Proposition 8 attempts to change our fundamental law by means of an initiative amendment that, on a simple majority vote, threatens all of our fundamental constitutional rights – including the right to freedom of religion.
Article XVIII of the California Constitution sets up different procedures for important “revisions” of the Constitution’s fundamental law, on the one hand, and relatively minor “amendments” on the other.
Changes that affect core aspects of our constitutional government are “revisions” that require passage either by two-thirds majorities in both houses of the legislature plus submission to the people, or a full-blown constitutional convention.
An “amendment,” on the other hand, involves a relatively minor “addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.” Livermore v. Waite (1894) 102 Cal. 113, 118-19.
Nothing could be more fundamental to our constitutional government than equal protection of the law.
It follows, then, that Proposition 8 is void. Because if Proposition 8 were upheld, setting a precedent that fundamental rights may indeed be deleted on the basis of a simple majority vote, then there is no principled limitation on what other rights might be taken away by initiative amendments. Not even fundamental constitutional protections of religious liberty would be safe.