also said they would now expect the eventual 2012 GOP presidential nominee to highlight the marriage debate as part of a challenge to Obama, putting the issue on equal footing with the economy.

Gay rights activists welcomed Wednesday's announcement from the Justice Department, sensing that it would bolster the prospects for same-sex marriage in the courts. Among Democrats in Congress, there was praise for Obama's decision and talk of proposing legislation to repeal the law altogether.

"I opposed the Defense of Marriage Act in 1996. It was the wrong law then; it is the wrong law now," said Sen. Diane Feinstein, D-Calif. "My own belief is that when two people love each other and enter the contract of marriage, the federal government should honor that."

On the state level, there were swift repercussions.

In Rhode Island, the Roman Catholic bishop of Providence, Thomas Tobin, said Thursday that his diocese would "redouble its efforts' to defeat a pending same-sex marriage bill in response to the announcement. In Iowa, conservative activist Bob Vander Plaats said the DOMA decision would invigorate a campaign to repeal the state's court-ordered same-sex marriage law.

"This gives us more credibility than ever with this issue," said Vander Plaats, who wants to topple the Democratic leadership in the state Senate that is blocking efforts to put a same-sex marriage repeal proposal on the ballot.

[...]
Conservatives vow to make gay marriage 2012 issue

This is interesting. It is perhaps the case that gay rights could very well be one of the battlegrounds in 2012.

I think 2012 will be very interesting. There will certainly be a heated battle on a number of fronts. It will be a battle of both economic and social ideology.

Does anyone else feel a storm brewing?
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Old 02-24-2011, 04:59 PM   #2 (permalink)
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Wow. Obama has really stuck his neck out on this one.

I personally applaud this, but true to form, Obama will be held democratically accountable if the majority of Americans don't approve.
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Old 02-24-2011, 04:59 PM   #3 (permalink)
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Well, at this rate, the GOP won't be able to run on the promise of job creation, since they haven't really done anything to work toward that goal and it doesn't seem all that likely that they will make any substantive improvements to the job market.

Good for them. They do well with wedge issues.
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Old 02-24-2011, 05:34 PM   #4 (permalink)
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Good for Obama. While his international policy is disasterous and his economic policies are worse, at least his presidency has been able to correct some shameful discrimination. This is long overdue.
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Old 02-24-2011, 06:13 PM   #5 (permalink)
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Originally Posted by Cimarron29414 View Post
While his international policy is disasterous...
Except for not closing Gitmo and still spending way too much on the wars, I don't see how his policies would be considered disastrous. I can at least travel overseas now and get accepted as an American.


But, back to the OP, do conservatives think that their will be less gay sex if they ban gay marriage?

I'm also wondering if the gay democrats are supporting the unions, universal healthcare, environment, and other sections of the democratic base?
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Old 02-25-2011, 04:45 AM   #6 (permalink)
 
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this is long overdue. it's a good thing, but it's taken a shameful amount of time to happen.

i find it remarkable that there still are conservatives after the bush administration pulverized their ideology by trying to implement it. but beyond that, i can't imagine anyone caring what issues they vow to use in 2012. i rather hope they do cast themselves as the homophobia party. it'll speed them toward a richly deserved irrelevance.
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Old 02-25-2011, 05:38 AM   #7 (permalink)
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I tend to agree with roachboy.

I don't think traditional conservative touchstone (ie, social) issues are going to be as electrifying to the 'middle of the road' voters as they have been in the past. The economic situation is too dire, recent domestic events too alarming. I believe this 'tea party mandate' business is going to backfire on them. Big time. At least it better.
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Old 02-25-2011, 02:54 PM   #8 (permalink)
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Originally Posted by Baraka_Guru View Post
What do you think?
I think we have a President who acts based on keeping track of political points rather than doing what he believes in assuming he has core beliefs.

Bush's position was clear when he ran and he acted in a manner consistent with his views, no surprises and he did not care about the political gains or losses. If Obama believes that there should be no difference in the eye of government between m/f marriage and gay marriage - he should make the case and get it done. I believe he has already strategically planned on when and how he is going to throw his base a bone here and there - if true I find that very offensive and would not want a person like that in the WH even if I agreed with him or her on most issues.
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Old 02-25-2011, 02:58 PM   #9 (permalink)
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I have to wonder what kind of reaction there would be, should another president decide to not enforce some other law, like the machine gun ban?
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Old 02-25-2011, 03:25 PM   #10 (permalink)
 
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Originally Posted by dksuddeth View Post
I have to wonder what kind of reaction there would be, should another president decide to not enforce some other law, like the machine gun ban?
Another discussion where you raise the issue of guns?

Putting that aside, Bush issued hundreds of signing states that, in effect, claimed he could ignore provisions of many laws he signed.
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Old 02-25-2011, 03:33 PM   #11 (permalink)
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Originally Posted by dc_dux View Post
Another discussion where you raise the issue of guns?

Putting that aside, Bush issued hundreds of signing states that, in effect, claimed he could ignore provisions of many laws he signed.
Heck, it doesn't even have to be the POTUS, it can be the Governor or Mayor. There's lots of laws that aren't equally enforced.
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Old 02-25-2011, 03:49 PM   #12 (permalink)
 
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Heck, it doesn't even have to be the POTUS, it can be the Governor or Mayor. There's lots of laws that aren't equally enforced.
It goes to more that just being equally enforced to the point of nullifying the intent of laws.

Many presidents have used signing statements.

In Bush's case, he often used them to disobey the law, or at least disobey the intent of Congress. The worst case was probably the Detainee Treatment Act that limited interrogation techniques of prisoners to those allowed in the Army Field Manual.

He claimed in his signing statement that he had the right as President and Commander in Chief to ignore this provision in order to protect the country from terrorists.

---------- Post added at 06:49 PM ---------- Previous post was at 06:42 PM ----------

Quote:
Mr. Bush’s use of signing statements led to fierce controversy. He frequently used them to declare that provisions in the bills he was signing were unconstitutional constraints on executive power, and that the laws did not need to be enforced or obeyed as written. The laws he challenged included a ban on torture and requirements that Congress be given detailed reports about how the Justice Department was using the counterterrorism powers in the USA Patriot Act.

http://www.nytimes.com/2009/03/10/us...10signing.html
The Detainee Treatment Act said you cant use interrogation techniques other than those in the AFM; when signing the bill, the signing statement that Bush added said, "screw you, i can use enhanced interrogation techniques if I think it it will protect the American people."

The PATRIOT Act required that he regularly inform Congress about how the FBI was using the act's expanded police powers; On signing the bill, Bush added a signing statement that said "no I dont," not when I can claim my national security powers trump your need for reports or Congressional oversight of the FBI.

Claiming "unconstitutional restraints on executive power" to, in effect, nullify key provisions of laws enacted by Congress based on his own (not the Judiciary's) interpretation is a stretch of executive power, IMO.
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Old 02-25-2011, 04:08 PM   #13 (permalink)
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Hmm, taken another way, would you also consider this the executive branch overreaching their power?

For example, that the legislature, representing the will of the people creates laws that specify certain norms. The president, by ignoring these laws, is in essence, abdicating his duty to 'execute' the laws. (I really am talking out of my ass here, but you get my point--failure to enforce the law that has been legitimately passed. For example, a similar parallel may be Southern States refusal to honor the 13th and 14th amendments following the civil war).

Interestingly, Article II and section 3 of the Constitution specifies that the president shall

Quote:
he shall take Care that the Laws be faithfully executed
Of course this, if Obama can make a legitimate constitutional claim, he would claim that he is fulfilling the presidential oath:

Quote:
"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
Interesting.

I of course, like Dksuddeth wish Obama would do something similar for firearms (Machineguns & SBRs for all!) but I doubt that's politically feasible.
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Old 02-25-2011, 04:13 PM   #14 (permalink)
 
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IMO, nullifying provisions of laws (a pro-active approach to ignore provisions of laws you dont like, ie Bush's actions re" Detainee Treatment Act and Patriot ACt) is not the same as not defending laws (if and when the law is challenged in court, ie Obama's intent, re: DOMA).
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Old 02-25-2011, 04:36 PM   #15 (permalink)
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This is a move/a step towards total US recognized gay marriage, but I Obama used this as distractive talking point to get the GOP off of other pressing subjects. Well, i guess we'll see.
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Old 02-25-2011, 04:52 PM   #16 (permalink)
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Another discussion where you raise the issue of guns?
yes, simply because that's the case law subject i know best. If I knew another one as well, I might use it. If necessary, i can refrain from legal discussions here because people are tired of talking about guns and gun laws, if you like.
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Old 02-25-2011, 05:07 PM   #17 (permalink)
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I watched a brief but interesting interview of Mike Huckabee on CNN last night. He's hawking his book in which he strongly reiterates his priority of social issues such as marriage, family and morality over others.

The interviewer pointedly asked him why Americans should care about such issues given the state of the economy and his answer is that the state of the family IS an economic issue. He referred specifically to deadbeat dads and split-families in his explanation rather than gay marriage but you get the idea.

I thought it was a pretty clever spin but I don't think it'll hold much if the real economy is in the crapper.
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Old 02-25-2011, 05:48 PM   #18 (permalink)
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Originally Posted by fresnelly View Post
I watched a brief but interesting interview of Mike Huckabee on CNN last night. He's hawking his book in which he strongly reiterates his priority of social issues such as marriage, family and morality over others.

The interviewer pointedly asked him why Americans should care about such issues given the state of the economy and his answer is that the state of the family IS an economic issue. He referred specifically to deadbeat dads and split-families in his explanation rather than gay marriage but you get the idea.
So shouldn't he support gay marriage, since it's so important?
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Old 02-26-2011, 07:38 AM   #19 (permalink)
 
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ok. now i get it. for conservatives, legalized discrimination against people who choose to love another in a way that conservative incorporated has decided not to approve is a "core belief"?

so being a bigot is fundamental to conservatism?

got it.
thanks, ace.

that makes far more sense to me than the "if doma is unconstitutional let's have machine guns" um.....association? (not really an argument....a non sequitor is still an association....)
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Old 02-26-2011, 09:07 AM   #20 (permalink)
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Let me state for the record, again, that I support the civil unions of two consenting adults in the eyes of the state and I don't care what gender those adults are.

However, after thinking about this a while, I wonder if this is overstepping his Constitutional authority? I believe it is the duty of any President to enforce and defend all the laws of the US, if not explicitly then implicitly. Shouldn't this be corrected through the Legislative branch? Isn't this the Executive branch unilaterally nullifying a law that they don't like?

I think I am supporting this because I agree with him, not because it's the proper thing to do? What if it was a law that I supported and any President simply said, "We aren't going to defend this law in the courts"? I would be pissed! I need to think on this and see if there are precedents for this.
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Old 02-26-2011, 09:15 AM   #21 (permalink)
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Originally Posted by dksuddeth View Post
I have to wonder what kind of reaction there would be, should another president decide to not enforce some other law, like the machine gun ban?
point of order: obama is going to continue to enforce DOMA, he's just no longer going to defend it in court. big difference.
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Old 02-26-2011, 09:16 AM   #22 (permalink)
 
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Originally Posted by Cimarron29414 View Post
.... I believe it is the duty of any President to enforce and defend all the laws of the US, if not explicitly then implicitly. Shouldn't this be corrected through the Legislative branch? Isn't this the Executive branch unilaterally nullifying a law that they don't like?
The Constitution says nothing about the President defending laws, but simply that the president will "take care that the laws be faithfully executed."

Holder said that the DoJ will enforce the law, just no longer take the the lead in defending it in federal court.

Rahl beat me to it.
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Old 02-26-2011, 10:15 AM   #23 (permalink)
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ok. now i get it. for conservatives, legalized discrimination against people who choose to love another in a way that conservative incorporated has decided not to approve is a "core belief"?

so being a bigot is fundamental to conservatism?

got it.
thanks, ace.

that makes far more sense to me than the "if doma is unconstitutional let's have machine guns" um.....association? (not really an argument....a non sequitor is still an association....)
tying together two separate ideas and arguments in to one belief in order to make an argument of 'conservatism is bigotry' makes you look foolish.

my point was simply about the hypocrisy of both liberals and conservatives on what laws they think are constitutional or not and how they would squawk if one of the other weren't enforced.

---------- Post added at 12:15 PM ---------- Previous post was at 12:14 PM ----------

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Originally Posted by rahl View Post
point of order: obama is going to continue to enforce DOMA, he's just no longer going to defend it in court. big difference.
whats the difference?
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Old 02-26-2011, 10:29 AM   #24 (permalink)
 
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Originally Posted by dksuddeth View Post
...

whats the difference?
pro-active vs reactive.

I gave examples earlier that I thought reasonably explained the difference.

Stating that you will not enforce provisions of a law (ie nullify provisions of a law) is pro-active. Stating that you will no longer defend a law in federal court, if or when cases arise in the future is reactive.

---------- Post added at 01:29 PM ---------- Previous post was at 01:24 PM ----------

From Holder's statement:
Quote:
Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law. But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.

Statement of the Attorney General on Litigation Involving the Defense of Marriage Act
Obama is not nullifying Section 3 of DOMA as Bush did with provisions of the Patriot Act and Detainee Treatment Act.
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Old 02-26-2011, 01:40 PM   #25 (permalink)
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I have to wonder what kind of reaction there would be, should another president decide to not enforce some other law, like the machine gun ban?
Obama didn't decide not to uphold a law. A law was ruled unconstitutional and he said he wouldn't challenge that ruling. There is a huge difference.
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Old 02-26-2011, 02:26 PM   #26 (permalink)
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Originally Posted by dksuddeth View Post
[/COLOR]

whats the difference?
DOMA will still be enforced
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Old 02-26-2011, 04:09 PM   #27 (permalink)
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Obama didn't decide not to uphold a law. A law was ruled unconstitutional and he said he wouldn't challenge that ruling. There is a huge difference.
DOMA was ruled unconstitutional?
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Old 02-26-2011, 05:50 PM   #28 (permalink)
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DOMA was ruled unconstitutional?
Actually multiple judges have:

Click to View Search Results for judge rules against DOMA - Google Search judge rules against DOMA - Google Search
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Old 03-04-2011, 03:05 PM   #29 (permalink)
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Obama made me happy that day. It has been a long time since I saw him actually try to defend the people he promised he would.

DOMA is pretty much the same as the old days when black people or women could not vote. It fucking disgusts me that people are willing to say 'I think you are immoral. Less rights for you!'.

Its like when people say zomg we need smaller government and more freedom!! Oh, please make sure gay people can't marry and we don't want any more of those pesky muslims. FREEEEEEEEEEEEEDOOOOOOMMMMM for me and you if you agree with me.

-insert image of self banging head on desk-
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