Prop 8 stripped (1) a fundamental right (marriage) from (2) a suspect class (gays). Because of the importance of these changes, they argue, it is thus a revision and not an amendment.

The following issues bearing on the revision/amendment distinction are raised: First, can a fundamental right be denied through amendment, requiring only a majority vote of the people? Second, can a bare majority target a suspect class by mere amendment? Either of these alone would present a novel issue for the state courts. (Important rights of criminal defendants were at issue in Raven v. Deukmejian, 52 Cal 3d 336 (Cal. 1990), though the court didn't call them "fundamental rights" and at any rate held that the case involved a revision.) Together, they're a double-whammy of constitutional change.

Now you may disagree that the fundamental right to marry extends to same-sex couples. You may also disagree that sexual orientation classifications are suspect, requiring heightened judicial scrutiny. Both objections are well-grounded, are the majority view in other state court systems, and may well be correct. But the California Supreme Court disagrees with you on both points, as it held in its marriage decision last May. Unless it reverses its decision, the court could take the importance of the right declared and the suspect nature of the discrimination into account when it decides what kind of constitutional change Prop 8 would be.

The California Supreme Court has held that the difference between an amendment and a revision turns on both "quantitative and qualitative" factors, and that "substantial changes in either respect could amount to a revision." Raven, 52 Cal. 3d at 350 (emphasis added). Thus, even if we thought that Prop 8 affected relatively few constitutional provisions (say, the state's equal protection and due-process guarantees), changes to these provisions might be regarded as "substantial qualitative" reforms in the content of basic constitutional principles.

In determining the difference between a revision and an amendment, we might ask what purpose the distinction serves. The revision process requires considerably more deliberation and political consensus before a constitutional change is made. I can see an argument, along the lines implied by Professor Bainbridge and Eugene, that more deliberation and consensus should be required before extensive and numerous changes are made in the basic design of state government. This is because such changes involve great complexity and have far-reaching consequences that should not be decided by dueling 30-second TV ads. The distinction between revision and amendment is thus a procedural protection for the basic design of government.

But I can also see an argument, offered by those challenging Prop 8, that more deliberation (through the legislative process) and more consensus (than a bare majority vote in an election) should also be required before a majority strips a fundamental right from 3% of the population. Otherwise, fundamental constitutional rights enjoy no more protection from majorities than ordinary statutory rights. And protected minorities have no more protection against majorities than those majorities themselves see fit to grant them by grace. The revision/amendment distinction, on this view, is a structural mechanism (embedded in the state constitution itself) for shielding these vulnerable minorities against hostile majorities.

The Volokh Conspiracy - Not so fast: Is Prop 8 an "amendment" or a "revision"?

If the courts explicitly acknowledge something as a "basic civil right", and that the issue is a "view of the substance and significance of the fundamental constitutional right to form a family relationship", how can that not be a "revision"?
To put it another way, if THIS issue doesn't qualify as needing a "revision" over a simple "amendment", what possibly could be more "quantitative and/or qualitatively" more important that would be a "revision" over an "amendment".

There is no sense in having a situation where the courts take a law that was passed by simple majority, declare it unconstitutional, and then the people can just "pass it again" with the same minimal requirements and overrule the courts.
To me, if somebody actually looks at the merits of the EXISTING situation, without attempting to pointlessly redefine it into their definitions and standards, what is required is a revision (more stringent requirements) and not just an amendment.

With that said, I am not sure why this issue wasn't decided earlier. I imagine that perhaps they felt there was insufficient time to bring the argument to the Supreme Court and have it be heard (and decided upon) before the November election. Such an argument would obviously take time to filter up.
Perhaps the courts are set up to only hear such arguments AFTER the legislation has become a legitimate question (as opposed to a hypothetical question). After all, it would be a waste of the courts time to raise the issue if the proposition were going to fail the simple majority in the first place.

Either way, given the history of gay marriage in California, if Prop 8 doesn't require a "revision" type vote, then I don't know what could possibly require that classification...

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"As in a poker game where the chips were concentrated in fewer and fewer hands, the other fellows could stay in the game only by borrowing, when their credit ran out, the game stopped."
--Marriner S. Eccles, FDR's fed Chairman. (1951)

You are wise to look at the particular laws. It will take that to win this fight.
Some of us get teary eyed and wonder how anyone could not see the merit of civil rights for all, but that won't do the job alone. It will take support from heterosexuals, commitment of gays and lesbians in mass and in total, AND it will take legal maneuvering.
I hear the news about marching and possible boycott of Utah for the Mormon support on this measure. I heard today that that is where the Sundance film festival is. I was cheering while listening to my car radio.
I know that's not much, but there were folks who were the only ones to voice opinion that blacks should be allowed equal protection and services under the law. They got the sideways looks. From people they grew up with.
I live in a predominantly Mormon town. I actually shudder to think another long brutal fight is coming for this country.
But I am getting old, and although I am not nieve enough to think puplic opinion can't hurt you when you really take a stand, I'm at the point in my life to see that doing nothing is far worse than doing something.

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