Ticket to Ride

Jacob Sullum

6/5/2001 12:00:00 AM - Jacob Sullum
Surely something is wrong when the highest court in the land starts arguing about sports. It would be hard to take the Supreme Court seriously if it issued an opinion on the designated hitter rule or the merits of AstroTurf. Yet when the Court ruled that walking is not essential to golf, it was widely applauded instead of ridiculed, because its heart was in the right place. There's no denying that Casey Martin, a 29-year-old golfer with a degenerative circulatory disorder that makes walking painful and dangerous, was a sympathetic plaintiff. After he qualified for the PGA Tour in 2000, all he asked was that the organization waive its ban on golf carts so he could compete. When the PGA said no, he sued under the Americans with Disabilities Act. The conflict pitted a talented young athlete who had overcome daunting obstacles against a powerful organization seemingly bent on denying him his dream. It was not hard to predict which side would get more public sympathy, even if the PGA did have the backing of golfing legends such as Arnold Palmer, Jack Nicklaus and Ken Venturi. These players testified that the fatigue caused by walking from hole to hole is a test of stamina that can be decisive in tournaments. Like the district judge and the appeals court, the Supreme Court gave little weight to this argument, citing a physiology professor's testimony that walking a 5-mile course burns only about 500 calories -- "nutritionally less than a Big Mac." Perhaps the Court would have seen things differently if the witness had thrown in a side of fries. Regardless of the fatigue factor, the majority opined, "the use of carts is not in itself inconsistent with the fundamental character of the game of golf. From early on, the essence of the game has been shot-making -- using clubs to cause a ball to progress from the teeing ground to a hole some distance away with as few strokes as possible." No doubt Jack Nicklaus and the PGA were grateful for the tutorial, but why was the Supreme Court pondering the essence of golf in the first place? To understand that, you have to delve into the Americans with Disabilities Act. The ADA requires "reasonable modifications" to make "public accommodations" accessible to people with disabilities. It allows an exception when "making such modifications would fundamentally alter the nature of (the) goods, services, facilities, privileges, advantages, or accommodations" being offered. Hence the debate about the fundamental nature of golf. In his dissent, Justice Antonin Scalia argued that the Court never should have considered "this incredibly difficult and incredibly silly question" because the ADA's "public accommodations" provisions apply only to customers. Martin "was not a customer buying recreation or entertainment," Scalia wrote. "He was a professional athlete selling it." In any case, Scalia said, the ADA requires equal access to existing goods or services; it does not require that goods or services themselves be changed to accommodate the disabled, which is what imposing new rules on PGA tournaments entails. Since game rules are arbitrary, he observed, "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 rulemaker (here the PGA) deems it to be essential." Although Scalia said the blame for such meddling lies with the courts rather than the legislature, Congress should not be let off the hook so easily. The vague, sweeping ADA invites judges to second-guess the decisions of private businesses and organizations about how to run their own operations and use their own property. It deliberately and explicitly runs roughshod over freedom of association and freedom of contract. Scalia mocked the idea that "it has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government's power 'to regulate Commerce with foreign Nations, and among the several States,' to decide What Is Golf." But it's no more plausible to suppose that the Commerce Clause gives Congress the authority to require the construction of wheelchair ramps throughout the country, to pick one of the ADA's least controversial consequences. If Congress respected constitutional limits, it never would have passed the ADA. But if the federal government can force everyone else to accommodate the disabled, it can certainly force the PGA to be nice to Casey Martin.