In Gendered Liberty, Prof. Laura Portuondo presents a doctrinal puzzle: While claims to individual liberty are in decline in some spaces, they are ascendant in others. As Portuondo describes things, constitutional law has become increasingly hostile to claims by people who seek to defy gendered stereotypes. That includes the women who, for whatever reason, do not want to become mothers when they are pregnant, as well as the women whose lives, health, or fertility would be in jeopardy if they became mothers. The Supreme Court overruled their claims to liberty in Dobbs v. Jackson Women’s Health Organization.
At the same time, however, the Court has embraced the liberty claims of people who seek to enforce gendered stereotypes (and thereby diminish the liberty of those who seek to defy them). Portuondo points to the Court’s decisions in Fulton v. City of Philadelphia and 303 Creative v. Elenis as examples of this phenomenon. Both cases allowed entities that objected to marriage equality to project their opposition to marriage equality onto the queer people who were defying gender stereotypes by marrying a person of the same sex. Portuondo also notes the rising tide of conscientious objector liberty claims to legal protections for the transgender community. In doing so, Portuondo persuasively debunks the Court’s insinuations (which were most apparent in 303 Creative) that regulation of conduct has “nothing to do with gender at all.”
Portuondo argues that a “gendered vision of liberty” explains the Court’s decisions. To make this claim, she first explores and rejects “reasons beyond the[] [Court’s] decisions” that could “justify th[e] result[s]” of the cases. As Portuondo explains, many of the alternative explanations or justifications boil down to a claim that liberty does not include protections for gendered conduct, a proposition she rejects.
Part of what is powerful about Portuondo’s article is how it illuminates a pattern of courts and commentators laundering the gendered vision and theory of liberty through constitutional theory and interpretive methods. The theories and methods, she explains, purport to be neutral and even-handed; they bury or omit references to gender, gender stereotypes, and sexual minorities. And they obscure the gendered nature of the developing law.
While I hesitate to ever suggest that a law review article should be longer, Portuondo’s synthesis of the Court’s development of gendered liberty raises the question of why. The why question is really a series of additional questions about the religious liberty matters that the article uses mostly as a comparison point for women’s liberty claims. In particular, one wonders, to what extent are the contours of the constitutional protections for liberty tracking certain religious beliefs? Is that coincidental, in which case this might be another aspect of traditionalism, or is it something different? Does it reflect a sense that the constitution, in the hands of the current Court, has religious assumptions baked into it, or that it privileges religious assumptions over others? Another aspect of this question is something I have explored in some previous and some forthcoming work, which is to what extent are the contours of the constitutional protections for liberty driven by a sense of which individuals—women raising liberty claims to secure their reproductive autonomy versus individuals who share certain religious beliefs—warrant judicial protection today? Perhaps in future work, Portuondo will explore more of why the Court has developed such a two-tiered, gendered approach to liberty.
Portuondo’s synthesis of courts’ gendered accounts of liberty builds on the work of such influential scholars as Reva Siegel, whose work on originalism demonstrated how the political practice of originalism sought to reinforce traditional gender norms about women’s proper role in society. Portuondo’s article is also, as the piece explains, in conversation with the work of Melissa Murray, who has drawn connections between the Court’s jurisprudence on guns, religious liberty, and abortion to argue that the Court is uniquely concerned with the liberty claims of men, and that judgments about gender are influencing the content of the law. Portuondo’s work adds to their scholarship in illuminating what the law is doing, an impressive feat for someone so early in their academic career.
Editor’s note: For an earlier review of Gendered Liberty see Albertina Antognini, Whose Liberty?, JOTWELL (May 8, 2025).
