The Cart Before the Law
EDITORIAL The Cart Before the Law Last week the Supreme Court assumed its usual stance astride the statute books, took a mighty swing—and shanked a particular federal law so far into the trees...
...Both simple logic and unbroken legal tradition suggest that those parts of civil rights statutes that address public accommodations (like Title III) are meant to apply to customers, not employees or service contractors...
...Whether Martin is entitled to a waiver of the PGA's walking rule by the Americans With Disabilities Act as approved by Congress and signed into law by the first President Bush, however, seems to us an entirely different question...
...Justice John Paul Stevens, writing for all his colleagues except Antonin Scalia and Clarence Thomas, declares that bothering over Martin's asserted status as an independent contractor of the PGA Tour is altogether unnecessary...
...A majority of American golf pros apparently concur, and further worry that selective enforcement of the walking rule will distort their business with all sorts of subtle competitive advantages and disadvantages...
...The Ninth Circuit has subverted this principle in the Martin case, and hasn't even managed to do it consistently, so that, for example, ADA now protects disabled contractors working for a small public institution, but doesn't protect that institution's actual employees...
...Unless, that is, "the entity can demonstrate that making such modifications would fundamentally alter the nature" of its enterprise...
...Shortly before the new law was finally approved in 1990, the House and Senate issued a joint "conference committee" report clarifying that the ADA was "not intended to disturb the legitimate and reasonable disciplinary rules and procedures established and enforced by professional sports leagues...
...Not at issue before the Supreme Court in the Martin case was a set of employment-related provisions in the ADA known as Title I. Title I bars discrimination against disabled workers by any employer with a larger than fifteen-person regular workforce...
...At least, not the way that law was originally written...
...While another set of "clients or customers"—the in-person and television audience—pays to watch them do it...
...Those questions are important and that debate will be welcome...
...The law specifies twelve categories of public accommodation to be covered by this guarantee, one of which is a "place of exercise or recreation" like, for example, a "golf course...
...No one has ever disputed that Title I's protections do not extend to independent contractors who provide irregular services to such an employer...
...This is neither a Republican nor a Democratic problem...
...Which may or may not be the correct result, so far as golf is concerned...
...It is genuinely shocking...
...And a federal district court has held that Martin's status with the PGA Tour is the legal equivalent of an independent contractor—so no remedy could ever be available to him through Title I. But that same district court, affirmed by the Ninth U.S...
...It will be an achievement with but a single parallel in the history of golf, as we understand it: Ben Hogan's triumph at the 1950 U.S...
...He is in constant pain, his already withered leg continues to atrophy, and every step he takes on that leg involves a risk of hemorrhage or bone fracture...
...David Tell, for the Editors...
...That official Washington has proved similarly unconcerned about the ruling—again, no one in either Congress or the Bush administration has uttered even a peep—is more than a bit surprising...
...And to effect the guarantee, ADA requires anyone who "leases" or "operates" such a "place" to modify all "policies, practices, or procedures" that might interfere with a disabled person's enjoyment there...
...Open, while still recovering from a near-fatal car accident, with his legs wrapped ankle to crotch in elastic to minimize swelling, and barely able to stand up...
...On the other hand, there are a fair number of famous golf names who side with Casey Martin...
...That sports-obsessed America has expressed so little nervousness about the brave new world forecast by PGA Tour, Inc...
...And we will be as thrilled as anyone should Casey Martin, even with court-ordered assistance, someday struggle his way to a victory on the PGA Tour...
...Those organizations which filed briefs on behalf of Casey Martin give some flavor of what's ahead: the National Alliance for the Mentally Ill, Self Help for Hard of Hearing People, and the Dwarf Athletic Association of America, to name just three...
...Denied that assistance, and forced to walk, he is unable to play the sport at all...
...This, he further declares, because it is "entirely appropriate" simply to classify American professional athletes like Martin as "clients or customers" of the events in which they are paid to perform...
...But still, in human terms, Casey Martin will demonstrate real bravery every time he plays, win or lose, for the rest of his life...
...On the one hand, the sport's governing body in America, the United States Golf Association, argues that the uniform walking rule imposed a crucial test of athleticism on tournament professionals: that a large part of what always made a true golf champion was his ability to shoot well even after legging it for twenty-plus miles over four days and 72 holes...
...Rules (then) being rules, Hogan was not allowed the use of a cart...
...v. Casey Martin is a bit surprising...
...But the Martin decision raises an equally important question: The federal judiciary, at the highest levels, has proved willing to subject even relatively simple legislative enactments to Orwellian reinterpretation...
...Title III of the ADA guarantees a disabled "individual" the "full and equal enjoyment of the goods, services, facilities, privileges, [and] advantages" offered by any "place of public accommodation...
...Consequently, for as long as he remains on that tour, Martin is now assured the use of his cart...
...It is a commonplace, of course, that professional sports occupy a unique place in the nation's economic and cultural life...
...In so doing, the majority justices invited lower courts in the federal judiciary to begin inspecting substantive rules of competition in every other professional sport, as well...
...As you've no doubt heard, the Court ruled that the Americans With Disabilities Act of 1990 (ADA) grants golfer Casey Martin the right to use a motorized cart at PGA Tour events...
...Needless to say, there is no evidence that Congress wished or expected its landmark disabilities law to function this way...
...Last week the high court determined that exemptions from the PGA Tour's walking rule, for disabled but otherwise qualified players like Casey Martin, would not fundamentally alter the game of golf...
...As do the nation's editorial pages, whose writers must spend a great deal of time on the links, for all the confidence with which they have welcomed the Supreme Court's ruling—and contemptuously dismissed the significance of walking to the Meaning of Golf...
...EDITORIAL The Cart Before the Law Last week the Supreme Court assumed its usual stance astride the statute books, took a mighty swing—and shanked a particular federal law so far into the trees that it will likely never be found again...
...All by itself, this ruling, which the Supreme Court last week declined to review (and so let stand), reduces federal disability law to incoherence...
...It is not every day that the nation's highest court directly defies common sense, plain statutory language, and the stated intentions of Congress to arrive at an interpretation of federal law...
...With the advent of a Democratic Senate, it is widely assumed that questions of constitutional interpretation will provoke heated and predominantly partisan debate about the president's current and future judicial nominees...
...Despite all this, Martin remains an exceptional golfer—provided he is allowed to ride down each course's fairways, and to and from its greens and tees...
...Last week, the Supreme Court blithely ignored that clear instruction with respect to one professional sport—by presuming to resolve whether the PGA's hard-card walking rule does or does not represent the mystical essence of golf...
...Nor is there any rational justification for the ground on which the Supreme Court, for its part, has ultimately ruled in Casey Martin's favor...
...And the answer to that question, it further seems to us, is no—so obviously and completely no, in fact, as to render the Supreme Court's contrary assertion last week virtually inexplicable...
...Regulations governing the PGA's elite events—the "hard card" of professional American golf—had long obliged competitors to walk the entire length of each tournament...
...Members of Congress of both parties who claim to be our representatives in the enterprise of self-government should work to ensure that the problem gets fixed...
...But this, as Justice Scalia's pungent dissent puts it, is "quite incredible...
...It was this "walking rule" that was nominally at issue in the Supreme Court's decision...
...Here at THE WEEKLY STANDARD, we do not pretend to know what is the Meaning of Golf...
...Circuit Court of Appeals, has also held, as a threshold matter, that Title III of the ADA, while not reaching salaried employees, does cover independent contractors like Casey Martin...
...Martin suffers from Klippel-Trenaunay-Weber Syndrome, a ghastly congenital defect of the vascular system, which in his case prevents the circulation of blood from his right leg to his heart...
...And it is a sorry day, indeed, when only two justices of that court, and no one else in any branch of government, sees fit to complain about it...
Vol. 6 • June 2001 • No. 37
