An Amusing Dissent to the 9th Circuit Has Progressive Judges Upset

Last May the 9th Circuit Court of Appeals ruled against a Korean spa in Washington state which had attempted to ban trans women. To be clear, this is a traditional Korean spa where everyone inside is naked. It’s owners are Christians who had maintained the same women-only policy for 20 years.

The Ninth Circuit Court of Appeals ruled on Thursday that a Christian-owned traditional women-only Korean spa in Washington can’t sue the state on First Amendment grounds for forcing it to open its doors to transgender women.

“We first conclude that the spa’s religious expression is only incidentally burdened,” wrote U.S. Circuit Judge Margaret McKeown, a Bill Clinton appointee, in the opinion…

The ruling spurred an especially bitter dissent from the Korean-born Circuit Judge Kenneth Lee, a Donald Trump appointee.

“The spa has maintained its entry policy for over twenty years without complaint,” Lee wrote in his dissent. “But when one person complained about the policy in early 2020, the government pounced.” He added that the regulatory agency that ordered the spa to include transgender women had “wielded its power to advance its own political agenda.”…

“Korean spas are not like spas at the Four Seasons or Ritz Carlton with their soothing ambient music and lavender aroma in private lounges,” he wrote. “Steeped in centuries-old tradition, Korean spas require their patrons to be fully naked, as they sit in communal saunas and undergo deep-tissue scrubbing of their entire bodies in an open area filled with other unclothed patrons.”

He added: “Now, under edict from the state, women — and even girls as young as 13 years old — must be nude alongside patrons with exposed male genitalia as they receive treatment. And female spa employees must provide full-body massages to naked pre-operative transgender women with intact male sexual organs.”

But that’s not the dissent being highlighted today. After losing at the 9th Circuit, the spa appealed and asked for a rehearing of the matter before the entire court. Yesterday that request was denied and Judge VanDyke wrote a dissent which is shocking and alarming some of his colleagues. In fact I’m going to have to bleep this out a bit.

This is a case about swinging d****. The Christian owners of Olympus Spa—a traditional Korean, women-only, nude spa—understandably don’t want them in their spa. Their female employees and female clients don’t want them in their spa either. But Washington State insists on them. And now so does the Ninth Circuit. You may think that swinging d**** shouldn’t appear in a judicial opinion. You’re not wrong. But as much as you might understandably be shocked and displeased to merely encounter that phrase in this opinion, I hope we all can agree that it is far more jarring for the unsuspecting and exposed women at Olympus Spa— some as young as thirteen—to be visually assaulted by the real thing. Sometimes, it feels like the supposed adults in the room have collectively lost their minds. Woke regulators and complicit judges seem entirely willing, even eager, to ignore the consequences that their Frankenstein social experiments impose on real women and young girls.

In response, 27 of the court’s 51 judges wrote a rebuke to Judge VanDyke:

VanDyke’s language “makes us sound like juveniles, not judges, and it undermines public trust in the courts,” they wrote. “Neither the parties nor the panel dissent found it necessary to invoke such crude and vitriolic language. Decorum and collegiality demand more.”

Another pair of judges on the court simply wrote, “Regarding the dissenting opinion of Judge VanDyke: We are better than this.”

Judge VanDyke has since responded to his fellow judges:

Finally, I’ll respond briefly to my colleagues’ discomfort with how I’ve written this dissent. My distressed colleagues appear to have the fastidious sensibilities of a Victorian nun when it comes to mere unpleasant words in my opinion, yet exhibit the scruples of our dearly departed colleague Judge Reinhardt when it comes to the government trampling on religious liberties and exposing women and girls to male genitalia. That kind of selective outrage speaks for itself.

The public deserves a court that is actually trustworthy. We should be earning that trust, not demanding it like petty tyrants. Yes, the introduction to this dissent intentionally uses indecorous language. But that is quite literally what this case is about. Male genitalia is precisely (and only) what the Spa, for religious reasons, objects to admitting into its female-only space. The fact that so many on our court want to pretend that this case is about anything other than swinging d**** is the very reason the shocking language is necessary. The panel majority uses slick legal arguments and deflection to studiously avoid eye contact with the actual and horrific consequences of its erroneous opinion. The “ordinary Americans” affected by the majority’s opinion don’t have that luxury. Squirm as we might, I think it’s only fair for our court to have a small taste of its own medicine.

He makes a great point and I suspect that is what upsets his colleagues more than any alleged concern about undermining the public trust.

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