Friday, Oct 21, 2016
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In Martin's case, the Supreme Court went beyond ADA's intentions


Masugi: Save more than golf


The upcoming Fourth of July celebration should remind us that the ancient game of golf had a role, albeit minor, in the forming of America.

After all, the Puritans despised Charles I's indulgences, including his love of golf. Of course the Puritans had more serious grievances, and hence they left England for Holland, and then the New World.

So shouting “Fore!” is hailing the “Fourth.”

If this history seems ridiculous, try reading about the “golf war” in the Supreme Court's opinion in PGA Tour, Inc. v. Casey Martin. The majority opinion doesn't survive the laugh test. While transforming sporting events into exercises of public accommodation for the players, it will not result in wheelchair-powered linebackers.

Nonetheless, the 7-2 court opinion gives conservatives and libertarians much to think about in the presidency of “compassionate conservatism.” It is also a lesson about the radicalization of the Americans With Disabilities Act (ADA).

The court majority opinion unfortunately buys into the utopian conceit that government should guarantee lives of equal satisfaction. But the effort to do so will only guarantee equal misery. This equality of satisfaction (or of misery) is what the court must have had in mind when asserting that Martin's fatigue (even with a cart) is greater than that endured by his competitors who walk the course. This difference was prohibited by the ADA, the court concluded.

On this point, the court went well beyond the original intention of the ADA, which sought reasonable accommodation” of individuals with disabilities, physical and mental, in places of public accommodation and in employment.

This distance is well worth pondering, especially in the era of compassionate conservatism. Conservatives need to realize that this case is about more than saving professional golf from the new Puritans.

Yes, the ADA cannot survive strict constitutional muster. Yes, it is a regulatory measure that extends the administrative state and all its encumbrances. And, yes, worst of all, it is the prime example of sentiment masquerading as legislation, empty words to be filled by a bureaucracy given a virtual free hand in defining and implementing it.

Yet, with all this said, the ADA contains a core that serious conservatives and libertarians must pay heed to.

Too often the ADA has been made a whipping boy of the exasperated right, which cites horror case after horror case of “reasonable accommodation” of a disability: Costly architectural changes, hiring of persons with mental disabilities who may pose a danger to fellow employees, and now the latest golf case.

Even more than the Civil Rights Act of 1964, the ADA exemplifies government using its powers to change attitudes - of both Americans without and with disabilities.

And for this purpose the ADA, for all the previous criticisms, remains a significant achievement, one not to be scoffed at but one to be replaced through non-governmental means.

Working for then-EEOC Chairman Evan J. Kemp as a special assistant (1990-93) brought me to this conclusion. The late disability rights champion was the father of the ADA, if any one person can have that honor. But Mr. Kemp, a talented attorney who suffered from a debilitating nerve disorder, was a sworn enemy of the welfare state and the dependency it fostered.

Mr. Kemp envisioned the ADA as offering an alternative to the welfare state that he saw corroding the souls of persons with disabilities. With work in mainstream jobs as a real alternative, persons with disabilities no longer had excuses - for now they had opportunities.

Disability would no longer be a medical problem requiring care. And disabilities had to be narrowly defined as real restrictions on a natural and essential life function - as the law specifies - not a backache or some other excuse.

Politically astute conservatism can learn much from Mr. Kemp's attitude. Can government programs be used to destroy dependence on government?

If we could write on a blank slate, we wouldn't need to take such a risk. Unfortunately, we are past the point of choosing this particular law (which was strongly endorsed by both President Bushes). And we do have the model of welfare-to-work reform to follow.

As with the President's controversial charitable choice program, serious conservatives who have the responsibility of governing need to make prudent use of whatever opportunities come their way, to undo federal controls and gradually restore self-government.

The point now is, as they say concerning foreign wars, developing an “exit strategy” to replace the federal government.

Dr. Ken Masugi is director of the Center for Local Government, at the Claremont Institute and an Adjunct Fellow at the Ashbrook Center at Ashland University. He was a special assistant to then-EEOC Chairmen Clarence Thomas (1986-90) and Evan Kemp (1990-93).

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