Feed on

“The Year Was 2012, and Everyone Was Finally Equal”

11 years ago the U.S. Supreme Court ruled in favor of Casey Martin, a player of considerable talent who was suffering from a terrible degenerative leg disorder, against the PGA TOUR (these are other players by the way, not some evil corporation) in his request to be able to make use of a golf cart during high levels of tournament play. The Court invoked the ADA and earlier Civil Rights amendments to argue that:

(1) Playing in Professional Golf events is a public accommodation and therefore the PGA TOUR may not discriminate on the basis of a disability no more than a public park/beach/pool/etc. may discriminate on the basis of color.

(2) Allowing the use of a cart does not “fundamentally alter” the true nature of the game.

It is absolutely essential for you to read the majority decision of the case delivered by Justice Stevens, and mandatory reading to read the dissent from two guys who remain invited to dinner parties despite their “barbaric and cold-hearted ruling.” The dissent is incredibly for its clarity and unwillingness to pull punches. Here is the closing for a sneak preview:

Complaints about this case are not “properly directed to Congress,” ante, at 27-28, n. 51. They are properly directed to this Court’s Kafkaesque determination that professional sports organizations, and the fields they rent for their exhibitions, are “places of public accommodation” to the competing athletes, and the athletes themselves “customers” of the organization that pays them; its Alice in Wonderland determination that there are such things as judicially determinable “essential” and “nonessential” rules of a made-up game; and its Animal Farm determination that fairness and the ADA mean that everyone gets to play by individualized rules which will assure that no one’s lack of ability (or at least no one’s lack of ability
so pronounced that it amounts to a disability) will be a handicap. The year was 2001, and “everybody was finally equal.” K. Vonnegut, Harrison Bergeron, in Animal Farm and Related Readings 129 (1997).

But what I’d like to point out now is that whatever your views on disabilities and discrimination, the methods used by the court in deciding this case follow from brutally bad precedent in the Roosevelt era and the Progressive era. Start with the latter. What is it the court’s business to decide at all what the “essential nature” of anything is? Should we expect, then, players who lose in the Ryder Cup to sue the PGA and European PGA because “match play is not an essential aspect of the game?” After all, the majority of tournaments are decided by stroke play. Or how about when a student sues me for requiring writing that resulted in a poor grade because “writing is not a fundamental and essential aspect of doing economics?”

Oh, but you might say, I am a private actor acting privately among voluntary consensual people. Wrong. Basically since the appalling decision in Wickard, the government can and does regulate and intervene in any area that it wishes to on the shaky grounds that that there really can be no exclusively private actions that do not impact the public writ large. In this case, they manage to call playing in a PGA TOUR event a “public accommodation” by arguing that Tiger Woods, Casey Martin, etc. are customers and not producers, employees, or sellers of sporting events, etc. And since golf courses are supposed to be covered by the Civil Rights Act as places requiring open access to customers, then therefore the PGA TOUR is held to the same standard. This reasoning is worthy of winning the crowbar award – annually awarded to the application of extending the decision in Wickard to do anything you want at all. Remember what Wickard said was that a farmer producing extra foodstuff solely for personal consumption was engaging in “inter-state” commerce because his actions would have a small negative impact on the U.S. price of foodstuffs. That decision has since become enshrined by criminalizing the growing of marijuana in your basement on the same grounds. And in earlier cases this precedent was relied upon to apply the Commerce Clause to regulate the desegregation of private amusement parks that had explicit white-only policies. How? Because at an amusement park that advertised, some of their ads made their way to customers across states. Although the court in that decision had no evidence that out-of-staters actually visited the park, they ruled against the park under the Interstate Commerce Clause and then said that even the customer location didn’t matter because some of the rides they used actually were produced in another state.

In other words, when the jurisprudence on your particular issue does not work in your favor, just use the commerce clause to say that whatever action you care about affects interstate commerce and then you have a way to justify any and all interventions in any activity. It’s quite handy. I wished I had a similar trump card. The particulars of this ruling are very much worth pondering, as is the general issue of how best to deal with discrimination, if at all, and whether or not cases like this actually end up helping.

2 Responses to “We Need More, Not Fewer “Cold” Hearts”

  1. Harry says:

    From a respected news source, a story:

    Maxine Watters, ranking member on the House Subcommittee on Banking and Sports Handicapping, said today that in bipartisan support with John Boehner, noted golfer and Speaker, she would introduce HR 72, the Equalization and Fairness Act of 2013.

    The Act would require professional golfers who own real estate or have made over $200,000 in the US to adjust all scores in tournaments played in the US using “the federal USGA baseline (USGAB)”.

    USGAB would use a modified version of the USGA handicapping system used from 1993-2002, including course ratings prior to 2007 but not before 1974.

    Foreign professionals, who may play “golf” without using the handicap system would be assigned a USGA handicap of +4.

    “This is all about good jobs at good wages,” Watters said. “Before you know it we will ship all the tour jobs to China.”

    Presidential press secretary Jay Carney said the administration was adopting a balanced approach to the problem. “It’s a front nine back nine thing, and we have no position on where the strokes should fall. The tea party radicals want to spoil the nineteenth hole.”

  2. Harry says:



    Prince of Wales Charles said he was disturbed by a proposal by the US Speaker of the House of Representatives to “Undermine European unity and subvert the future of the subjects of his former dominion by a partisan proposal to kill sport. Damn their jingoism.”

    The bill, HR72, if enacted, would have awarded Ohio golfer Tom Weiskopf the 1977 Masters, and would have denied United Kingdom golfer Greg Norman any chance to win any US major golf tournament. Under the proposed law, Weiskopf would have been given one stroke per round, plus two mulligans in the par three tournament, in the federal USGAB format.

    Weiskopf dumped four or five balls into the water on hole #11 at Augusta National Golf Club. Norman dumped fewer balls, and has never held a USGA handicap.

    Norman was later implicated in an attempt to injure President Bill Clinton.

    Speaker Boehner denied any bias for fellow Ohioan Weiskopf or “any animus toward any person subject to our enemy the British Empire.”

    Boehner added, “I know that every Prince of Wales thinks he may play golf wherever he pleases, but that does not include Burning Tree. To extend the olive branch, I hereby invite him, and I invite Camilla to the pro shop on Christmas Eve. Merry Christmas to all!”

Leave a Reply