Judge blasts ‘woke’ colleagues in case of Christian women’s spa forced to allow naked men

Ninth Circuit Judge Lawrence VanDyke issued a sharply worded dissent this week, accusing fellow judges of forcing a Christian-owned women’s nude spa in Washington state to admit men exposing their genitalia. He accused his colleagues of sacrificing constitutional protections and women’s privacy in the case.

The dispute grew out of a long-running fight over Olympus Spa, a traditional Korean women-only nude spa in Seattle, after Washington state moved against its policy barring men from its facilities.

The spa says its rule protects female privacy in a setting where patrons are fully or partly unclothed and reflects the religious convictions of its owners.

VanDyke, dissenting from the court’s decision against rehearing the case, wrote that the spa’s owners did not want “swinging dicks” in their business and said women and girls at the spa, including some as young as 13, could be exposed to male genitalia under the ruling, the Daily Caller reported.

Other Ninth Circuit judges publicly criticized his wording.

More than two dozen judges rebuked VanDyke in separate statements, Bloomberg Law reported.

Senior Judge M. Margaret McKeown, joined by 26 colleagues, wrote that the legal system “is not a place for vulgar barroom talk” and said the dissent ignored principles of dignity and civility, demeaned the court and undermined public trust.

Judge John B. Owens, joined by Judge Danielle Forrest, added a one-line statement saying, “We are better than this.”

VanDyke answered that criticism by accusing colleagues of “selective outrage” and saying they showed greater sensitivity to harsh words than to what he called government trampling on religious liberty and exposing women and girls to male genitalia.

He also referred to “woke judges’ willingness” to sacrifice constitutional rights on the altar of “social progress.”

Writing for his Substack column, The New Digest,  Adrian Vermeule defended the judge. He wrote, “Unlike Judge VanDyke’s colleagues, I don’t think the real objection to his language is that it is ‘uncivil.’ Sometimes the demand for ‘civility’ is just an attempt to make certain subjects undiscussable that very much ought to be discussed; and the skillful rhetorician, on the bench or elsewhere, knows when to follow the politesse of society and when to break from it for effect.”

VanDyke wrote the dissent after the Ninth Circuit declined to rehear a divided three-judge panel’s ruling against Olympus Spa. That panel had upheld the Washington State Human Rights Commission’s enforcement of the state’s anti-discrimination law, finding that applying the law to the spa did not unlawfully violate the spa’s First Amendment rights to free speech, religious exercise or association.

The case dates back to February 2020, when local trans activist Haven Wilvich filed a complaint with the state commission after Olympus Spa denied a membership application. The commission later served the spa with a discrimination complaint and moved to enforce the state law.

In a 2022 federal lawsuit, the spa said the state had violated its free speech and religious rights and had compelled speech by requiring the business to remove references to biological women from its website and require staff to undergo inclusivity training.

The spa’s owners, Myoon Woon Lee and Sun Lee, say their Christian beliefs forbid unmarried men and women from seeing each other naked. Court filings also said some employees were uncomfortable washing the bodies of naked men for the same reason.

The business said women in the spa are in a vulnerable position while unclothed and raised concerns that female patrons, including minors, could be exposed to male sexual organs.

U.S. District Judge Barbara Jacobs Rothstein ruled against the spa in June 2023, upholding the state commission’s order and dismissing both the religious liberty and compelled speech claims. She gave the business 30 days to amend its complaint.

A divided Ninth Circuit panel later upheld that ruling. Writing for the majority, McKeown said the case did not turn on rewriting the statute and added that the spa might have other avenues to challenge the enforcement action.

Judge Kenneth K. Lee, a Trump-appointee on that three-judge panel, dissented and said Washington state had distorted a law enacted to protect women’s rights. After the full Ninth Circuit declined to rehear the case, four other Trump-appointed judges also wrote separately, objecting to that refusal.

VanDyke, confirmed in 2019, has previously drawn attention for dissents that departed from conventional judicial style.

He recently called the court a “Circuit of Wackadoo” in another opinion. The Daily Caller also reported that some colleagues objected last year after he released a video dissent in a gun case using firearms in his chambers to challenge the majority’s reasoning.