On March 12, 2026, the U.S. Court of Appeals for the Ninth Circuit denied en banc review in Olympus Spa v. Armstrong, No. 23-4031 — and in doing so, let stand a ruling that forces a Christian-owned, women-only Korean spa in Washington State to admit naked biological males into its all-female facilities. The case has now exploded into national news, not because of the court’s predictable outcome, but because of what Judge Lawrence VanDyke wrote in dissent.
What the Ninth Circuit Actually Did
Olympus Spa is a traditional Korean spa in Washington State, women-only by design, where clients receive services in the nude. The owners are Christian and Korean-American. Their entire business model and religious identity are built around providing a single-sex space for women.
The trouble started when a transgender complainant contacted the spa and was turned away. That complaint landed with the Washington State Human Rights Commission (WSHRC), which investigated the spa for violating the Washington Law Against Discrimination (WLAD), RCW 49.60 — a statute that bars discrimination based on gender identity in public accommodations.
Olympus Spa sued, raising First Amendment claims: free exercise of religion, freedom of speech, and freedom of association. A panel of the Ninth Circuit — Judges McKeown and Gould in the majority, Judge Lee dissenting — ruled against the spa in May 2025. The panel held that none of those constitutional protections shield Olympus from WLAD compliance. The amended opinion issued on the same day as the en banc denial, March 12, 2026. The spa has stated it will petition the Supreme Court for certiorari.
VanDyke’s Opening Line Heard Around the Country
Judge VanDyke dissented from the en banc denial, and he opened with nine words that stopped the legal internet cold:
“This is a case about swinging dicks.”
He continued:
“The Christian owners of Olympus Spa, a traditional Korean women-only nude spa, understandably do not want them in their space. Their female employees and female clients do not want them in their spa either. But Washington State insists on them, and now so does the Ninth Circuit.”
VanDyke anticipated the objection and answered it directly:
“You may think that swinging dicks should not 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 can all agree that it is far more jarring for the unsuspecting and exposed women at Olympus Spa, some as young as 13, to be visually assaulted by the real thing.”
That’s the point. The language is intentionally blunt — because the reality being laundered through polished legal prose is blunt. My read is that VanDyke made the right call.
Twenty-Seven Colleagues Clutch Their Pearls
The reaction from inside the Ninth Circuit was swift. Approximately twenty-seven judges issued a concurring statement condemning VanDyke’s word choice. Their rebuke leaned on Justice Sandra Day O’Connor:
“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. 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 the scheme to harm ordinary Americans.”
VanDyke’s reply to that rebuke is worth quoting in full:
“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 nearly departed colleague Judge Reinhardt when it comes to the government trampling on religious liberties and exposing women and girls to male genitalia. This kind of selective outrage speaks for itself.”
That is a devastating sentence. Reinhardt was the Ninth Circuit’s most reliably liberal vote for nearly four decades — frequently reversed by the Supreme Court, and notorious for sweeping rulings that subordinated religious objectors to state power. VanDyke is saying his colleagues are squeamish about crude language but entirely comfortable with that legacy. He’s right.
Shakespeare, Slick Arguments, and the Real Issue
VanDyke closed with a passage the legal world will not soon forget. He accused the panel majority of using verbal sleight-of-hand to avoid confronting what the ruling actually does:
“The panel majority uses slick legal arguments and deflection to studiously avoid eye contact with the actual and horrific consequences of its erroneous opinion.”
Then, addressing the court’s preference for genteel language over honest description, he quoted The Merchant of Venice, Act III, Scene 2:
“In law, what plea so tainted and corrupt, but being season’d with a gracious voice, obscures the show of evil?”
And concluded: “Sometimes coarse and ugly words bear the truth. I coarsely but respectfully dissent from our court’s willingness to leave this travesty in place.”
Bassanio’s line in Shakespeare goes to the heart of VanDyke’s entire argument: dignified courtroom language can dress up an abomination and make it look respectable. That is precisely what happened here.
Where This Goes Next
I expect Olympus Spa to file a cert petition, and I think the Supreme Court may well take this case. The fact pattern is stark: a Christian, women-only, nude-service spa being compelled by state law to admit biological males — with girls as young as thirteen present. That is the kind of concrete, sympathetic vehicle the Court has historically favored when it wants to draw a clear line on religious liberty and the limits of anti-discrimination statutes.
Washington State is now run by Governor Bob Ferguson — my former classmate from NYU Law School — and his administration is the force pressing this policy. The attention VanDyke’s dissent has generated, including reactions from prominent public figures like Elon Musk, will only amplify the pressure on the Court to weigh in. When ordinary Americans can see clearly what a ruling does, that is how real change happens.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.