Prop 8 Upd8

Opponents of California's Prop 8 (i.e. advocates of gay marriage) have filed suit challenging its constitutionality. How, you might ask, can you challenge the constitutionality of an amendment to the constitution? It turns out that there are two different ways in which the California state constitution can be changed - via amendment, and via revision. An amendment is narrower in scope than a revision. In the grossest sense, an amendment adds less words (really!) to the constitution, and affects fewer other statutes than a revision, which have more words and do affect many other statutes. An amendment is a smaller change to the constitution, and fittingly, it may be passed by a simple majority of voters, as Prop 8 was. A revision requires the 2/3 approval of both houses of the legislature.

Was Prop 8 correctly set up as an amendment, or should it have been a revision? It adds only 14 words to the constitution: "Only marriage between a man or a woman is valid or recognized in California," and on its face doesn't seem to affect too many other statutes. But in a case in 1991, the California State Supreme Court determined that the change engendered by an amendment or revision ought to be judged not just quantitatively (words, laws affected) but also qualitatively. In other words, a proposed change to the constitution can be short and sweet in terms of law, but if it is large in scope, it may still be appropriately considered a revision. This is the backbone of the challenge - taking away a right of a minority class is a revision-sized change.

There is an extra element of politics - California Supreme Court justices are subject to retention votes (after opposing the death penalty, the Chief Justice and two associates were voted out of the court in 1986).