- The Washington Times - Tuesday, June 5, 2001

The law was not sacrificed at the altar of sympathy in the Supreme Courts 7-2 decision on May 29 in PGA Tour Inc. vs. Martin requiring the PGA to accommodate disabled golfer Casey Martin with a golf cart in elite professional tournaments.
Neither was the high courts ruling the sporting equivalent of the French storming of the Bastille, destined to culminate in the lowering of NBA baskets to three feet to accommodate dwarf syndrome. The biting dissent of Justice Antonin Scalia featured more intellectual dazzle than persuasiveness.
As a youth, Mr. Martin rocketed to golfing stardom despite a degenerative circulatory leg disorder that foreclosed walking without debilitating pain and a risk of amputation. A golf cart enabled Mr. Martin to ameliorate his plight; but he still encountered stress and anguish in repeated round trip excursions from the cart to the ball, distances in aggregate approximating 25 percent of an 18-hole course.
Mr. Martin featured on the Stanford University golf team that captured the 1994 NCAA championship with an NCAA waiver from its walking rule. No dissent or complaint was heard.
As a professional, Mr. Martin confronted the fossilized PGA earmarked by right angle thinking with no contours or soft curves. Thus, it insisted on applying its walking rule to Mr. Martin in elite tournaments, although golf carts are au courant in a host of less competitive PGA sponsorships.
Mr. Martin sued under the Americans With Disabilities Act of 1990, challenging the PGAs mulishness. Title III of the statute protects the disabled from discrimination in places of public accommodation, and defines disability as "a physical or mental impairment that substantially limits one or more of major life activities." A golf course is specifically enumerated in the ADA as a place of public accommodation; and, the PGA did not dispute that Mr. Martins degenerative circulatory disorder constituted a disability.
PGA argued, however, that a golf course is only a public accommodation in the areas reserved for spectators. The portions closed but for competitors like Mr. Martin are excluded. Moreover, according to the PGA, walking is a substantive rule of golf, and a waiver for any person at any time or for any reason would make the sport unrecognizable. The ADA, it noted, does not endow the disabled with an Excalibur to refashion professional athletics; accommodations are required only if both "reasonable" and undisturbing to the "fundamental" elements of the game.
A federal district court ruled for Mr. Martin. It found that a golf cart would be competitively neutral because Mr. Martins disease injected a fatigue and stress factor at least the equivalent of walking by the non-disabled.
The Supreme Court, speaking through Justice John Paul Stevens, affirmed. He reasoned that the entire golf courses leased by the PGA for its tours fell within the public accommodation coverage of the ADA. Players compete on the premises. A competitive slot is a privilege afforded by the PGA, as is the entertainment provided to spectators. That Congress intended Title III of the ADA to reach public accommodations serving discrete clients or customers simultaneously but in different ways, Justice Stevens added, is convincing.
Indeed, the PGAs crabbed contrary interpretation would authorize racism in the selection tournament participants outside the prohibition of the 1964 Civil Rights Act. Justice Stevens further explained that Martins use of a golf cart, according to the facts found at trial, would neither fundamentally alter the character of golf nor create a competitive advantage because of Mr. Martins excruciating leg ailment. Golf carts are routinely available in PGAs non-elite tournaments, which are nevertheless touted as golfing competitions. Further, golf is customarily understood to test skill in driving, chipping and putting, not cavorting down the course with a caddy. Ditto for dictionary definitions. In sum, golf is still golf when played with a golf cart.
In a scorching dissent, Justice Scalia proved that intellectual tidiness in harmonizing both the employment and public accommodations coverages of the ADA was jarred by the majoritys holding. But Congress routinely indulges legislative illogic and theoretical contradictions without pangs of cognitive dissonance. And the lodestar of interpretation is the intent of Congress relying on the meaning of words in common parlance. If Platonic Guardians made our laws, imputing an intent to create intellectual beauty might be reasonable. But to think a single member of the House or Senate that enacted the ADA believes the Martin decision distorted statutory intent by offending impeccable logic falls somewhere between the imaginative and the hallucinogenic.
The dissent also insisted that all sporting rules are arbitrary; none intrinsically are more essential than others. Thus, any characterization of a rule as nonfundamental is pure judicial whimsy, including the PGAs walking demand. But Congress employed the term fundamental in Title III, and it is congressional intent that governs its interpretation even if occasionally blurry in application. Under the dissents view, Major League Baseball could prohibit one-armed pitchers because the disability might lower fan attendance and audience ratings allegedly contrary to the fundamental nature of game aesthetics. Justice Scalia fretted that Martin will spawn endless and lucrative litigation, although only two companion suits were filed during its three-year legal odyssey.
Moreover, as Justice Oliver Wendell Holmes retorted to worries that to concede a power to tax is to concede its abuse: "Not …while this court sits."


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