The Supreme Court is being urged to hear a religious liberty case about a Korean spa in Washington state that wishes to keep its facility female only, in a dispute that made headlines over a judge’s crude description of what the spa owners wanted to avoid women seeing at their establishment.
Alliance Defending Freedom, a conservative law firm, and Pacific Justice Institute filed a petition to the high court asking the justices to review a lawsuit against the state of Washington brought by the Olympus Spa, which offers traditional Korean treatments that include communal nude areas and therefore only admits and hires women. After the owners of the spa cited religious beliefs, officials from the Evergreen State threatened to prosecute them over refusing to allow in men, leading to the lawsuit over the alleged violation of the spa owners’ First Amendment religious rights.
“Because nudity is not incidental but central to the services the Spa provides, and because the Spa’s owners hold sincere Christian convictions that men and women should not be unclothed together outside of marriage, Olympus Spa has always admitted only female patrons and hires only female employees. That policy protected the privacy of women and girls for more than 20 years,” said the conservative groups’ petition to the Supreme Court on behalf of the spa.
“Then, in 2020, a single complaint — from a person with no record of ever having visited the Spa — set Washington State’s enforcement machinery in motion. Resolving that its views on gender identity must override a centuries-old cultural practice and deep religious conviction, the State turned its enforcement power against a Korean family’s small business,” the groups continued.
The two conservative legal groups argued to the Supreme Court in their petition that the justices should review whether Washington forcing the spa to admit biological males into female-only spaces violates the free exercise clause of the First Amendment, and whether “a policy that differentiates based on anatomy discriminates ‘based on gender identity or transgender status.’”
“A family of Christian immigrants — who fled Korea hoping for greater religious freedom — now stand to lose their livelihood or the ability to practice their faith because the State of Washington insists on dictating that males who identify as women be admitted into a female-only nude spa,” the groups’ petition said.
Lawyers for the groups backing the Olympus Spa have stated that the case comes down to whether women’s spaces may remain exclusive to biological women.
“It is an abuse and perversion of the public accommodation laws to give biological males access to the intimate spaces of unconsenting females in a state of full or partial undress. No woman or girl should have to give up her right to bodily privacy and safety to avoid offending a man. That’s wrong, and it puts women and girls in harm’s way,” PJI chief counsel Kevin Snider said.
The spa owners lost at both the federal district court and federal appeals court levels and are now taking their case to the Supreme Court and hoping the justices will take it up.
In the U.S. Court of Appeals for the 9th Circuit, a bitterly divided full court declined to review a three-judge panel’s decision to side with Washington and toss the case. The ruling from the full bench included an unorthodox dissent from U.S. Circuit Judge Lawrence VanDyke, an appointee of President Donald Trump, in which he stated that the case was about the state allowing “swinging d***s,” referring to male genitalia, in women’s spaces, such as spas.
“This is a case about swinging d***s. 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,” VanDyke wrote.
VanDyke’s dissent was criticized by his fellow jurists on the bench, but he insisted the crudity of the opinion was necessary to illustrate how “jarring” the result of the court’s ruling is.
PARENTAL RIGHTS ISSUES ARE HEATING UP AT THE SUPREME COURT
“You may think that swinging d***s 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,” VanDyke said in his dissent.
The Supreme Court will return to holding closed-door conferences to weigh which cases to take up beginning on Sept. 28, and the high court’s next term will begin on Oct. 5, with oral arguments in a key climate change case. A decision on whether the Supreme Court will hear arguments in the case Olympus Spa v. Armstrong could come as soon as this fall.