In debates about the permissibility of certain kinds of differential treatment, our judgments often seem to depend on how the 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 marrying within one’s own sex. It seems, in other words, that the prohibition of same-sex marriage constitutes legally impermissible 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 discrimination and 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 policies 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.
7 GA. L. REV. 1 (2012)