Discrimination Under a Description

Discrimination Under a Description .......................... Patrick S. Shin 1In debates about the permissibility of certain kinds ofdifferential treatment, our judgments often seem to dependon how to conduct in question is described. For example,legal prohibitions on same-sex marriage seem clearlyimpermissible insofar as they can be described as a form ofsex discrimination, less clearly so, at least under federallaw, if described simply as sexual-orientationdiscrimination, and arguably not discriminatory at allinsofar as they constitute a universally imposed disabilityon marryingwithin one's own sex. It seems, in other words,that the prohibitionof same-sex marriage constitutes legallyimpersmissible discrimination under some descriptions butnot under others.

The problem, or so I will argue, is thatnone of the available descriptions seems to be uniquelycorrect. But if our judgments of permissibility depend on achoice among equally veridical descriptions, how can thosejudgments be justified? In this Article, I explore this'problem of description" and discuss how the law shouldchoose between alternative characterizations of disputedconduct for the purpose of judging whether it constitutesimpermissible discrimination. Drawing on case law andliterature relating to sexual-orientation discriminationandthe constitutionality of the prohibition of same-sexmarriage, I attempt to disentangle the various issuesembedded in disagreements about the proper description ofostensibly discriminatory conduct and to expose thesubstantive values that are truly at stake.

I show howgiving legal effect to one description to the exclusion ofanother always implies a principle governing the relativepriority of the polices implicated by the competingalternative descriptions, and that the defensibility of thechoice of description depends ultimately on the justifiabilityof that principle of priority.