Not So Fast On Proposition 8

Under California law, simple "amendments" to the state constitution may be added by a simple popular vote ballot initiative. "Revisions" to the state constitution, on the other hand, require that you meet higher demands. Instead of requiring a simple popular vote, "revisions" demand that each state house first approve the measure by a 2/3 vote before it can be submitted to a popular vote.

The California state constitution is apparently not entirely clear on what separates "amendments" from "revisions."

On Tuesday, the people of California passed Proposition 8 by a closely divided popular vote. Although it was described as an "amendment," Prop 8's opponents point out that it actually stripped what California considers to be a "fundamental right" (the right to marry) from a "suspect class" of people (homosexuals). In legal jargon, "suspect class" just means that this group of people is the likely subject of discrimination, and that reviewing courts should use heightened scrutiny when reviewing legislation that tends to work to their disadvantage. In practice, Prop 8's foes argue, this should work to classify Prop 8's changes as a major "revision" (requiring a higher procedural hurdle) rather than a simple "amendment" (requiring a simple popular vote majority).

The classification of Prop 8 (as an "amendment" or a "revision") is important. It is highly unlikely that the California legislature (which has twice voted to extend marriage benefits to same-sex couples) would vote to deny marriage to homosexuals (especially by a large, 2/3 margin).

Dale Carpenter has a brief summary of the opposing legal arguments here. Legal groups are now challenging Prop 8 in court.