Judge VanDyke: "This is a case about swinging dicks." Ninth Circus

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The Ninth Circuit denied rehearing en banc Olympus Spa v. Armstrong. Judge VanDyke wrote the lead dissent, which begins this way:

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.

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As you could imagine, this line infuriated Judge VanDyke's colleagues.

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):

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.

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