Asserting the Religious Freedom of Your Customers: Free “Exercise” and the Curious Case of CHRO v. Edge Fitness

Abstract

Pending at the Connecticut Supreme Court is a dispute between Connecticut’s Commission on Human Rights and Opportunities (“CHRO”) and the fitness club chains Edge Fitness, LLC, and Club Camel, Inc. (“the Gyms”), that raises issues of national significance regarding public accommodations, sex and gender discrimination, and religious freedom. In a brief filed in CHRO v. Edge Fitness, LLC, several religious organizations have defended the lower court’s remarkable religious freedom theory for upholding the Gyms’ practice of offering women-only exercise spaces. They contend that Connecticut’s Act Concerning Religious Freedom (“CACRF”) —the analogue of the federal Religious Freedom Restoration Act (“RFRA”)—compels an exception to Connecticut’s antidiscrimination statute to allow businesses like the Gyms to segregate customers by sex in order to accommodate a subset of customers whose religious beliefs favor the segregation of persons by sex under the banner of “modesty.” In other words, under their theory, government not only must grant antidiscrimination exemptions to accommodate businesses’ religious beliefs; it must also grant exemptions to accommodate nonreligious businesses’ own efforts to accommodate religious persons. Given the potential breadth of such religion-by-proxy claims, upholding the lower court’s religious freedom rationale would have significant implications for antidiscrimination law in Connecticut, as well as the many jurisdictions that share Connecticut’s tension between antidiscrimination statutes and religious freedom statutes like the CACRF.

Keywords: RFRA, CACRF, religious freedom, free exercise, sex, gender, privacy, modesty