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Jewish World Review June 4, 2001 / 14 Sivan, 5761

George Will

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The work of compassionate courts never ends -- A DOCTRINE prevalent in prestigious law schools is that language is "open-textured" and "indeterminate," and hence the users of words have vast latitude in infusing them with meanings. A moral theory in vogue is that one virtue trumps all competing considerations. That virtue, compassion, is a feeling that confers upon the person feeling it a duty to do whatever is necessary to ameliorate distress.

On Tuesday we saw what happens when judges are conditioned by that doctrine about language and convinced of that moral theory. The Supreme Court held, 7 to 2, that Casey Martin, a professional golfer handicapped by a degenerative disease that prevents him from walking a golf course, has a right to ride in a cart.

Martin, having successfully invoked the Americans With Disabilities Act, now can ride when competing against golfers who must walk five miles in PGA Tour tournaments. Because of this supposed enlargement of American rights, the PGA Tour and its millions of fans have lost their right to have tournaments conducted in accordance with their understanding of the proper nature of golf competition at the highest levels.

The ADA requires that "public accommodations" make "reasonable modifications" to help the handicapped, unless the modifications would "fundamentally" alter the nature of what the public accommodation does. Justice Stevens, joined by Rehnquist, O'Connor, Kennedy, Souter, Ginsburg and Breyer, said the PGA Tour does not understand as well as he does what is fundamental to elite golf.

The PGA Tour says such golf involves performing under the pressure of fatigue from walking. But the justices upheld a lower court, which also is composed of experts on playing professional golf. That court said fatigue is not fundamental to such competition. Besides, that court said it knew, simply knew that Martin, even with his cart, was more fatigued than competitors who walked.

Stevens, not to be outdone by a lower court in the certitude sweepstakes, asserted his certainty that "pure chance may have a greater impact on the outcome of elite golf tournaments" than does the walking rule. He did not say how he knows that this is true, or why it is relevant.

But the majority's ukase about what is "fundamental" in elite golf had to be preceded by two others. The point of the pertinent ADA provisions is to give enforceable rights to clients or customers of public accommodations (e.g., hotels, restaurants). So the court had to decree this: A tournament featuring the world's best golfers -- a tournament, mind you, not a golf course -- is a public accommodation. That said, the court also had to say this: A golfer who pays a tournament entry fee is a "customer" purchasing "competition."

Resisting this reduction of the English language to applesauce, Justice Scalia, joined in dissent by Thomas, said: Baseball players "participate" in games at Yankee Stadium and "use" it, "but no one in his right mind would think that they are customers of the American League or of Yankee Stadium. They are themselves the entertainment that the customers pay to watch."

As for Stevens's interesting claim to know golf's "essence," Scalia said, yes, sure, the Constitution's Framers expected "the judges of this august Court would someday have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. . . . Either out of humility or out of self-respect (one or the other) the Court should decline to answer this incredibly difficult and incredibly silly question."

Many questions may now come to courts from athletes seeking court-ordered alterations -- not, of course, "fundamental" ones touching the sport's "essence" -- of this and that sport's rules in order to accommodate different disadvantages. Scalia envisions parents of a Little Leaguer with attention deficit disorder asking a judge to order that their child be allowed four strikes because his disability makes hitting that much harder.

And what of the mother who today is suing the San Francisco Ballet, charging that its weight and height standards illegally discriminate against her daughter? Suppose the daughter's physical attributes count under the ADA as "disabilities" in the context of her preferred profession. If that seems unthinkable, you have not noticed all that has been swept into the category "disability" under the ADA. What "reasonable modifications" of the ballet's standards might Justice Stevens improvise? By what principle should the ballet's standards survive while the PGA Tour's do not?

The work of compassionate courts never ends.

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