A challenge to the Defense of Bigotry Initiative has been lodged. I think it should be rejected, for some of the same reasons that Eugene Volokh suggests.
A “revision” to the Constitution is something that changes the basic structure of the government — requiring tax bills to originate in the Assembly instead of either in the Assembly or the Senate, for instance; or splitting the functions of the Supreme Court into multiple bodies (like the way Texas does it with one Supreme Court for criminal appeals and another Supreme Court for everything else, something I kind of like). It cannot be done only through the initiative process; it requires, instead, a series of constitutional conventions held in the various counties, reporting the results of their deliberations to the Legislature, followed by confirmation of the revision by initiative.
So the question is whether adding this clause: “Only marriage between a man and a woman is valid or recognized in California” is a “revision” because it effectively takes away the power of the Supreme Court to interpret that state’s Equal Protection Clause, or in the alternative, whether such a language “revises” the scope of that clause, such that it would require the more elaborate, expensive, and politically challenging process of constitutional conventions to be put on the ballot in the first place.
I just don’t see it. We can create entire new executive offices, including new Constitutional officials, by initiative — for instance, the California Department of Insurance, headed by an independently-elected Constitutional officer, the Insurance Commissioner, was created by initiative. We created the lottery by initiative, modifying the prior Constitutional prohibition against lotteries to permit the state to run one. Although I disapprove of and will vote against the Defense of Bigotry Initiative, its proponents seem to have gathered enough signatures to qualify it for the ballot, and it therefore has earned the right to an up- or down-vote by the people in November.
Whichever side loses the vote will have to live with the results, because that’s how democracy works. With that said, I urge my fellow Californians to vote “no.” How would you like it if the voters came along and rendered your marriage void, especially if they did it because they were prejudiced against you for religious reasons? Just consider that before you fill in or punch the circle for “yes.”