Guest Opinion by Kate Hartley, attorney for the Pacific Justice Institute
The legal world experienced a major ruffling of feathers after the recent release of a Ninth Circuit Court of Appeals opinion involving a Christian-owned Korean spa in Washington, Olympus Spa v. Armstrong. Dissenting judge Lawrence VanDyke exuded frustration with his colleagues’ rampant hypocrisy for their refusal to recognize the religious rights of a traditional Korean nude spa to keep their establishment for women only.
When a man pretending to be a woman tried to enter the spa and was refused, Washington state bureaucrats heavily fined Olympus Spa. The spa owners sought relief through the court system and their case eventually made its way to the Ninth Circuit Court of Appeals. After oral argument, the Ninth Circuit held that the state’s anti-discrimination law does not sufficiently burden the spa’s First Amendment religious rights.
The spa owners petitioned the court for a rehearing, and it was denied. Enter Judge VanDyke’s now infamous PG-13 dissent, which boldly indicts the Washington state agency and his fellow judges for allowing women and girls to be forced to be naked alongside those with exposed male genitalia–all for the sake of a political agenda. is dissent states at the beginning:
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.
Judge VanDyke goes on to say that the shock of his own language is nothing compared to the shock that should occur related to the forced exposure of women and girls to male genitalia and “trampling on religious liberties.” He then follows up with well-reasoned arguments as to the First Amendment constitutional rights of the spa that are ignored by the majority of the Ninth Circuit.
His opinion not only provides the desired shock and awe to this important situation and case, but also to the concept of text versus policy related to constitutional law. Does the text of the Constitution mean exactly and only what it says? Or is it a living document that can grow with emerging policy trends?
From its inception, our country has placed high value on religious freedom and over the years this concept has been tested in ways we never could have predicted. The text of the U.S. Constitution strongly protects religious freedom and should do so despite any emerging trend that seeks to be in tension with it.
We are also a country with respected separation of powers. Judges cannot promote policies from the bench, or allow desired policy to override clear constitutional principles, and Judge VanDyke is rightly fuming by watching his colleagues do exactly that.
The First Amendment’s Free Exercise Clause does not allow the government to interfere with individuals’ rights to practice their religion, even if those individuals are business owners. The Washington law in question in this case allows for exemptions, and an exemption should be provided precisely so that religious people such as the owners of Olympus Spa can continue to freely practice their religion despite the state law mandate not to discriminate based on gender identity.
Yet, the Ninth Circuit has strayed from constitutional text and promoted a policy that is inconsistent with that text. This is a fundamental problem in our judicial system and Judge VanDyke rightly advocates to end this misapprehension of the law.
Olympus Spa is represented by the Pacific Justice Institute and plans to petition the U.S. Supreme Court.
