By Rob Harris
Almost as quickly as the political parties drew battle lines over whether the Senate should entertain an election year confirmation of a replacement justice for Antonin Scalia, the golf world began reminiscing about Justice Scalia’s dissent in Casey Martin’s victorious suit against the PGA Tour.
The Casey Martin case, as many will remember, addressed the issue of whether the Americans with Disability Act permitted Martin to use a golf cart in PGA Tour events. The Supreme Court ruled in his favor by a 7-2 vote, with Justices Scalia and Thomas dissenting. Justice Scalia wrote the opinion for the dissenters.
The most memorable excerpt from the dissent is the one where Justice Scalia sarcastically challenges the court on why it had any role to play in the definition of golf, specifically whether walking was a fundamental aspect of the game:
If one assumes, however, that the PGA TOUR has some legal obligation to play classic, Platonic golf—and if one assumes the correctness of all the other wrong turns the Court has made to get to this point—then we Justices must confront what is indeed an awesome responsibility. 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 “[t]o regulate Commerce with foreign Nations, and among the several States,” to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a “fundamental” aspect of golf.
Re-reading his dissent, however, served as a reminder of the narrowly-framed jurisprudence Justice Scalia was generally known. For example, much of his dissent addressed the scope of the Americans with Disabilities Act, in which he argued that the court’s majority was contorting the statute’s terms in ways never intended in order to make them cover Martin’s status as a professional golfer. According to Scalia:
The provision of Title III at issue here…is a public-accommodation law, and it is the traditional understanding of public-accommodation laws that they provide rights for customers. … For example, the persons “gathering” at an auditorium are presumably covered by Title III, but those contracting to clean the auditorium are not. Title III is said to cover a “zoo” or “other place of recreation.” The persons “recreat[ing]” at a “zoo” are presumably covered, but the animal handlers bringing in the latest panda are not.
The Court, for its part… pronounces respondent to be a “customer” of the PGA TOUR or of the golf courses on which it is played. That seems to me quite incredible. The PGA TOUR is a professional sporting event, staged for the entertainment of a live and TV audience, the receipts from whom … pay the expenses of the tour, including the cash prizes for the winning golfers. The professional golfers on the tour are no more “enjoying” (the statutory term) the entertainment that the tour provides, or the facilities of the golf courses on which it is held, than professional baseball players “enjoy” the baseball games in which they play or the facilities of Yankee Stadium. To be sure, professional ballplayers participate in the games, and use the ball-fields, but no one in his right mind would think that they are customers of the American League or of Yankee Stadium. They are themselves the entertainment that the customers pay to watch. And professional golfers are no different….
Respondent did not seek to “exercise” or “recreate” at the PGA TOUR events; he sought to make money (which is why he is called a professional golfer). He was not a customer buying recreation or entertainment; he was a professional athlete selling it…
The Court relies heavily upon the Q-School. It says that petitioner offers the golfing public the “privilege” of “competing in the Q-School and playing in the tours; indeed, the former is a privilege for which thousands of individuals from the general public pay, and the latter is one for which they vie.” … But the Q-School is no more a “privilege” offered for the general public’s “enjoyment” than is the California Bar Exam. It is a competition for entry into the PGA TOUR—an open tryout, no different in principle from open casting for a movie or stage production, or walk-on try-outs for other professional sports, such as baseball. … It may well be that some amateur golfers enjoy trying to make the grade, just as some amateur actors may enjoy auditions, and amateur baseball players may enjoy open tryouts (I hesitate to say that amateur lawyers may enjoy taking the California Bar Exam). But the purpose of holding those tryouts is not to provide entertainment; it is to hire…
Then, Justice Scalia went after the majority’s interpretation of the scope of behavior regulated by the ADA, arguing that neither the courts nor the statute had any business in telling the PGA Tour how to decide the rules that would govern its competitions:
The ADA … explicitly does not require “modifications [that] would fundamentally alter the nature” of the goods, services, and privileges. In other words, disabled individuals must be given access to the same goods, services, and privileges that others enjoy. … A camera store may not refuse to sell cameras to a disabled person, but it is not required to stock cameras specially designed for such persons. … It is hardly a feasible judicial function to decide whether shoe stores should sell single shoes to one-legged persons and if so at what price, or how many Braille books the Borders or Barnes and Noble bookstore chains should stock in each of their stores.” …
It is as irrelevant to the PGA TOUR’s compliance with the statute whether walking is essential to the game of golf as it is to the shoe store’s compliance whether “pairness” is essential to the nature of shoes. If a shoe store wishes to sell shoes only in pairs it may; and if a golf tour (or a golf course) wishes to provide only walk-around golf, it may. The PGA TOUR cannot deny respondent access to that game because of his disability, but it need not provide him a game different (whether in its essentials or in its details) from that offered to everyone else.
Finally, after weighing in with the excerpt quoted at the outset, in which he voiced his disagreement with the court deigning to second guess the Tour’s determination that walking was fundamental, Scalia went on to question the means by which the court drew the line as to what changes could be deemed fundamental:
But since it is the very nature of a game to have no object except amusement (that is what distinguishes games from productive activity), it is quite impossible to say that any of a game’s arbitrary rules is “essential.” Eighteen-hole golf courses, 10-foot-high basketball hoops, 90-foot baselines, 100-yard football fields—all are arbitrary and none is essential. The only support for any of them is tradition and (in more modern times) insistence by what has come to be regarded as the ruling body of the sport—both of which factors support the PGA TOUR’s position in the present case. (Many, indeed, consider walking to be the central feature of the game of golf—hence Mark Twain’s classic criticism of the sport: “a good walk spoiled.”)
I suppose there is some point at which the rules of a well-known game are changed to such a degree that no reasonable person would call it the same game. If the PGA TOUR competitors were required to dribble a large, inflated ball and put it through a round hoop, the game could no longer reasonably be called golf. But this criterion—destroying recognizability as the same generic game—is surely not the test of “essentialness” or “fundamentalness” that the Court applies, since it apparently thinks that merely changing the diameter of the cup might “fundamentally alter” the game of golf.
Having concluded that dispensing with the walking rule would not violate federal-Platonic “golf” (and, implicitly, that it is federal-Platonic golf, and no other, that the PGA TOUR can insist upon), the Court moves on to the second part of its test: the competitive effects of waiving this nonessential rule. In this part of its analysis, the Court first finds that the effects of the change are “mitigated” by the fact that in the game of golf weather, a “lucky bounce,” and “pure chance” provide different conditions for each competitor and individual ability may not “be the sole determinant of the outcome.” I guess that is why those who follow professional golfing consider Jack Nicklaus the luckiest golfer of all time, only to be challenged of late by the phenomenal luck of Tiger Woods. The Court’s empiricism is unpersuasive.
“Pure chance” is randomly distributed among the players, but allowing respondent to use a cart gives him a “lucky” break every time he plays. Pure chance also only matters at the margin—a stroke here or there; the cart substantially improves this respondent’s competitive prospects beyond a couple of strokes. But even granting that there are significant nonhuman variables affecting competition, that fact does not justify adding another variable that always favors one player. In an apparent effort to make its opinion as narrow as possible, the Court relies upon the District Court’s finding that even with a cart, respondent will be at least as fatigued as everyone else. This, the Court says, proves that competition will not be affected. …
Harris is an attorney and founder of http://www.golfdisputeresolution.com/. He can be reached at rharris@golfdisputeresolution.com
