Having read up on this issue extensively, as well as the relevant case law, I would have to conclude that Proposition 8 is indeed a legitimate amendment. Initiative constitutional amendments have been used to legalize Indian gaming, impose legislative term limits, forbid the state from engaging in racial or gender discrimination in employment, and even reinstate the death penalty. The last two are especially relevant. An initiative amendment added Section 31 to the Declaration of Rights, forbidding the state from discriminating against "any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." In effect, it was an expansion of the scope of the equal protection clause. If revisions were necessary to affect the equal protection clause,
then this section would be invalid and there would be no explicit basis in the state constitution for equal protection in public employment, public education, or public housing. An initiative amendment added Section 27 to the Declaration of Rights, which constitutionalized the death penalty. It was added after the Supreme Court had
ruled "that capital punishment is both cruel and unusual as those terms are defined under article I, section 6, of the California Constitution, and that therefore death may not be exacted as punishment for crime in this state." In that same decision, it reiterated that "The cruel or unusual punishment clause of the California Constitution, like other provisions of the Declaration of Rights,
operates to restrain legislative and executive action and to protect fundamental individual and minority rights against encroachment by the majority." It is noted that the cruel and unusual punishment clause applies to all persons subject to California law; the only dispute in questions over cruel and unusual punishment is whether the punishment is cruel or unusual. Section 27 was challenged as an illegitimate revision in
People v. Frierson , the Court
rejected that challenge.
Thus, a fundamental right found in the state constitution's Declaration of Rights was affected by an initiative amendment. The decision
Raven v. Deukmejian did invalidate an initiative amendment-
but the amendment placed drastic limits on state courts' ability to interpret the rights of criminal defendants, limiting state interpretation of state constitutional protections to the U.S. Supreme Court's interpretation of analogous U.S. constitutional protections. By contrast, Prop. 8 is extremely limited in scope-
it only defines one word. State courts continue to have the power to apply equal protection on the basis of sexual preference and orientation, including whether same-sex couples, including those who got "married" before Prop. 8's passing, are constitutionally entitled to tax, inheritance, power-of-attorney, hospital visitation, and other benefits married couples enjoy. They could even rule on whether or not divorce laws apply to same-sex couples- Prop. 8 did not define divorce.
And last and certainly not least, state courts can rule on whether or not Prop. 8 is consistent with the U.S. Constitution. To rule Prop. 8 as a revision would effectively state that a revision is required to define marriage,
but an amendment is sufficient to define the applicability of cruel and unusual punishment over the death penalty- a life or death issue.