However, the issue presented by Prop 8 is different in important respects from any that the state courts have previously confronted.
In a brief filed yesterday several legal groups representing gay couples argue that Prop 8 is a revision. You should read their brief if you want to get into the weeds of the argument further, but I can summarize the heart of it fairly succinctly: 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.
[...]
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.