The Ninth Circuit denied rehearing en banc Olympus Spa v. Armstrong [opinion is attached]. Judge VanDyke wrote the lead dissent, which begins this way:
Judge McKeown issued a statement that was joined by twenty-eight members of her Court (the Ninth Circuit has fifty-one total active and senior status judges):
Judge Tung also issued a dissent, which was joined by Judges Nelson, Bumatay, and VanDyke.
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As you could imagine, this line infuriated Judge VanDyke's colleagues.This is a case about swinging dicks. 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 dicks 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.
Judge McKeown issued a statement that was joined by twenty-eight members of her Court (the Ninth Circuit has fifty-one total active and senior status judges):
Judges Owens and Forrest (a Trump appointee) issued a one sentence statement:McKEOWN, Senior Circuit Judge, joined by MURGUIA, Chief Judge, HAWKINS, S.R. THOMAS, GRABER, FLETCHER, PAEZ, BERZON, CLIFTON, BYBEE, and HURWITZ, Senior Circuit Judges, WARDLAW, GOULD, RAWLINSON, M. SMITH, CHRISTEN, NGUYEN, FRIEDLAND, MILLER, KOH, SUNG, SANCHEZ, H.A. THOMAS, MENDOZA, DESAI, JOHNSTONE, and DE ALBA, Circuit Judges, respecting the denial of rehearing en banc:
The American legal system has long been regarded as a place to resolve disputes in a dignified and civil manner or, as Justice O'Connor put it, to "disagree without being disagreeable."1 It is not a place for vulgar barroom talk. Nor is it a place to suggest that fellow judges have "collectively lost their minds," or that they are "woke judges[]" "complicit" in a scheme to harm ordinary Americans. That language makes us sound like juveniles, not judges, and it undermines public trust in the courts. The lead dissent's use of such coarse language and invective may make for publicity or entertainment value, but it has no place in a judicial opinion. The lead dissent ignores ordinary principles of dignity and civility and demeans this court. Neither the parties nor the panel dissent found it necessary to invoke such crude and vitriolic language. Decorum and collegiality demand more.
Judge VanDyke responds to McKeown's statement:Regarding the dissenting opinion of Judge VanDyke: We are better than this.
Some people suggest that Judge VanDyke is "auditioning" for the Supreme Court. Before this opinion, I could have told you that he most certainly is not. Watch my interview with Judge VanDyke. After this opinion, you should have no doubts. He truly believes what he is writing, and uses his pen to advance his understanding of the law.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 dicks 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.
Sometimes "dignified and civil" words are employed to mask a legal abomination. Or, to put it in vernacular perhaps more palatable to my colleagues' Victorian sensibilities: "In law, what plea so tainted and corrupt, / But, being seasoned with a gracious voice, / Obscures the show of evil?"
Sometimes coarse and ugly words bear the truth. I coarsely but respectfully dissent from our court's willingness to leave this travesty in place.
Judge Tung also issued a dissent, which was joined by Judges Nelson, Bumatay, and VanDyke.
This case will be swinging to a cert petition near you.Let us be clear about what the law in Washington requires. Under its law, the State can disregard a small-business owner's Christian beliefs and force her familyrun Korean spa to allow a nude man (who claims to be a woman) into an intimate space reserved for its female patrons. Yet under that same law, private clubs embracing secular values can refuse entry to that man. Schools and cemeteries can refuse service to that man, too, so long as they are run by institutions deemed "sectarian." Thus, while the law purports to protect any Washington resident from so-called gender-identity "discrimination," the State's prohibition exempts some secular organizations and certain religious ones—it just does not exempt the small business in its exercise of its religious beliefs here. How is this at all a "neutral law of general applicability"? Employment Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872, 879 (1990). It is not. The panel's conclusion to the contrary—immunizing the law from any serious First Amendment scrutiny—should have been vacated. I dissent.
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