Getting a nude massage seems pretty intimate. But that doesn’t mean a female patron of a spa has the right to avoid naked people with penises while getting a nude massage, according to a federal judge. Avoiding transgender people with penises while naked is not protected by the constitutional freedom of intimate association, according to progressive Judge Barbara Rothstein, in Seattle. That’s what she ruled yesterday in her opinion in Olympus Spa v. Armstrong:
The Olympus Spa is a Korean spa “specifically designed for women,” and the services offered there “are closely tied to the Korean tradition,” meaning patrons are “require[d] … to be naked” during certain services. The facilities include “a bath area containing multiple whirl-pools, a traditional Korean body-scrub service area, standing showers, sit-down showers, a steam room, and a dry sauna.” As noted, patrons are “typically fully naked” while utilizing these areas and thus “have visual access” to other nude patrons. Nor is nudity optional. It is allegedly “required for certain procedures called ‘Seshin'” pursuant to Korean tradition. According to Plaintiffs, female patrons receiving a Korean body scrub “must do so unclothed,” and all employees who provide those scrubs (“ddemiri”) are women.
Olympus Spa maintains a “female-only policy” under which it restricts admission to women—or, more specifically, individuals who “physically present[ ] in the nude as … female.” It apparently advertised this entry policy on its website with the following language: “Biological women are welcome[.] It is the policy of Olympus Spa not to discriminate on the basis of race, color, national original, sex, age, or disability in its programs or activities, as required by applicable laws and regulations.” Olympus Spa thus admits transgender women only if they have “gone through post-operative sex confirmation surgery.” Plaintiffs attribute the policy to their “traditional, theologically conservative” Christian values. They believe in “modesty as between the sexes” and “hold the conviction that a male and female should not ordinarily be in each other’s presence while in the nude unless married to each other.” See also Dkt. No. 1-2 at 4 (“Women are in a vulnerable position when they are unclothed and/or having treatment while unclothed and we seek to ensure that they feel their privacy and rights are respected. This is a biblical principle from 1 Peter 3:7, 1 Timothy 3:1-7, 1 Timothy 5:2, Phillipians 4:3, Genesis 1:27, Proverbs 31:17, Phillipians 2:3 and more.”). The Jane Doe Employees accordingly refuse to perform massages or body scrubs on naked men. And Jane Doe Patron, a Christian “who frequently receives treatments at Olympus Spa,” likewise “believes that men and women should not be viewing each other’s naked bodies unless married to each other.” …
The Washington State Human Rights Commission decided that the spa’s policy violated Washington’s ban on gender identity discrimination in public accommodations, and Judge Rothstein ruled that this didn’t violate the Free Exercise Clause, Free Speech Clause, or the right of intimate association:
Here is the judge’s reasoning for rejecting the freedom of association claim:
In their final claim, Plaintiffs allege that enforcement of the WLAD against them “would require females … to remain in the presence of naked males” and therefore violates their “freedom protected by the Bill of Rights to selectively enter into and carry on intimate or private relationships—or refrain from such relationships.” … “To be exposed to the shocking and jarring visual of a penis while naked and to be viewed by someone who could become turgid due to viewing the female form would be an extreme offense and violative of the right to feel secure in one’s person and association.” …
The Supreme Court distinguishes between two constitutionally protected freedoms of association: the “freedom of intimate association” and the “freedom of expressive association.” The former involves the right “to enter into and maintain certain intimate human relationships”—relationships which “must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.” The freedom of intimate association “receives protection as a fundamental element of personal liberty.” On the other hand, the freedom of expressive association refers to the “right to associate for the purpose of engaging in those activities protected by the First Amendment—speech, assembly, petition for the redress of grievances, and the exercise of religion.” It is viewed “as an indispensable means of preserving other individual liberties.”
Plaintiffs raise an intimate association claim. Although the “precise boundaries of this type of constitutional protection” remain unmarked, the intimate relationships that have qualified for the protection include “marriage; the begetting and bearing of children; child rearing and education; and cohabitation with relatives.” This is not to suggest that intimate association is restricted to family matters. Rather, qualifying relationships “are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship.” The Court must conduct a “careful assessment” of the relationship’s characteristics to locate where it falls on a spectrum “from the most intimate to the most attenuated of personal attachments.”
The relationship between Olympus Spa and its customers clearly falls “outside of the category of relationships worthy of this kind of constitutional protection.” It is a business—not a private club with an exclusive membership. As such, Olympus Spa is open to the public and provides services to countless (female) strangers on a daily basis. The Supreme Court has for these reasons observed that “a large business enterprise” is the type of association that “seems remote from the concerns giving rise to th[e] constitutional protection.” Although Olympus Spa may not constitute a large enterprise, the analogy is still apposite: spa-goers “are not members of any organized association; they are patrons of the same business establishment. Most are strangers to one another, and the [spa] admits all [biological females] who are willing to pay[.]”
Plaintiffs emphasize Olympus Spa’s female-only exclusivity and female-oriented purpose. They likewise suggest that the business is sufficiently personal and private to warrant constitutional protection because “the state of being unclothed requires the most intimate of settings[.]”But this again elides a basic, controlling fact: Olympus Spa is a business that provides services to the public. And as was the case in Jaycees, Olympus Spa does not—”[a]part from … sex”—employ any criteria for judging patrons, who are routinely “admitted with no inquiry into their backgrounds.” …
The Court does not minimize the privacy concerns at play when employees are performing exfoliating massages on nude patrons. Aside from this nudity, though, there is simply nothing private about the relationship between Olympus Spa, its employees, and the random strangers who walk in the door seeking a massage. Nor is there anything selective about the association at issue beyond Olympus Spa’s “biological women” policy. The Court therefore has little difficulty concluding that the personal attachments implicated here are too attenuated to qualify for constitutional protection. Plaintiffs’ intimate association claim is dismissed.
Here is the judge’s reasoning for rejecting the free-exercise-of-religion claim:
As for their [Free Exercise Clause] claim, Plaintiffs observe that they “have the liberty to not only believe as they do about males and females in a state of undress, but they also have the right to freely exercise their religious rights, i.e., to act in accordance with their faith-based convictions.” Plaintiffs allege that the Commission’s enforcement of the WLAD against them, “which requires them to service nude males and females in the same rooms,” forces them “to choose between violating the law or their religious convictions.” This, according to Plaintiffs, imposes a substantial burden on the exercise of their religious beliefs. The Commission counters that the WLAD is a neutral law of general applicability and therefore does not run afoul of the First Amendment. The Court agrees with the Commission and dismisses this claim … .
Plaintiffs fail to plead—let alone plausibly—that the WLAD is anything but neutral. The law does not discriminate on its face, and it does not by its terms favor a particular religion or the non-exercise of religion. Nor have Plaintiffs alleged facts to suggest that the legislature was motivated by a masked intent to discourage religious exercise or discriminate against their religion. Plaintiffs have also not alleged that the Commission’s application of the WLAD in this case was motivated by any “clear and impermissible hostility toward the sincere religious beliefs that motivated [their] objection,” and the Court is unable to discern any facts in the record that would support such a claim … .
Plaintiffs attempt to raise a “hybrid rights” claim. In Smith, the Supreme Court excepted from rational basis review “hybrid situation[s]”—those cases that involve “not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press[.]”Plaintiffs accordingly wish to tether their free exercise claim to “either or both” of their remaining claims in the hopes that the Court will apply strict scrutiny to the WLAD. See San Jose Christian Coll. v. City of Morgan Hill (9th Cir. 2004) (“If … a law burdens the free exercise of religion and some other constitutionally-protected activity, there is a First Amendment violation unless the strict scrutiny test is satisfied[.]”). But a hybrid rights claim requires more than a bald allegation that a companion right is implicated or has been violated. “[T]o assert a hybrid-rights claim, a free exercise plaintiff must make out a colorable claim that a companion right has been violated—that is, a fair probability or a likelihood, but not a certitude, of success on the merits.” Put differently, a hybrid rights claim is not entitled to strict scrutiny analysis merely because it “combine[s] a free exercise claim with an utterly meritless claim of the violation of another alleged fundamental right[.]”For the reasons discussed below, Plaintiffs fail to allege a plausible free speech or free association violation. Neither of those claims, then, combines with their free exercise claim to create a viable hybrid rights claim. The Court dismisses Plaintiffs’ free exercise claim.
The court also rejected a free speech challenge:
Plaintiffs contend that the Commission required Olympus Spa to “remove language from its website that has a viewpoint that ‘biological women’ are females and distinct from males.” …
The law at issue here, however, is not a content-based speech restriction. The Commission correctly observes that the WLAD does not target speech—indeed, it says nothing at all about speech and does not purport to outlaw a particular idea, topic, message, or viewpoint. The WLAD instead regulates discriminatory conduct. It “imposes a flat ban” on discrimination in places of public accommodation—”one that is applied without regard to [the] content” of a business’s message. And as the Supreme Court has repeatedly observed, “[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.”
The compelled speech to which Olympus Spa points is “plainly incidental” to the WLAD’s regulation of discriminatory conduct. The WLAD bars Olympus Spa from denying services to customers based on sexual orientation and, in this regard, it incidentally burdens Olympus Spa’s speech by prohibiting advertisement of discriminatory entrance policies (e.g., one that permits only “biological women”). But that does not convert the WLAD into a content-based regulation. To borrow an analogous example from the Supreme Court, “Congress … can prohibit employers from discriminating in hiring on the basis of race,” and “that this will require an employer to take down a sign reading ‘White Applicants Only’ hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct.” Rumsfeld v. FAIR …
