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Tuesday the Supreme Court ruled 7-2 that the PGA Tour is required
by the Americans with Disabilities Act to let
disabled golfer
Casey Martin use a golf cart in qualifying and in tournament play,
even though it would be against the rules for a nondisabled golfer
to use a cart.
The
majority opinion, written by Justice Stevens, said the case
presented two questions: (1) Whether tournament golf was a "public
accommodation" for Mr. Martin, and, if so, then (2) Whether
allowing him to use a cart would "fundamentally alter the nature"
of the game.
Justice Stevens
answered the first question "Yes," rejecting the PGA's
argument that it is only for spectators that reasonable accommodations
must be made at tournaments. He answered the second question "No,"
because "the essence of the game has been shot-making."
Here he rejected the PGA's claim that being able to withstand the
fatigue of walking the course was also part of the game.
The
dissent was written by Justice Scalia and joined only by Justice
Thomas. Scalia gleefully skewers the majority, and it is depressing
that Chief Justice Rehnquist and Justices O'Connor and Kennedy did
not join him, if only for the fun he has at the majority's expense.
Justice Scalia
concludes that it is "quite incredible" that the majority
should pronounce Mr. Martin to be a "customer" of the
tour. Scalia makes an apt analogy to baseball: "professional
ballplayers participate in the games, and use the
ballfields, but no one in his right mind would think that they are
customers of the American League or Yankee Stadium"
(Scalia's emphasis). Likewise, the majority's conclusion that trying
out for the tour is also covered by the ADA is wrong, says Scalia,
because it "is no more a 'privilege' offered for the general
public's 'enjoyment' than is the California Bar Exam."
But Justice
Scalia is just warming up for his attack on the majority's conclusion
that having to walk the course is not part of the "essence
of the game." In a good distillation of his jurisprudence,
Scalia declares that "the rules are the rules." These
rules "are (as in all games) entirely arbitrary, and there
is no basis on which anyone — not even the Supreme Court of the
United States — can pronounce one or another of them to be 'nonessential'
if the rule maker (here the PGA Tour) deems it to be essential."
Thus, concludes Scalia, "the Court should decline to answer
this incredibly difficult and incredibly silly question."
The majority
had also concluded that allowing a cart for one player was no big
deal because, even though it might make a difference in a tournament's
outcome, so might a "lucky bounce" or "pure chance."
"I guess," writes Justice Scalia, "that is why those
who follow professional golfing consider Jack Nicklaus the luckiest
golfer of all time, only to be challenged of late by the phenomenal
luck of Tiger Woods" (again, Scalia's emphasis). Nor
is Scalia persuaded by the majority's argument that letting Mr.
Martin use a cart will only "place him on par (so to speak)
with other competitors." Writes Scalia:
<blockquote>One
can envision the parents of a Little League player with attention
deficit disorder trying to convince a judge that their son's disability
makes it at least 25% more difficult to hit a pitched ball. (If
they are successful, the only thing that could prevent a court order
giving the kid four strikes would be a judicial determination that,
in baseball, three strikes are metaphysically necessary, which is
quite absurd.) </blockquote>
Justice Scalia
ends his dissent with this sentence: "The year was 2001, and
'everybody was finally equal,'" citing to Kurt
Vonnegut's short story "Harrison Bergeron." This is
a bit esoteric, and I have asked NRO to include a
link to this masterpiece, which begins, "The year was 2081,
and everybody was finally equal." So Vonnegut, no conservative,
was more prescient than he thought by eighty years. In his short
story, which you really should read, the "United States Handicapper
General" (to be played by Janet Reno in the movie version)
is in charge of making sure that people are equal not only "before
God and the law" but "every which way" — even if
that requires putting weights on good dancers, masks on beautiful
women, and noisemakers into the ears of smart people.
Justice Scalia's
dissent is very persuasive, but a little misleading insofar as he
must emphasize the blame of the majority and minimize the fault
of Congress in "mak[ing] a muddle of the ADA." The Court
certainly made things worse this week, but the ADA was a muddle
to begin with. Much has been made of the ADA's economic costs for
private sector, but the Casey Martin decision highlights its broader
social costs and irrationality as well.
Ignore the
ADA for a moment, and consider whether Casey Martin ought to be
allowed to compete in PGA tournaments. That question is a lot of
fun to argue about. Is golf a game simply about how well one can
hit a ball with a stick, or is it a sport in which stamina is an
important element? Does the fact that college players have to carry
their own clubs and seniors get to ride in carts help one side of
the argument or the other? Even if it might be generally desirable
to require some level of physical fitness among professional golfers,
isn't the PGA being petty and mean-spirited by refusing to accommodate
an attractive competitor like Mr. Martin? Or is it the nature of
sport — and one of its great attractions — to be ruthlessly rule-minded
and unforgiving? This is the stuff of great bull sessions and barroom
arguments.
But these questions
obscure a more fundamental issue: Who decides? Who can best determine
the rules of tournament golf — the Professional Golfers Association
or the federal government? There can be only one answer to that
question.
Similarly,
if you are a dentist and have an HIV-positive patient, who should
decide whether it is safer for you to fill the tooth in your office
or in the hospital — you or the federal government? If you run a
fire department, or police department, or trucking company, or airline,
who decides whether it is safe to have one-eyed firemen, policemen,
truck drivers, and pilots — you or the federal government? As we
all know, the list of questions like this to which the courts have
answered, "The federal government," can be made as long
as you like.
Now, it may
well be that in some of these cases the courts read the statute
wrong, but the fact of the matter is that the ADA is so badly, broadly,
and vaguely written that horror stories like this are inevitable.
Whether the fault is mostly the courts' or mostly Congress's is
now beside the point. Only Congress can fix it, and it should.
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