Gendered Liberty
LAURA PORTUONDO*
Individual liberty is ascendant in constitutional law, but only for some.
First Amendment doctrine has increasingly protected liberty interests in
conduct linked to conscientious identity, as exemplified by newly success-
ful claims to religious exemptions from antidiscrimination law. This
contrasts with shrinking Fourteenth Amendment protections for liberty
interests in conduct linked to gender identity, as exemplified by the recently
eliminated right to abortion and imperiled rights to contraception,
marriage, and sexual intimacy. More muscular protections for consci-
entious liberty have diminished even statutory protections for gender-
related conduct. The result is a liberty jurisprudence that increasingly
protects conservative religious objectors, even as it increasingly dis-
misses marginalized gender groups. This Article argues that this disparity
is neither a requirement of constitutional doctrine nor an extension of a
neutral theory of liberty. Instead, it emerges from a gendered theory of
liberty—one that protects the freedom to enforce traditional ideas about
gender and denies the freedom to challenge them.
By describing gendered liberty, this Article shows that the fall of lib-
erty under the Fourteenth Amendment and its rise under the First
Amendment are symbiotic. These doctrines work together to launder con-
troversial judgments about the value of gender nonconformity into seem-
ingly neutral stories about liberty. In doing so, they permit the U.S.
Supreme Court to subordinate the autonomy and self-determination of
those who would defy gender stereotypes to that of those who would
enforce gender stereotypes. More importantly, these doctrines permit the
Supreme Court to deny that it is engaged in a project of subordination at
all. This Article resists these claims of neutrality and the stories about
liberty they rely on by showing that liberty includes those who do not
conform to gendered expectations.
* Assistant Professor, University of Houston Law Center. © 2025, Laura Portuondo. For their helpful
comments and encouragement, I thank Sally Burns, Katie Eyer, Dave Fagundes, John Fee, Leah Fowler,
Fred Gedicks, Linda McClain, James Nelson, Anthony Sampson, Liz Sepper, Reva Siegel, Nelson
Tebbe, Lucy Williams, and the participants of the University of Houston Law Center Faculty Workshop,
the Reproductive Rights/Reproductive Justice Roundtable, the Nootbaar Law and Religion Fellows
Conference, the 2024 National Conference of Constitutional Law Scholars, and the BYU Individual
Rights & Liberty Interests Colloquium.
707
TABLE OF CONTENTS
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 709
I. PROTECTING CONSCIENTIOUS CONDUCT . . . . . . . . . . . . . . . . . . . . . . . . . . . 715
A. HISTORICAL LIMITS ON CONSCIENTIOUS CONDUCT PROTECTIONS . . . 716
B. RECENT EXPANSION OF CONSCIENTIOUS CONDUCT PROTECTIONS . . . 719
1. Free Exercise Doctrine .............................. 720
2. Free Speech Doctrine ............ ................... 723
C. THEORETICAL JUSTIFICATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 726
II. PROTECTING GENDERED CONDUCT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 730
A. IDENTIFYING GENDERED CONDUCT . . . . . . . . . . . . . . . . . . . . . . . . . . . 731
B. THE MECHANICS OF PROTECTING GENDERED CONDUCT . . . . . . . . . . . 738
C. THE THEORY OF PROTECTING GENDERED CONDUCT . . . . . . . . . . . . . . 740
III. PROTECTING GENDERED LIBERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 745
A. THE POSSIBLE LIMITS OF LIBERTY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 746
1. The Progressive Critique ............................ 746
2. The Conservative Critique ........................... 748
B. THE GENDERED LIMITS OF LIBERTY . . . . . . . . . . . . . . . . . . . . . . . . . . 751
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 756
708 THE GEORGETOWN LAW JOURNAL [Vol. 113:707
INTRODUCTION
For many people, constitutional liberty
1
is in decline. The U.S. Supreme Court
has read a liberty right to abortion out of the U.S. Constitution.
2
The Court’s rea-
soning, moreover, endangered related liberty rights to contraception, same-sex
marriage, and sexual intimacy.
3
These shrinking protections for gender-related
1. This Article often draws a distinction between “liberty” and “equality” as both a doctrinal and
theoretical matter. As a doctrinal matter, it uses this distinction to describe two different strands of
constitutional rights jurisprudence: equality doctrine and liberty doctrine. Equality doctrine, which finds
its home in provisions such as the Equal Protection Clause of the Fourteenth Amendment, forbids the
government from discriminating in certain ways. See, e.g., Students for Fair Admissions, Inc. v.
President & Fellows of Harvard Coll., 600 U.S. 181, 206 (2023) (holding that the Equal Protection
Clause generally forbids race discrimination). Liberty doctrine, which finds its home in provisions such
as the Due Process Clause of the Fourteenth Amendment, forbids the government from interfering with
individuals’ conduct in certain ways, even if that interference is nondiscriminatory. See, e.g., Pierce v.
Soc’y of Sisters, 268 U.S. 510, 524, 535 (1925) (holding that the Due Process Clause generally forbids
interfering with individuals’ right to make decisions about the education of their children). As a
theoretical matter, this Article draws a distinction between equality and liberty interests. Theories of
equality generally suggest that individuals have an interest in not being discriminated against in certain
ways. See Frederick Mark Gedicks, An Unfirm Foundation: The Regrettable Indefensibility of Religious
Exemptions, 20 U. ARK. LITTLE ROCK L.J. 555, 568 (1998). Theories of liberty generally suggest that
individuals have an interest in engaging in certain forms of conduct without government interference,
regardless of whether that interference is discriminatory. See id.
These distinctions between liberty and equality are unstable and, at times, illusory. As a doctrinal
matter, courts have long protected people by fusing both equality and liberty doctrine. “Equal liberty”
claims under the Fourteenth Amendment offer one example. See, e.g., Obergefell v. Hodges, 576 U.S.
644, 673–75 (2015) (protecting a right to same-sex marriage on both liberty and equality grounds). The
Court’s protection of liberty of conscience through equality doctrine, described infra Part I, offers
another. Liberty and equality interests often bleed together as a theoretical matter, too. See Deborah
Hellman, The Epistemic Function of Fusing Equal Protection and Due Process, 28 WM. & MARY BILL
RTS. J. 383, 384 n.4 (2019) (gathering a robust body of scholarship arguing that liberty interests can
illuminate the scope of equality interests and vice versa). One way that the government can discriminate,
for example, is by selectively protecting or denying liberty interests. See, e.g., Tandon v. Newsom, 593
U.S. 61, 62 (2021) (per curiam) (reasoning that laws are discriminatory where they treat “secular”
conduct more favorably than “religious” conduct).
While the distinction between liberty and equality is unstable, this Article draws it to help clarify the
conscience-related and gender-related rights jurisprudence it discusses. Even if liberty and equality are
not distinct, both courts and scholars often invoke the supposedly distinctive nature of liberty and
equality to help justify differential protection of conscience-related and gender-related rights.
Employing the language of liberty and equality, and its associated doctrine and theory, is thus necessary
to evaluate these justifications.
2. See Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 231 (2022).
3. Although the majority in Dobbs claimed that its decision had no implications for these other rights,
see id. at 262 (calling such concerns “unfounded”), its reasoning plainly imperils them. See Reva
B. Siegel, Memory Games: Dobbs’s Originalism as Anti-Democratic Living Constitutionalism—and
Some Pathways for Resistance, 101 TEX. L. REV. 1127, 1182 (2023) (explaining that Dobbs’s narrow
approach to substantive due process threatens the rights to interracial marriage, contraception, same-sex
intimacy, and same-sex marriage). Dobbs adopted a backward-looking history-and-tradition approach to
substantive due process that deems rights fundamental only where, described at a low level of
generality, they are “deeply rooted in history.” Dobbs, 597 U.S. at 257. This narrow test suggests that
previous decisions were wrong to recognize substantive due process liberty rights to interracial
marriage, contraception, same-sex intimacy, and same-sex marriage. While each of those rights has a
claim to being deeply rooted at a higher level of generality—e.g., a right to marry—such rights have less
of a claim when viewed at a lower level of generality—e.g., a right to marry someone of a different race
2025] GENDERED LIBERTY 709
