Publication Date



Discrimination Under a Description .......................... Patrick S. Shin 1
In debates about the permissibility of certain kinds of
differential treatment, our judgments often seem to depend
on how to conduct in question is described. For example,
legal prohibitions on same-sex marriage seem clearly
impermissible insofar as they can be described as a form of
sex discrimination, less clearly so, at least under federal
law, if described simply as sexual-orientation
discrimination, and arguably not discriminatory at all
insofar as they constitute a universally imposed disability
on marryingwithin one's own sex. It seems, in other words,
that the prohibitionof same-sex marriage constitutes legally
impersmissible discrimination under some descriptions but
not under others. The problem, or so I will argue, is that
none of the available descriptions seems to be uniquely
correct. But if our judgments of permissibility depend on a
choice among equally veridical descriptions, how can those
judgments be justified? In this Article, I explore this
'problem of description" and discuss how the law should
choose between alternative characterizations of disputed
conduct for the purpose of judging whether it constitutes
impermissible discrimination. Drawing on case law and
literature relating to sexual-orientation discriminationand
the constitutionality of the prohibition of same-sex
marriage, I attempt to disentangle the various issues
embedded in disagreements about the proper description of
ostensibly discriminatory conduct and to expose the
substantive values that are truly at stake. I show how
giving legal effect to one description to the exclusion of
another always implies a principle governing the relative
priority of the polices implicated by the competing
alternative descriptions, and that the defensibility of the
choice of description depends ultimately on the justifiability
of that principle of priority.