WASHINGTON--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, 7-2, 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 (BEG ITAL)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 (BEG
ITAL)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 (BEG ITAL)customers of
the American League or of Yankee Stadium. They are themselves the
entertainment that the customers pay to watch.''
As for Stevens' 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 (BEG ITAL)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
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
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.