The Texas Supreme Court has agreed to reconsider acase about whether married gay city employees must be given spousalbenefits. That’s a terrible sign. The briefs openly urge the courtto resist the U.S. Supreme Court’s landmark gay marriage decisionby reading it narrowly to say that gay people have a fundamentalright to marry but no right to equal benefits.

It’s a legally deceptive argument, which the current justices inWashington would summarily reject. But it’s dangerous all the same,because it shows that Donald Trump’s election is spurring outrightresistance to federal law and precedent. And the Texas justices,who are elected, have no excuse for agreeing to reconsider thecase.

Related: How much has same-sex marriage change employeebenefits?

The case, Pidgeon v. Turner, arose from a lawsuit trying toblock the benefits that the city of Houston affords to the same-sexspouses of city employees. The case had no legal chance of successonce the U.S. Supreme Court decided Obergefell v. Hodges in2015.

That decision held both that marriage is a fundamental right andthat the equal protection guarantee of the U.S. Constitutionrequires that it be extended equally to gay and straightcouples.

The Texas lower courts rejected the attack on the Houstonbenefits and, in September, the Texas Supreme Court refused to hearthe case by a vote of 8-1. Only one justice, John Devine,dissented. The essence of his position was: Marriage is afundamental right. Spousal benefits are not. Thus, the two issuesare distinct.

Devine was legally wrong, for at least two reasons. The first isthat the right to marry recognized in the Obergefell case isn’tsymbolic, but substantive: It’s the right to be legally married inthe full sense of the term, with the same legal consequences forgay as for straight couples. Thus, the equal right to marryincludes within it the right to receive whatever legal benefitscome with marriage.

The other legal reason Devine was wrong is that another SupremeCourt precedent from before the Obergefell case already said thatdiscrimination against gay people just because they are gay is aviolation of equal protection. In 1996, Romer v. Evans held that itwas simply irrational to discriminate against gay people when itcame to access to basic legal protections.

The Romer precedent makes it obviously unconstitutional to grantspousal benefits to straight married couples but not gay marriedcouples.

Devine’s dissent could be dismissed as legally incompetentpandering by a conservative were it not for what happened next.

The plaintiffs in the case filed for rehearing. Their briefopenly 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 notsupposed to ask a state court to reject U.S. Supreme Courtprecedent -- or to narrow it because you think it’s wrong. The U.S.Constitution is supreme over state law and must be enforced bystate courts -- and the U.S. Supreme Court has the last word on itsmeaning.

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They plaintiffs were buttressed by friend of the court briefsfrom Texas Governor Greg Abbott and by a group of statelegislators.

The legislators’ brief included this gem of political-legalargumentation:

"This Court has the opportunity to diminish federal tyranny andreestablish Texas Sovereignty. The people have already spoken onthe issue through the Texas legislature."

The states’-rights sentiment isn’t far from outright denial ofthe supremacy of the U.S. Constitution.

In the next sentence, the legislators added that “It would be adetriment to their constituents if this elected Court were toremain silent.” This was closer to an outright threat that theTexas justices would be kicked out of office unless they resistedthe U.S. Supreme Court. It’s hard to think of a betteradvertisement against electing judges.

Yet after Trump’s election, the same court that had refused tohear the case reversed course and agreed to reconsider it.

The best explanation for the flip is that the Texas court ofelected justices is sensing the mood of the state -- and maybe thecountry. It’s anticipating that a Supreme Court with at least twoTrump nominees could reverse Obergefell. And it wants to signal insome way that it’s on the “right” -- i.e. wrong -- side ofconstitutional history. It still hasn’t issued an opinion, ofcourse, but the grant of rehearing is not a good sign.

Trump himself has said that same-sex marriage “is the law of theland,” reserving his ire for Roe v. Wade. But conservative justicesof the kind he has promised to appoint would almost certainlyreverse the recent Obergefell decision, which hasn’t yet acquiredthe patina of long-term precedent, before reversing Roe. Gaymarriage is therefore in danger if Trump gets to replace a liberaljustice, just like abortion rights and maybe more so.

In the meantime, Trump’s very election is feeding resistance tothe Constitution as interpreted by the Supreme Court. That’s ahighly worrisome development -- and one that bears careful watchingin the months and years ahead.

This column does not necessarily reflect the opinion of theeditorial board or Bloomberg LP and its owners.

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