Contraceptives and gender discrimination

Scarberry, Mark Mark.Scarberry at
Sat Feb 11 17:35:36 PST 2012

Of course the RFRA applies to the federal government, not to the employer or employee. The employer can complain if the government creates a serious enough burden on religious exercise. The employee similarly could complain if the government created a serious enough burden on the employee's religious exercise. But an employer isn't subject to RFRA or to the First Amendment; if the employer fails to accommodate the employee's religious exercise, then there is neither a RFRA nor a 1st Am issue. (There could be a title VII religious discrimination issue of whether a sufficient accommodation was offered, but failure to pay for an employee to engage in religious activity would not, I think, violate Title VII.) The govt also does not burden the employee's religious exercise simply by not forcing the employer to facilitate the employee's religious exercise. That way lies madness, or rigid statism, by making any action or inaction by anyone into the govt's action. And then in any event there would be the question whether the use of contraceptives or the obtaining of a tubal ligation etc. are matters of religious exercise.

If we move away from religious freedom issues, I suppose there could be a claim that a failure to provide these drugs and services on a free basis to women is gender-based discrimination. We could discuss Title VII for purposes of that issue, though it seems to me that employers generally do not provide free drugs and medical services to men.

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

-----Original Message-----
From: conlawprof-bounces at [mailto:conlawprof-bounces at] On Behalf Of Marci Hamilton
Sent: Saturday, February 11, 2012 4:45 PM
To: Walsh, Kevin
Cc: Con Law Prof list
Subject: Re: Contraceptives and gender discrimination

To whom does RFRA apply in this case?  The religious employer or the religious employee who is not of the same faith?  


On Feb 11, 2012, at 7:13 PM, "Walsh, Kevin" <kwalsh at> wrote:

> If this "we" includes Congress then the RFRA has something to say about this.
> On wFeb 11, 2012, at 7:07 PM, "John Bickers" <bickersj1 at> wrote:
>> I do not believe that, outside of the ministerial exception, we have 
>> generally allowed a religious exemption from employment rules under 
>> the principle that the employer should not be required to do acts 
>> forbidden by their religion
To post, send message to Conlawprof at To subscribe, unsubscribe, change options, or get password, see

Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.

More information about the Conlawprof mailing list