The Texas Supreme Court has agreed to reconsider a case about whether married gay city employees must be given spousal benefits.
That’s a terrible sign.
The briefs openly urge the court to resist the U.S. Supreme Court’s landmark gay marriage decision by reading it narrowly to say that gay people have a fundamental right to marry but no right to equal benefits.
It’s a legally deceptive argument, which the current justices in Washington would summarily reject.
But it’s dangerous all the same, because it shows that Donald Trump’s election is spurring outright resistance to federal law and precedent.
And the Texas justices, who are elected, have no excuse for agreeing to reconsider the case.
The case, Pidgeon v. Turner, arose from a lawsuit trying to block the benefits that Houston affords to the same-sex spouses of city employees.
The case had no legal chance of success once the U.S. Supreme Court decided Obergefell v. Hodges in 2015.
That decision held both that marriage is a fundamental right and that the equal protection guarantee of the U.S. Constitution requires that it be extended equally to gay and straight couples.
The Texas lower courts rejected the attack on the Houston benefits and, in September, the Texas Supreme Court refused to hear the case by a vote of 8-1.
Only one justice, John Devine, dissented. The essence of his position was: Marriage is a fundamental right. Spousal benefits are not. Thus, the two issues are distinct.
Devine was legally wrong, for at least two reasons.
The first is that the right to marry recognized in the Obergefell case isn’t symbolic, but substantive: It’s the right to be legally married in the full sense of the term, with the same legal consequences for gay as for straight couples.
Thus, the equal right to marry includes within it the right to receive whatever legal benefits come with marriage.
The other legal reason Devine was wrong is that another Supreme Court precedent from before the Obergefell case already said that discrimination against gay people just because they are gay is a violation of equal protection.
In 1996, Romer v. Evans held that it was simply irrational to discriminate against gay people when it came to access to basic legal protections.
The Romer precedent makes it obviously unconstitutional to grant spousal benefits to straight married couples but not gay married couples.
Devine’s dissent could be dismissed as legally incompetent pandering by a conservative were it not for what happened next.
The plaintiffs in the case filed for rehearing. Their brief openly argued that the Obergefell case should be read “narrowly” because “the Supreme Court’s ruling in Obergefell imposes a ‘right’ that cannot be found anywhere in the Constitution.”
You’re not supposed to ask a state court to reject U.S. Supreme Court precedent — or to narrow it because you think it’s wrong.
The U.S. Constitution is supreme over state law and must be enforced by state courts — and the U.S. Supreme Court has the last word on its meaning.
The legislators’ brief included this gem of political-legal argumentation:
“This Court has the opportunity to diminish federal tyranny and reestablish Texas Sovereignty. The people have already spoken on the issue through the Texas legislature.”
The states’-rights sentiment isn’t far from outright denial of the supremacy of the U.S. Constitution.
In the next sentence, the legislators added that “It would be a detriment to their constituents if this elected Court were to remain silent.”
This was closer to an outright threat that the Texas justices would be kicked out of office unless they resisted the U.S. Supreme Court.
It’s hard to think of a better advertisement against electing judges.
Yet after Trump’s election, the same court that had refused to hear the case reversed course and agreed to reconsider it.
The court still hasn’t issued an opinion, but the grant of rehearing is not a good sign.
Trump himself has said that same-sex marriage “is the law of the land,” reserving his ire for Roe v. Wade.
But conservative justices of the kind he has promised to appoint would almost certainly reverse the recent Obergefell decision, which hasn’t yet acquired the patina of long-term precedent, before reversing Roe.
Gay marriage is therefore in danger if Trump gets to replace a liberal justice, just like abortion rights and maybe more so.
In the meantime, Trump’s very election is feeding resistance to the Constitution as interpreted by the Supreme Court.
That’s a highly worrisome development — and one that bears careful watching in the months and years ahead.
Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University. firstname.lastname@example.org