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Jewish World Review June 5, 2001 / 15 Sivan, 5761

John Leo

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Consumer Reports


Duffers in the court

The Supremes shouldn't bend rules for a disabled golfer


http://www.jewishworldreview.com -- AT first glance, the Supreme Court's 7 to 2 ruling in the Casey Martin suit seems perfectly reasonable, even obvious. Martin is a good professional golfer. He can make the shots, but because of a degenerative condition in his right leg, he can't walk the course during tournaments, as the rules of the Professional Golf Association tour require. Should he be allowed to ride along in a golf cart, while his able-bodied competitors have to walk? "From early on, the essence of the game has been shot-making," Justice John Paul Stevens wrote for the majority. Allowing a disabled golfer to ride between shots, he wrote, is just the sort of "reasonable modification" called for by the 1990 Americans with Disabilities Act. It does not fundamentally change the game as, for instance, widening the hole from three to six inches surely would.

What's wrong with that? Well, for one thing, we have the spectacle of seven judges explaining why famous golf pros like Jack Nicklaus and Arnold Palmer are simply wrong about the game of golf. Nicklaus, Palmer, and a parade of other stars testified that walking and the fatigue it brings are intrinsic to the game of golf at the tournament level. Not so, said Stevens, who also took the opportunity to explain to Nicklaus and Palmer that they were wrong too in feeling fatigued, since a lower court had found a professor somewhere who said that walking a course uses only 500 calories–"nutritionally . . . less than a Big Mac." Presumably Nicklaus and Palmer understand how foolish they were to feel tired, and how unimportant the concept of stamina is, now that Stevens has pointed it out.

This court is always accused of being too conservative. Heaven knows why. It's an unusually intrusive court. Here the justices insert themselves into someone else's game and explain what is arbitrary and what is not. But it is not the role of judges to decide whether baseball's balk rule or football's man-in-motion rule is essential or arbitrary. All rules in all games and sports are arbitrary, as Justice Antonin Scalia pointed out in dissent. That is the nature of games. If everything is arbitrary, on what basis can any court decide what is essential and what isn't? And in any case, as Nicklaus and Palmer said again and again, professional golfers deserve the right to set their own rules. In this case, the PGA set the rule against carts because it believes that walking the course as a show of stamina is necessary under championship conditions. By casually deciding that the PGA is wrong about its own game, the court opens up great room for other courts to tinker with other sports to advance their own notions of social justice. We will now have a great rush of litigation followed by more sports rules being bent or repealed by nonplayers who have the advantage of being judges.

This dubious process of dismantling the rules so that everyone can play is already under way. Shelby Wilson, a 6-year-old Oklahoma child with cerebral palsy, was allowed to use a walker while playing in a girls' softball league. An 11-year-old boy, Geoffrey Shultz, of Hemet, Calif., was allowed to play Pony League baseball on crutches to accommodate his cerebral palsy. In Oklahoma, 9-year-old Ryan Taylor was allowed to play in a soccer league while using a walker. During games, Taylor was essentially stationary, placed about 10 feet from the goal. The sense of inclusion is inspiring, but 9-year-olds are fairly large and quick, and a collision could do some damage, particularly if one collidee is on crutches or using a walker. And having a vulnerable, disabled child in the middle of a soccer match obviously changes the nature of the game. The Taylor boy was allowed to play, then suspended in mid-season for safety reasons. But compassion and access won out over common sense and safety concerns after a judge canceled the suspension for the final game. Officials allowed Taylor to play the entire next season because the league preferred to avoid the cost and trouble of litigation. This case is the likely model of future attempts to change the rules of sports by threatening legal action.

To produce a decision favorable to Martin, the court had to cut a legal corner or two. Under Title III of the ADA, reasonable changes for disabled Americans are called for in public accommodations–places where the public goes for recreation or exercise. As Scalia pointed out in his dissent, Congress had customers in mind, not members of private associations like Casey Martin and Tiger Woods. "Golf course" is specifically mentioned in the law, and italicized by Stevens, but that refers to the right of disabled persons to play themselves or to have access to watch tournaments. It does not refer to professional athletes being watched. The court's casual distortion of the intent of Congress and the plain meaning of the ADA was a legal trick by a willful court that does what it pleases. Scalia's argument on this point was powerful and should have carried the case. But no, it didn't. Another bad outing for the court, buried by all the predictable applause over access and At first glance, the Supreme Court's 7 to 2 ruling in the Casey Martin suit seems perfectly reasonable, even obvious. Martin is a good professional golfer. He can make the shots, but because of a degenerative condition in his right leg, he can't walk the course during tournaments, as the rules of the Professional Golf Association tour require. Should he be allowed to ride along in a golf cart, while his able-bodied competitors have to walk? "From early on, the essence of the game has been shot-making," Justice John Paul Stevens wrote for the majority. Allowing a disabled golfer to ride between shots, he wrote, is just the sort of "reasonable modification" called for by the 1990 Americans with Disabilities Act. It does not fundamentally change the game as, for instance, widening the hole from three to six inches surely would.

What's wrong with that? Well, for one thing, we have the spectacle of seven judges explaining why famous golf pros like Jack Nicklaus and Arnold Palmer are simply wrong about the game of golf. Nicklaus, Palmer, and a parade of other stars testified that walking and the fatigue it brings are intrinsic to the game of golf at the tournament level. Not so, said Stevens, who also took the opportunity to explain to Nicklaus and Palmer that they were wrong too in feeling fatigued, since a lower court had found a professor somewhere who said that walking a course uses only 500 calories–"nutritionally . . . less than a Big Mac." Presumably Nicklaus and Palmer understand how foolish they were to feel tired, and how unimportant the concept of stamina is, now that Stevens has pointed it out.

This court is always accused of being too conservative. Heaven knows why. It's an unusually intrusive court. Here the justices insert themselves into someone else's game and explain what is arbitrary and what is not. But it is not the role of judges to decide whether baseball's balk rule or football's man-in-motion rule is essential or arbitrary. All rules in all games and sports are arbitrary, as Justice Antonin Scalia pointed out in dissent. That is the nature of games. If everything is arbitrary, on what basis can any court decide what is essential and what isn't? And in any case, as Nicklaus and Palmer said again and again, professional golfers deserve the right to set their own rules. In this case, the PGA set the rule against carts because it believes that walking the course as a show of stamina is necessary under championship conditions. By casually deciding that the PGA is wrong about its own game, the court opens up great room for other courts to tinker with other sports to advance their own notions of social justice. We will now have a great rush of litigation followed by more sports rules being bent or repealed by nonplayers who have the advantage of being judges.

This dubious process of dismantling the rules so that everyone can play is already under way. Shelby Wilson, a 6-year-old Oklahoma child with cerebral palsy, was allowed to use a walker while playing in a girls' softball league. An 11-year-old boy, Geoffrey Shultz, of Hemet, Calif., was allowed to play Pony League baseball on crutches to accommodate his cerebral palsy. In Oklahoma, 9-year-old Ryan Taylor was allowed to play in a soccer league while using a walker. During games, Taylor was essentially stationary, placed about 10 feet from the goal. The sense of inclusion is inspiring, but 9-year-olds are fairly large and quick, and a collision could do some damage, particularly if one collidee is on crutches or using a walker. And having a vulnerable, disabled child in the middle of a soccer match obviously changes the nature of the game. The Taylor boy was allowed to play, then suspended in mid-season for safety reasons. But compassion and access won out over common sense and safety concerns after a judge canceled the suspension for the final game. Officials allowed Taylor to play the entire next season because the league preferred to avoid the cost and trouble of litigation. This case is the likely model of future attempts to change the rules of sports by threatening legal action.

To produce a decision favorable to Martin, the court had to cut a legal corner or two. Under Title III of the ADA, reasonable changes for disabled Americans are called for in public accommodations–places where the public goes for recreation or exercise. As Scalia pointed out in his dissent, Congress had customers in mind, not members of private associations like Casey Martin and Tiger Woods. "Golf course" is specifically mentioned in the law, and italicized by Stevens, but that refers to the right of disabled persons to play themselves or to have access to watch tournaments. It does not refer to professional athletes being watched. The court's casual distortion of the intent of Congress and the plain meaning of the ADA was a legal trick by a willful court that does what it pleases. Scalia's argument on this point was powerful and should have carried the case. But no, it didn't. Another bad outing for the court, buried by all the predictable applause over access and sensitivity.

JWR contributor John Leo's latest book is Incorrect Thoughts : Notes on Our Wayward Culture. Send your comments by clicking here.

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