About that En Banc Argument in the LA Birth Certificate Case

Last week I posted (yet again) about Adar v. Smith, the Fifth Circuit case where a gay male couple who adopted a child from Louisiana are trying to get a new birth certificate.   (There are a whole series of posts here tracing the history of the case thus far.)   It was the eve of an en banc oral argument in the case and I promised I’d provide more after the argument.  But then I couldn’t find anything except the most cursory accounts of the argument–stories that said nothing more than that the case was argued. 

Then someone sent me a link the transcript of the  argument.   I put it on my list of things to do, but at this point in the semester, there’s no telling when it might come to the top.  

Now imagine my satisfaction in discovering that Professor Nancy Polikoff has done the work and analyzed the argument.   I won’t even attempt a paraphrase.  Suffice it to say the argument was quite technical and if you want more detail you can read Professor Polikoff’s analysis. 

I will, however, offer one observation.   In defending its refusal to issue the birth certificate the state relied on technical arguments about standing and the like.  There’s nothing wrong with making technical arguments, really.    But it is striking to me that it sounds like the state offered those instead of rather than along side of arguments on the underlying issue.  In other words, the state didn’t argue the core issues that really occupy the public sphere:  Should lesbians and gay men be permitted to adopt?  If so, should they only be allowed to adopt singly rather than jointly?   What’s best for the kids in these cases or even kids more generally? 

What does it mean that the state doesn’t make those arguments in court and instead relies on standing?   Is it a sign of the times?   Is it another instance where the specific case of this child is too hard to resist and so the state wants to reframe the question?   Makes me wonder is all.

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