Leah Litman, Free to Be You But Not Me, JOTWELL, reviewing Laura Portuondo, Gendered Liberty, __ Geo. L.J. __ (forthcoming), available at SSRN.
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.