The anti Prop-8’ers are attacking the new amendment the only way it can. Three lawsuits have been brought to the California Supreme Court regarding the process of the Prop-8 initiative. The opponents of Prop-8 contend that the language defining marriage as between a man and a woman is actually a revision to the Constitution and not an amendment. Why is that a big deal? Let me explain:
Under the California Constitution, an initiative can be used for “amendments” but not “revisions”:
[Art. XVIII, § 1.] The Legislature …, two-thirds of the membership of each house concurring, may propose an amendment or revision of the Constitution ….
[§ 2]. The Legislature …, two-thirds of the membership of each house concurring, may submit at a general election the question whether to call a convention to revise the Constitution….
[§ 3]. The electors may amend the Constitution by initiative.
[§ 4]. A proposed amendment or revision shall be submitted to the electors and if approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise.
Ergo: Comparing section 1 with section 3 shows that, while the legislature may either propose an amendment or a revision, the initiative process may only propose an amendment and not a revision. I.e., if Prop-8 is an amendment then a simple majority by the voters is legitimate. If Prop-8 is a revision then it should never have been put on the ballot; a 2/3 vote by the state legislature would be required. This is confirmed in Raven v. Deukmejian, 52 Cal. 3d 336 (1990).
In Raven, the California Supreme Court held that an “amendment” and a “revision” of the state Constitution is defined by a sliding scale hinging on two different factors: Quantitative Change and Qualitative Change to the Constitution. The larger the change the more likely it is a revision.
1-Quantitative: A large change to the state Constitution would require commissions to “rewrite” portions of the state Constitution. For example, in the 1960’s the California Constitution was almost 50,000 words; longer than any other state Constitution. The California legislature commissioned a group to cut it down, which it did. After the commission, the Constitution was cut down to 21,000 words. The legislature had to vote on the change because it was so large and was deemed a revision and not an amendment. In this case, Prop 8 only requires the edition of 14 words to the California Constitution. It is not a large change and therefore should be seen as an amendment and not a revision.
2-Qualitative: This issue is much more difficult than quantitative. The opponents of Prop 8 make the argument that Prop 8 is discrimination of a “fundamental right” to a “suspect class” of citizens; because the “change” is so important to the Constitution, it should only be revised through legislative avenues.
(a) Fundamental Right: I cannot find the case, but marriage in California has been deemed a fundamental right (Loving v. VA) UNLESS stated otherwise. The 9th Circuit left the door open for an abridgment to the fundamental right of marriage; i.e., if otherwise stated. The people of California stated otherwise on November 4th by a 52/48 margin.
(b) Suspect Class: I have never found a case which said homosexuals, as a class, are suspect. The closest the Supreme Court has come to calling homosexuals a suspect class was in Romer v. Evans (the Colorado Prop II initiative). In that case, the Supreme Court told the Colorado legislature it could not write a law which disallowed legislation to specifically protect homosexuals (man is that a convoluted sentence). Even though the law was overturned, the Supreme Court admitted to using a rational basis test; most scholars suggest that the Supreme Court used some sort of scrutiny between rational basis and intermediate scrutiny. Rational basis judicial review, the lowest of all judicial reviews, has always been reserved for classes of people which are not suspect in the eyes of the judiciary. In other words, homosexuals have never been deemed a suspect class by the Supreme Court. If this case gets to the Supreme Court, it would have to overturn precedence and ignore stare decisis in the process if the Court wanted to call homosexuals a suspect class.
3-Another Argument: However, the opponents of Prop 8 may make the argument that homosexuals are a “political unpopular group” like the hippies were in US Dept. of Agriculture v. Moreno. However, with the amount of legislation which has passed concerning hate crimes for beating up homosexuals (etc.), I do not know how that argument could be made. Homosexuals are not a political unpopular group like the hippies or the Black Panthers in the 1960’s.
Homosexuals are not a suspect class as they argue because very recent precedent cases in which the Supreme Court used a rational basis test when scrutinizing laws regarding homosexuals says so. (Romer and Lawrence).
In Conclusion: Prop 8 is an amendment because it is both a minor quantitative and qualitative change to the California Constitution; marriage is only fundamental unless otherwise stated, and homosexuals are not a suspect class.
Either way, this is going to be a crazy year or so.