Amendment or Revision?
The entire case turns on whether Proposition 8 was actually an amendment or a revision. The California constitution can be amended or changed in one of the following ways:
- An amendment may be proposed by anyone and, once it has gained enough signatures to qualify, presented to the people during the next election. A simple majority is required to pass the amendment. Absent any instruction otherwise, it takes effect the day after the election, actually prior to certification by the Secretary of State.
- A revision must be originated either by the legislature (with a 2/3 majority vote) or a constitutional convention, and then submitted to the people for a vote where it passes with a simple majority of votes.
For example, one proposition would have stated that a defendant's rights could not be construed more broadly that in the U.S. constitution (the constituion is a kind of minimum standard--state laws and state constitutions must comply with the U.S. constitution, but they provide additional rights and protections). This doesn't seem extraordinary, and certainly wasn't a large amendment since it consisted of only a few sentences. However, the California Supreme Court ruled that it was an improper revision of the constitution since it effectively substituted the U.S. Supreme Court's judgement for that of the California Judiciary.
In another relevant example, the supreme court once ruled that the death penalty was cruel and unusual, effectively banning all death sentences in California. An initiative amendment was later passed which stated that nothing in the constitution could be used to determine that the death penalty were cruel and unusual. When challenged as an improper revision, it was upheld.
In the case of Proposition 8, the opposition argues that it is an improper revision to the constitution. They contend that Proposition 8 fundamentally alters the effect of the Equal Protection clause of the California constitution, which is an "elevated" principle at the center of the entire constitution, rather than a simple right.
According to the opposition, "[t]he electorate may not use the initiative-amendment process to strip a minority defined by a suspect classification of a fundamental right." What is a suspect classification? It is how the courts determine the level of scrutiny that a potentially discriminatory measure must meet. In effect, a law which impacts a group with suspect classification (based on race, religion, and other attributes) must face strict scrutiny and show an extremely compelling governing interest. Under Federal law, the suspect classification derives from the 14th ammendment which guarantees equal protection under the laws for all. The California constitution also contains an equal protection clause in its first Article.
When the California Supreme Court legalized same-sex marriage, the court struck down the original same-sex marriage ban, Proposition 22, by determining that sexual orientation is a suspect classification (See the opinion from In Re Marriage Cases [links to a PDF]) and therefore the same-sex marriage ban in Proposition 22 must be examined with strict scrutiny. The arguments presented by proponents of Proposition 22 were insufficient to convince the court of a compelling government interest in banning same-sex marriages.
The Problem with the Argument
One problem with the opposition's argument is that it relies on a concept, suspect classification, that derives from the very clause being limited by the Proposition. Further, it introduces a new test for revision status in requiring that the court consider a suspect classification.
But how can the affected clause be used to inhibit its own amendment without specific wording to that effect?
The opposition argument places nearly any change to the equal protection clause above amendment, and questions whether the clause is even subject to revision.
It is clear that the Proposition does not quantitatively qualify as a revision, and it is also clear that it does not effect a change in the balance of powers or the basic governmental plan of the constitution. Absent either of those conditions, it is a valid amendment.
The opposition is free to mount a challenge on the basis of the 14th amendment to the U.S. constitution, but that is not part of the current case.