Column: Lacking `benevolent compassion'

When a person thinks about a slippery slope in terms of golf, he is usually referring to the undulation of a putting green. But last week, with the decision by the Supreme Court to allow professional golfer Casey Martin to use a cart when playing in Professional Golf Association Tour events, a whole new question has arisen: Will allowing Martin to use a golf cart while playing in PGA events result in a bevy of requests for special accommodations by other players? Well, it might, but the decision was correct nonetheless.

In the 7-2 decision, the Court ruled that the PGA must continue to permit Martin--a talented Stanford graduate--to receive the necessary accommodation granted to the physically disabled under the Americans with Disabilities Act of 1990--specifically, a golf cart. Meanwhile, in his dissent, Mr. Sensitivity himself, Justice Antonin Scalia, called the majority opinion a demonstration of "benevolent compassion that the law does not place... within our power to impose."

Scalia, who supposedly stands as the court's chief opponent of judicial overreach, made two claims that serve as the foundation of his dissent. First, Scalia attacked the "slippery slope" argument head on, noting the enforcement difficulties of the ruling. What if a Little League baseball player has Attention Deficit Disorder and therefore can't concentrate on how many balls and strikes have been thrown against him, Scalia says? Should the player receive a four-strike limit?

The Reagan-appointed justice also challenged his colleagues by noting that they inconspicuously seemed to omit an essential aspect of the ADA--that it "explicitly does not require modifications [that] would fundamentally alter the nature of the goods, services and privileges [in this case, the PGA golf rules]."

Now, I'm no lawyer, but any time a justice's opinion leaves out such a glaringly important aspect of the law it is interpreting, a red flag should definitely be raised. However, in this case, Scalia's charge against his colleagues' majority decision is simply incorrect. While the PGA Tour itself has never allowed golf carts to be used during its officially sanctioned events, it has allowed the use of golf carts on its Senior Tour and in its member clubs throughout the nation. Only the professional men's and women's tours reject the usage of carts during tournament play. Even Scalia himself warns the PGA and other organizations to "make sure that the same written rules are set forth for all levels of play, and never voluntarily... grant any modifications."

There's no question that allowing even one player to use a cart during tournament play is a major exception that should be rigorously considered, and that's why the PGA Tour was justified in its initial challenge to Martin's right to invoke the ADA. But from a political, and ultimately legal, standpoint, the PGA rightly received a black eye for taking its efforts too far. It should have relented after a pro-Martin ruling in the U.S. 9th Circuit Court of Appeals, but it again challenged Martin in the U.S. Supreme Court. In both trials, the judges ascertained that Martin's use of a golf cart did not constitute a fundamental modification of the game, as Scalia purports.

Players face a near laundry list of variables that enter into the fairness of a golf round, such as the weather, the time of day that each golfer plays his round and the impact of spectators on the event. In essence, they will never receive a completely fair shake because of the nature of the game. As Martin will tell you, the additional variables he must deal with, which include the crushing pain of each step he takes, the endless fatigue of using his degenerative right leg in any fashion, and the taunts he endures from unfriendly spectators, more than outweigh any perceived advantage he could receive from using a cart while playing.

We have a judicial system that provides open access to those who are prepared to fight for their rights. It does not mean we have a litigious society. It means that injustice is so inimical to our basic beliefs, that we feel it appropriate to challenge unfairness and discrimination at every level. In this system, Casey Martin played by the rules, and in a great example of competitive courage, fought the PGA. That is exactly the kind of spirit and values we want our professional athletes to exhibit.