The family law canon is in flux. Much of the conversation has rightly focused on Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022), which narrowed the scope of substantive due process to exclude the right to obtain an abortion. But there is also Fulton v. City of Philadelphia, 593 U.S. 522 (2021), where the Supreme Court found that the city’s decision to terminate its contract with a religious agency for not certifying same-sex parents as foster parents violated the agency’s free exercise rights. And 303 Creative v. Elenis, 600 U.S. 570 (2023), which interpreted the First Amendment’s freedom of expression to protect the religious beliefs of a website designer who refused to create wedding websites for same-sex couples, overriding a state public accommodations law in the process.
These various cases addressing different clauses of the Constitution are broadly united insofar as they portend the Court’s conservative turn in family law and beyond. Yet Laura Portuondo’s forthcoming piece, Gendered Liberty, shows that these cases are more than fellow ideological travelers—rather, they reflect the Supreme Court’s specific and singular understanding of gender. What Dobbs, Fulton, 303 Creative, and others do, is “consistently ensure protections for conduct that enforces traditional gender norms and actively undermine statutory conduct that resists them.” (P. 4.)
It has been obvious for some time now that the Court is expanding First Amendment protections for free exercise and free speech; it is also pulling back from a more robust interpretation of the Fourteenth Amendment. Portuondo’s novel claim, and core contribution, is to argue that this expansion and contraction are related: “[t]hese doctrines work together to affirmatively and artificially subordinate the autonomy and self-determination of those who would defy gender stereotypes to that of those who wish to enforce those stereotypes.” (P. 7.) Thus, the Court’s interpretation of the First Amendment enforces gender conformity by providing protection to those who believe in traditional gender norms, while its interpretation of the Fourteenth Amendment denies constitutional protection to those who engage in gender-nonconforming conduct. Moreover, these doctrines work in conjunction to erase gender altogether, “to launder controversial judgments about the value of gender conformity into seemingly neutral narratives about constitutional liberty.” (P. 7.)
Portuondo offers up the notion of “gendered conduct,” or “conduct linked to a person’s gender identity” (P. 6), which the Court mostly fails to protect, as a parallel to conscientious conduct, or “conduct linked to a person’s religious or moral identity” (P. 9), which the Court zealously safeguards. This direct comparison helps to emphasize the extent of the Supreme Court’s differential treatment. So what exactly constitutes gendered conduct? Portuondo defines it by reference to regulations that “enforce social stereotypes about people . . . with a particular gender identity” or that “disparately harm people . . . with a particular gender identity.” (P. 6.) Gendered conduct can therefore include “pregnancy, abortion, same-sex intimacy, motherhood, gender transition, or something else.” (P. 6.)
By focusing on conduct, Portuondo effectively inures herself to criticism that her argument essentializes gender, or presumes that certain characteristics are innate or inherent to any gender. She understands gender identity to gain meaning from performance and to depend on socially sanctioned scripts, or their subversion, for significance. Throughout her piece, Portuondo calls on pregnancy as paradigmatic of gendered conduct. It is a generative example in more ways than one. Pregnancy is a physiological process, which easily lends itself to biological essentialist arguments that equate pregnancy with gender, or that treat pregnancy as a real difference that warrants differential treatment. The Court in Muller v. Oregon, 208 U.S. 412, 421 (1908), does both, relying on “matters of general knowledge” to reason that “woman’s physical structure and performance of maternal functions place her at a disadvantage in the struggle for subsistence.”
Pregnancy, however, is not so straightforward. It carries varied meanings depending on whether it is performed, how, and by whom. As memoirist and cultural critic Maggie Nelson has submitted: “How can an experience so profoundly strange and wild and transformative also symbolize or enact the ultimate conformity?” Is there not “something inherently queer about pregnancy itself, insofar as it profoundly alters one’s ‘normal’ state, and occasions a radical intimacy with—and radical alienation from—one’s body?”1 What matters to Portuondo is identifying the ways that law limits who gets to choose pregnancy and under what conditions. It predictably fails to protect, or even to register, inter alia, white women who seek to end their pregnancies, transgender men who are pregnant, black women who want to be mothers, or anyone who inhabits more than one of these identities. (Pp. 33-34.) In Muller, it was not pregnancy itself, but the Court’s assumption that all women were or would become pregnant that made it so that they were “at a disadvantage in the struggle for subsistence”—by upholding a state law limiting their ability to work on the same terms as men.
Because Portuondo delegates the definition of gendered conduct to external sources of law and social meaning, she has to make a case for how such conduct is also important to one’s internal, subjective sense of self. (P. 38.) Portuondo argues that protecting gendered conduct—like the Court currently protects conscientious conduct—would promote individual liberty for everyone, especially for those with marginalized identities. (P. 39.) The payoff of setting up this tight analogy is that it compellingly shows how the principles of liberty and autonomy the Court embraces for conscientious conduct are also at stake for gendered conduct. Portuondo details the many ways the Court has strengthened its support of conscientious conduct by, for instance, holding laws unconstitutional that “devalue” religion (instead of engaging in a discriminatory purpose determination) (P. 13), or finding that such laws automatically fail under a “strictest scrutiny” standard. (P. 16.) Adopting this more expansive read would mean that laws that “devalue” the interests of individuals with a given gender identity, as laws that restrict abortion do, would also be unconstitutional. (Pp. 35-36.) That the Court fails to reason in its Fourteenth Amendment decisions as it does in its First Amendment opinions is that much more egregious.
I am curious, however, to what extent Portuondo’s argument that gendered conduct merits constitutional recognition depends on conscientious conduct being granted such sweeping immunity. Do we need to accept the latter as is, in order to acknowledge the former? Or can criticisms of the Court’s First Amendment jurisprudence coexist with Portuondo’s proffers to shore up the Fourteenth Amendment by relying on it as a template? These questions might just be the inevitable result of a project that both critiques current First Amendment jurisprudence and relies on it as a potential alternative framework of analysis.
Portuondo’s aim to render visible—and legible under the Supreme Court’s own reasoning—the ways that liberty is implicated for gender-nonconforming individuals is crucial, even if “the Supreme Court may be unwilling to listen.” (P. 55.) Although Portuondo’s vision of the Fourteenth Amendment might never materialize, she has articulated exactly why—because of the Court’s one-sided protection of traditional gender norms. Her piece ably shows that this conclusion is anything but natural, or neutral. What the Supreme Court has fashioned is a “gendered liberty” which “recognizes the enforcement of gender norms as a fundamental freedom and denies that defiance of such gender norms has anything to do with freedom at all.” (P. 53.) In reading gender back into the Court’s opinions, Portuondo’s article shows how the law actively enforces a contestable yet consistent definition of liberty—by limiting who gets to claim it.
