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WHAT IS GOLF?
by Sheldon Richman (7-23-01)

So now the courts are writing the rules for professional sports. What's next?  Will they soon tell us that sometimes two of a kind beats a full house?

On May 29 the U.S. Supreme Court ruled 7-2 that the PGA Tour has to let Casey Martin ride in a golf cart despite its walking rule.

The real issue at hand is not whether the PGA should voluntarily change its rules so people like Martin, whose degenerative circulatory disease precludes his walking the golf course, may use a golf cart. As a nongolfer, I can find such a change reasonable and decent. I might even agree with Justice John Paul Stevens's statement that a waiver of the walking rule in such cases would not alter the "essence" of the game, as dissenting Justice Antonin Scalia notes, the rules of all games are arbitrary.

Reasonable people may disagree. Reasonable golfers do disagree. Arnold Palmer and Jack Nicklaus, who know a thing or two about the game, testified for the PGA at the trial.

But the issue is not whether the PGA is being stubborn in refusing to permit a waiver of the walking rule in deserving individual cases. The issue is whether any branch of the government should sit in judgment of the PGA.

So whose fault is it that a majority of the Supreme Court has presided over this alteration of the rules of professional tournament golf? Some blame the seven justices and praise the dissenters, Justices Scalia and Clarence Thomas.

That's a mistake. The offending party is not the court but the U.S. Congress, which wrote the Americans with Disabilities Act (ADA), the law applied in the Martin case. The majority said: "Congress intended that an entity like the PGA not only give individualized attention to the handful of requests that it might receive from talented but disabled athletes for a modification or waiver of a rule to allow them access to the competition, but also carefully weigh the purpose, as well as the letter, of the rule before determining that no accommodation would be tolerable." Scalia dissented on the point of congressional intent. But who really knows what was in the minds of the congressmen who voted for the law, which is egalitarianism run amuck and a trampling of individual rights?

The Court of course has the power to strike down the ADA as unconstitutional. It should have done so long ago. But the PGA did not challenge the law per se, only its application in this case. The PGA argued that the law does not apply to pro golfers (who are subcontractors and entertainers) but only to customers and employees. The court replied that golfers are indeed customers of the PGA Tour and that competition is open to the public, albeit with rather stringent conditions. (A $3,000 entry fee and appropriate letters of recommendation get anyone into the qualifying round.)

So, Stevens wrote, the ADA rules about making reasonable accommodations to the disabled apply.

Granted the premises and egalitarian spirit of the ADA, Stevens's point is arguable. The problem is that the premises of the ADA should not be granted. Alas, Scalia, despite a dissent overflowing with verity and humor, grants the premises. His dissent claims that "no one in his right mind" would believe that sports competitors are customers of the sponsoring organization. Thus Martin cannot claim relief under the ADA. Should he become convinced that professional golfers are in some manner customers, he might have to concede that Martin qualifies for relief. (Scalia's dissent contains other grounds for rejecting Martin's claim. He properly finds it ludicrous that the court takes it upon itself to determine "What Is Golf.")

Such are the games justices play when Congress writes bad law.

Why is the ADA bad law? Because it forcibly interferes with private, peaceful activity. While it may be nice, as well as good business, to accommodate people with handicaps, it is not a legal obligation under our traditional Jeffersonian idea of individual rights, including property rights, to which we owe our freedom and prosperity.  When will we learn, as someone once put it, that a government that can do anything for you can do anything to you?

Sheldon Richman is senior fellow at The Future of Freedom Foundation
(www.fff.org) in Fairfax, Va., author of the newly published Tethered Citizens: Time to Repeal the Welfare State, and editor of Ideas on Liberty magazine.