A couple of days ago, I finished reading the recent opinion upholding Proposition 8. I highly recommend giving it a read. It's 185 pages, which largely clarifies my understanding of what a constitutional revision is.

Previous to having read the decision, I tended to think that a constitutional revision was something which clearly repealed an express provision of the constitution. I would have argued that Proposition 8 did not constitute a revision because same-sex marriage was not expressly provided for in the constitution and that the whole of Marriage Cases rested on poor (IMO) and largely capricious judicial precedent, and a little disdain for basic logic.

Apparently, repealing and changing points of the Constitution is allowed, and is not sufficient to constitute a revision. (Although, I would have thought "revise" and "change" were synonyms, the term apparently has special application in constitutional law.) A revision is defined as a fundamental change to the constitution which alters either the basic governmental framework (by say, eliminating some portion of the checks and balances system) or by making some other change which broadly contradicts the way the constitution currently operates.

In this sense, I find the definition a bit unpleasant, as the line between a revision and an amendment is not very clearly defined (or, at least, it would seem difficult to draw such a line in a non-capricious manner). However, the line is sufficiently clear to put proposition 8 almost beyond contention as an amendment, and not a revision.

There was only one dissenting opinion, and this, seemed to be almost a deliberate misreading of the majority opinion, coupled with an obstinate insistence on making a mountain out of a molehill.

Dissent comes from Moreno J., who's two main points seem to be that the majority erred in defining a revision as being solely a matter of revising the structure of government, and that Proposition 8 constitutes a big change rather than a small one.

In his defense, I have already noted that the definition of a constitutional revision makes the matter pretty vague. Really there's wiggle room to go to many extremes in one's definition. What is drastic from one person's point of view, may be minor from another. Without a clearly established rule for prioritizing and weighing principles of the constitution, judgment becomes nothing more than a matter of personal preference influenced by the weight of judicial tradition.

To his first point, "that the majority erred in defining a revision as being solely a matter of revising the structure of government", I will grant him, that without context, some of the statements he quotes from the majority decision sound like they advance that proposition, and in that sense, may be a bit sloppy. However, in context, the majority most certainly demonstrated that their meaning was more broad than Moreno J. grants. They most certainly considered non-structural impacts to the government, and while Moreno J. seems unwilling to grant that they included such considerations in their definition of a constitutional revision, he nonetheless goes on to contend against the majorities non-structural considerations.

In considering the idea that Proposition 8 might have constituted a revision due to its impact on the rights of a minority group, the majority did not contend that a modification of rights could not be construed as a revision. Rather, the majority contended that Proposition 8 was only a very narrow modification, in that it, in their view, carved out only one single exception to the principle of equal protection, but left the principle fully intact to apply elsewhere the same as always. All the substantive rights of married couples still remained intact, so that the necessary effect was very limited.

In Moreno J.'s opinion, any exception to the principle of equal protection is a major one, no matter how limited the scope.

(In my opinion, this isn't really an equal protection issue.)

Moreno J.'s opinion, in the end, seems a little on the extreme side of the possible interpretations, but it is not altogether surprising that one of the judges could be found to be taking the position.

Another interesting point that comes from this, is that since a revision is not defined as an explicit modification to a clearly stated point of the constitution, Proposition 8 is left without any protection against attempts to repeal it. In the opinion of the majority of the court. Repealing an amendment is as much a revision as making the amendment. Hence, with the narrow margin of victory that we Californians had over same-sex marriage this past year, we are in no way made safe against very shortly having our work undone.

There is much work to be done and we need to get our houses in order so that we can work earnestly to do it.