JWR Eric BreindelMona CharenLinda Chavez
Jacob SullumJonathan S. TobinThomas Sowell
Robert ScheerDon FederRoger Simon
Left, Right & Center
Jewish World Review / February 20, 1998 / 24 Shevat, 5758

Jacob Sullum

Jacob Sullum Rules of the Game

SINCE MY EXPERIENCE with golf is limited to knocking balls through windmill doors and Finchem clowns' mouths, I try to avoid arguing about the sport. I suspect my ignorance would be revealed immediately.

U.S. Magistrate Thomas M. Coffin is braver than I. He does not play golf either, but that did not stop him from determining the fundamental nature of the game, which he said does not entail walking from one hole to another. Coffin therefore ordered the Professional Golf Association to let Casey Martin ride a cart during tournaments.

Martin, a young golfer with a rare circulatory disorder that makes walking extremely painful, argued that the Americans with Disabilities Act required the PGA to waive its rule against carts. The ADA demands that "places of public accommodation" (including golf courses) make "reasonable modifications in policies, practices or procedures" to allow access by the disabled. But there's an exception for changes that "fundamentally alter the nature" of the activity in question, which is why Coffin was called upon to divine the essence of golf.

That task invited plenty of passionate commentary, in and out of the courtroom. Martin and his supporters said it's silly to pretend that golf is a test of endurance; it's basically a game of skill, and how you move from hole to hole is irrelevant. The PGA and its defenders -- including several golfers who are so famous that even I have heard of them -- said it's true that hitting the ball is the main point, but in professional competitions, fatigue can make a crucial difference, and a cart gives a golfer an unfair advantage.

I am firmly agnostic on this issue. At the risk of offending both sides in the debate, I'll go a bit further and say that had the PGA decided on its own to allow carts, I probably would not have noticed, let alone cared. Like the designated hitter rule and the merits of artificial turf, this is not a controversy that keeps me awake at night.

But I do worry about the government's steadily advancing encroachment on voluntary arrangements that are none of its business. By labeling golf a "public accommodation," Congress licensed Coffin to substitute force for consent, imposing his own view of the sport on an organization that sees things differently.

After the decision, PGA Tour Commissioner Tim Finchem complained that the rules are "being made by someone who doesn't have a background in golf. It's important that sports be allowed to make their own rules."

But Finchem seemed only dimly aware of the broader principle at stake, declaring that "the PGA Tour strongly supports the spirit of the Americans with Disabilities Act." In other words, it's OK for Congress to impose the burden of "accommodating" the disabled on businesses throughout the country -- as long as professional sports are exempt.

The ADA, which passed with bipartisan support in 1990, is so popular that even its victims are reluctant to criticize it. It's the ultimate feel-good law, promising "equal opportunity for individuals with disabilities in public accommodations, employment, transportation, state and local government services, and telecommunications."

Who could be against that? Well, anyone who values freedom of association -- as the PGA clearly does -- has to be concerned about a law that overrides the rules private organizations choose for themselves. And anyone who values the rule of law should be worried by the ADA's unpredictability.

Because the law's demands are vague and depend upon case-by-case analysis, employers and operators of "public accommodations" may not know what they're required to do until they're sued. The ADA forces business people to puzzle over the meaning of terms like "disability," "legitimate" qualifications, "essential functions," "reasonable accommodation," "undue hardship" and "fundamental alteration."

To give you an idea of how clear the statute is on such points, it says barrier removal is "readily achievable" (and therefore required) if it is "easily accomplishable and able to be carried out without much difficulty or expense." Needless to say, the person who actually has to pay for the changes is likely to have a different view of what's "readily achievable" than an aggrieved customer or employee.

In practice, the ADA transfers the authority to make such judgments from the people who bear the cost to the people who seek the benefit. Whether you think that's fair depends on your moral premises. But it has nothing to do with the fundamental nature of that.

02/13/98: Feeling his pain... and a little pleasure

©1998, Creators Syndicate, Inc.