I’m not going to try to cover the flood of commentary on yesterday’s Sixth Circuit ruling in favor of state marriage laws, but I would like to highlight two pieces I’ve run across from pro-SSM supporters.

On the Volokh Conspiracy, law professor Dale Carpenter writes:

[T]he Sixth Circuit decision ensures the Justices will have before them at least one well-written and reasoned opinion against constitutionalizing the issue of same-sex marriage. After dutifully arguing for four pages that he was bound by the ancient one-line decision from the Supreme Court in Baker v. Nelson, Judge Sutton nevertheless used the next 25 pages of his opinion to address the merits. He was right to do so. And he was right to focus on the many post-1972 changes in doctrine that might affect the outcome.

In an essay for Bloomberg, law professor Noah Feldman observes that Judge Sutton’s opinion

is grounded in a theory of judicial restraint — and not even judicial restraint generally, but a very modest theory of judicial restraint appropriate to appellate courts that are subordinate to Supreme Court precedent. [Emphasis added.]

Feldman goes on, curiously, to argue that the general rule that “appellate courts should follow the Supreme Court when its doctrine is clear” somehow doesn’t apply when “the country and the Supreme Court [are] in the midst of an epochal change in our thinking about a crucial moral question such as equality.” I don’t think that’s a defensible or coherent exception, but I do think it captures what underlies the lawlessness of lots of lower-court judges in marriage cases.