The question the Court will consider is whether Proposition 8 amended the state constitution or revised it. If Proposition 8 revised, rather than amended, California's constitution, there are more stringent requirements for implementation. Indeed, as the New York Times notes:
Under California law, an amendment is a matter that the state’s longstanding initiative process deals with routinely. A revision, however, entails a fundamental change to the Constitution, and requires approval of either two-thirds of each house in the Legislature or a constitutional convention. That could be much harder to achieve than passage in a referendum.Although the legal question presented of whether Proposition 8 was an amendment or revision is mundane, the case brings to the fore a number of interesting considerations. I personally find the implicit "role of the Court" question most fascinating given that Proposition 8 proponents have repeatedly pointed to the "will of the people" in defending the measure--a view which suggests the Court would somehow be encroaching on the democratic process by invaliding the provision. If anything, however, these views are an argument for judicial oversight and review; who, after all, is better equipped to vindicate rights (constitutional or otherwise) than the Courts? In a different, albeit related, context the Supreme Court recognized as much when it struck down a voter-enacted amendment to Colorado's constitution in Romer v. Evans, 517 U.S. 620 (1996).