Judge VanDyke: "This Is a Case About Swinging Dicks."

Key Takeaways

• Ninth Circuit denied rehearing en banc in Olympus Spa case.
• Judge VanDyke used vulgar language in dissent.
• Majority upheld state law allowing transgender access to women-only spa.
• Dissent argues law violates religious liberty and isn’t neutral.
• Debate underscores tension between judicial decorum and free speech.

Summary

The Ninth Circuit refused to rehear en banc the Olympus Spa v. Armstrong case, leaving the panel majority’s decision intact. Judge VanDyke’s lead dissent opened with a graphic description of "swinging dicks," sparking a sharp rebuke from 28 of his colleagues over courtroom decorum. The dispute centers on Washington’s law requiring a women‑only, Christian‑owned Korean spa to admit a transgender patron, raising First Amendment and religious‑freedom questions. The dissent warns the ruling could prompt a Supreme Court petition.

Pulse Analysis

The Olympus Spa dispute illustrates a broader clash between state‑level gender‑identity protections and the constitutional right to free exercise of religion. Washington’s law, designed to prevent discrimination against transgender individuals, forces a Christian‑owned, women‑only Korean spa to admit a patron who identifies as female but was assigned male at birth. Critics argue the statute overreaches, treating a private religious business as a public accommodation and thereby subjecting it to regulations that conflict with sincerely held beliefs. Legal scholars note that the case revives the Smith doctrine debate, questioning whether a law that is facially neutral can nonetheless target religious practices when applied to small businesses.

Judge VanDyke’s dissent, infamous for its blunt phrasing, underscores a growing willingness among some jurists to use vivid language to draw attention to perceived constitutional violations. While his colleagues condemned the rhetoric as unprofessional, the underlying legal argument remains potent: the statute may not be a "neutral law of general applicability" if it exempts secular entities while burdening religious ones. This distinction could become a pivotal point if the case reaches the Supreme Court, where the balance between anti‑discrimination goals and religious liberty protections is continually renegotiated.

The internal conflict over judicial decorum also signals an evolving culture within the federal judiciary. As courts grapple with high‑profile social issues, the line between substantive legal critique and stylistic expression becomes increasingly contested. Observers suggest that the Ninth Circuit’s handling of this case may influence how lower courts address similar First Amendment challenges, potentially shaping the legal landscape for religious businesses nationwide. The outcome could set a precedent for how courts reconcile evolving societal norms with entrenched constitutional rights.