THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
ROGER COSSACK, CO-HOST: From the pillars of the highest court in the land, a ruling cuts through the fairways of tradition in the PGA, as Casey Martin wins the right to use a golf cart while participating in PGA tournaments.
(BEGIN VIDEO CLIP)
CASEY MARTIN, PROFESSIONAL GOLFER: I've demonstrated that, unfortunately, that I haven't been out there winning every event. And it just doesn't give me advantage to play golf. It certainly gives me -- it gives me a right to play golf, but it doesn't give me an advantage over another competitor. And I know that deep down, I'd much rather walk with a healthy leg than ride with my leg.
(END VIDEO CLIP)
COSSACK: Today on BURDEN OF PROOF: How can the Supreme Court redefine professional golf? And how will this ruling affect the game?
ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.
COSSACK: Hello, and welcome to BURDEN OF PROOF.
Yesterday the United States Supreme Court ruled 7 to 2 that a federal disability bias law permits professional golfer Casey Martin to ride in a golf cart during PGA tournaments. Now, traditionally, professional golfers walk the course, but Martin has a circulatory disorder in his right leg that makes it difficult for him to walk an 18-hole golf course. Now, the court decision ended a three-and-a- half-year battle between Martin and the PGA over whether the tour would allow golf carts in competition. Differing reactions to this ruling are being heard from the PGA players and the PGA's governing body.
(BEGIN VIDEO CLIP)
TIGER WOODS, PROFESSIONAL GOLFER: I think walking the golf course, you know, is part of our -- part of our game. And I think what -- ultimately, what the decision with -- with Casey -- I'm extremely happy for Casey, and Casey's one of my friends. I've played with him. He was my roommate on the road in college my freshman year. And I -- to see Casey now be able to go out there in play with some peace and quiet, finally, without having this over his head, I think is going to be beneficial for him.
(END VIDEO CLIP)
COSSACK: Joining us today, Kenny Coble (ph), law professor and former Supreme Court clerk Chai Feldblum, who played a leading role in drafting the Americans With Disabilities Act, and constitutional law expert and attorney Alan Charles Raul. In the back, Jim Doggett (ph), Charlie Mercer (ph) and Ashley Hufstedler (ph).
All right, I want to go to you, Chai. I would argue that yesterday's decision by the United States Supreme Court redefined professional golf, that professional golf defined itself as requiring generally two things. You needed, one, to be able to really make wonderful shots and hit the ball well, and two, you had to be able to walk from station to station, from hole to hole.
What the Supreme Court has now said is, "No, you only have to be able to do one thing wonderfully. You have to be able to make those shots," which believe me, is hard enough, "but walking isn't part of it." Who's the Supreme Court to redefine this?
CHAI FELDBLUM, FORMER SUPREME COURT CLERK: Well, I don't think the Supreme Court redefined golf. I think the Supreme Court asked the PGA to justify its statement that walk was essential. And you know, the Supreme Court had before it that it was only in 1997 that the PGA changed its rules in this Q-School event to say that you can no longer walk (sic). In 1997 they changed that rule.
COSSACK: Well, what difference does that make whether they changed it in 1997 or 1999 or 1912?
FELDBLUM: Well, it becomes relevant when you have a sport where, as the Supreme Court said, "Based on everything we've got in front of us, it seems like the essential part is making that shot," as you say. Now, there's been a federal law that's passed that says you can't exclude people with disabilities from activities. Well, does that mean every person with a disability gets to do anything he or she wants? No. If you have to change something for a person with a disability in a way that fundamentally alters the nature of the game...
COSSACK: But who's the better decision -- who's the better person or entity to decide what is the fundamental nature of the game, the Supreme Court or the -- or the ruling body of golf?
FELDBLUM: Well, I think answered that. Congress passed a law that says that businesses, including sports organizations -- they didn't exclude them -- businesses have to modify rules that keep out people with disabilities unless that modification would fundamentally alter the nature of the game. So Congress said, "We're passing a law. Here's the standard. You get to prove that you don't have to change it because it's going to fundamentally alter your game or your business," and then the arbiters of that, in our system of law, are the courts.
COSSACK: Alan, I go back to my original question. The Supreme Court has, haven't they, redefined what professional golf is.
ALAN CHARLES RAUL, CONSTITUTIONAL LAW EXPERT: Sure. They've decided that it's not for the Professional Golf Association to decide what the rules are, it's for judges to decide. Basically, they're saying it's compassion over the common sense that in a professional, competitive sporting event that the rule-making body for that sport gets to decide.
But what does the Supreme Court know about the essence of golf? And really, as -- as Justice Scalia said, where do they come off deciding that the PGA tour has to play, in the words of Justice Scalia, "classic professional, platonic" -- not professional, but rather platonic golf? I mean, for any game, the rules are, as Justice Scalia says, essentially arbitrary.
I mean, for example, in basketball, there's a 24-second shot clock, or whatever the time is. That's an arbitrary rule that the decision maker of the NBA decided is useful. But what about someone with attention deficit disorder who decides, "Well, shooting within 24 seconds is -- it's not fair to subject me to that same rule because I can't concentrate for that long. But I've got the same terrific jump shot that Allen Iverson has, but it just takes me longer than 24 second to shoot." So where would judges come off saying, "No, the 24 shot clock is not essential to the basket-making essence or platonic nature of basketball."
Similarly, walking may not be the essence of golf, but it's just one of the factors that the PGA tour decided was relevant to the rules. So what the Supreme Court has done is say, "Look, when other people set rules, it doesn't matter as much as when we evaluate the rules and when we decide what's important."
COSSACK: Is it a good idea that the Supreme Court should be in the rule-making business for sports?
FELDBLUM: Yeah, when it's about civil rights! I feel as if Alan has somehow forgotten the whole episode of civil rights law in our country. If PGA decided that one of their arbitrary rules is only white people can play...
COSSACK: Oh, no!
COSSACK: I'm not going to let you go down that road, Chai...
FELDBLUM: Why not?
COSSACK: ... because that's -- because that's clearly a different issue. That's due process. That's all kinds of other issues in terms of citizenship rights in our government. This is -- this is a...
FELDBLUM: But let me stop you a second.
COSSACK: ... statutory act, the ADA. FELDBLUM: When we worked -- statute -- I'm talking -- the reason why PGA cannot keep a black person out is not because of the Constitution. The PGA is not a government institution. The PGA can't keep a black person out because of Title II of the Civil Rights Act of '64 that says public accommodations cannot discriminate on the basis of race. The ADA -- when we worked on the ADA, it was clear that the ADA was a civil rights law for people with disabilities. I'm sorry if it's hard for some people in the country to think about someone...
FELDBLUM: ... with a degenerative disease as having a civil right to play.
COSSACK: All right, let me -- let me -- we have 30 seconds. Let me let you respond to this.
RAUL: Well, firstly, what the Americans With Disabilities Act is intended to do is to integrate disabled persons into the economic and social mainstream of American society. Now, if you're a professional competitive golfer, whatever else is true about you, you are certainly not talking about entering the mainstream. This is a very elite, competitive sector of society, subject to very specific and, yes, arbitrary rules.
So the Supreme Court is saying that despite the fact that only certain people can compete at this level and the talents necessary to do that are unequally distributed, we are going to level the playing field by saying, "Well, only some talents are required. Only some rules are essential. Throw out the basic competitive rules of the game and replace them with what the Supreme Court says is the platonic essence."
Well, that just doesn't make any -- any common sense at all. And Justice Scalia really has it right when he says it's not the role of the courts to do that.
COSSACK: Chai, I promise you you're going to get a chance to respond to that, but we got to take a break.
If the Supreme Court can tell the PGA what its rules are, can it tell you what your business rules should be? Stay with us.
(BEGIN LEGAL BRIEF)
Brenda Corrie Kuehn says that her pregnancy is not a disability and that she would not consider asking for a golf cart to help her when she tees off in the U.S. Women's Open. Kuehn, who is in the eighth month of her pregnancy, will walk the course in the tournament this week.
(END LEGAL BRIEF)
(INTERRUPTED FOR LIVE EVENT) (COMMERCIAL BREAK)
COSSACK: Welcome back.
Yesterday the Supreme Court ruled that golfer Casey Martin must be allowed to use a golf cart during professional tournaments. So let's now go to CNN's Jeff Flock, who is at the Memorial tournament at Muirfield (ph) Golf Club in Dublin, Ohio.
So Jeff, what the reaction on the green? What are the fans saying about this decision?
JEFF FLOCK, CNN CORRESPONDENT: Well, Roger, we've been talking to both golfers and fans throughout this day. A lot of people out on the course today, coming to watch this practice round. We got a couple of folks here who have been following this case and talking about the fundamental fairness. This young lady we talked about, is this fair to let him ride while others must walk?
UNIDENTIFIED FEMALE: No, I don't really think so. I think that if he wants to be a pro, he should walk along with everybody else. It's only fair. You know, everybody else walks. And plus it's very difficult for someone to come and look at the ball and see where it's going to be and the club you're going to use and, you know, it's just a very difficult thing for you to...
FLOCK: This other gentleman here saying, though, this is this man's business, right?
UNIDENTIFIED MALE: It's hard to make a -- I think it's hard to make a call -- I think I said before that for the courts to get in and -- and make a decision as -- as...
FLOCK: Do you have a problem with that?
UNIDENTIFIED MALE: Well, I don't -- I don't know if I have a problem, but I'm concerned that where does this lead. You know, 10 years from now, with the prosthetics that somebody might have on their knee, to be able to be a professional basketball player and, you know, what all the implications are. You know, it's hard to take money out of the guy's pocket, but on the other hand, what -- you know, what are the -- what are the implications down the road?
FLOCK: Courts belong in this, do you think, or do you think the PGA should have been able to figure it out on its own?
UNIDENTIFIED FEMALE: Oh, I think they should have figured it out on their own. And if he wanted to do that, I think it should have been an amateur status or something. I mean, I'm not sure, at a point, but the courts are in too much of our lives already.
FLOCK: Listen to that one, Roger. You echo that?
UNIDENTIFIED MALE: Yeah. I don't think the -- I don't think the courts should have been involved. I'm not sure how a decision could have been made fairly, but -- too many -- too many courts today with everything.
UNIDENTIFIED FEMALE: Well, yeah, I mean, you get this, and then you've got something else going on. And where is it going to end? I mean, here you are with -- you know, it goes on and on and on, and -- you know.
COSSACK: Jeff, would you...
FLOCK: Well, perhaps...
COSSACK: Jeff, I'm just saying...
FLOCK: ... one question that everyone can agree to. But go ahead, Roger.
COSSACK: I was just going to say, would you ask one of your guests how they feel about his -- about his inability to make a living if he is prevented from doing this merely because he has a disability.
FLOCK: Roger Cossacks' question is, you know, this prohibits his ability to make a living if he was enjoined from -- from doing this. Would you have a problem in that case?
UNIDENTIFIED MALE: Well, that's -- that's the -- my -- where my fundamental question is. You know, he should be able to make a living, and you know, how can you keep him from doing it? But on the other hand, you know, you may be impairing on what these other guys can do, and they have to walk and he doesn't -- (UNINTELLIGIBLE) -- got to make a living, too.
FLOCK: Good deal. Folks, I appreciate it. Thanks very much for taking the time out from a very beautiful day here out in suburban Columbus. Finally warm in Ohio, Roger, as this whole heats up, as well.
COSSACK: Some guys get all the luck at the golf course, Jeff! Thanks for joining us.
Let me go back to our in-studio guests for a second. Chai, what about -- what implications, if any, does this have for businessmen outside of golf? What does this decision say about -- about running a business? I'm an individual now who runs a business. Should I be more on the alert because of -- because of this decision?
FELDBLUM: Well, businesses should have been on the alert since 1990, when the Congress of the United States decided that courts should have some business in the area of people with disabilities getting access to the mainstream of America, including the mainstream of playing golf or going to video stores or doing anything else. What the Congress said in 1990 was that people with disabilities could not be excluded. And when something in their disability made them unable to enjoy goods or services because of some rule that kept them out, the business had to change that rule unless it would fundamentally alter...
COSSACK: All right, let me -- let me let Alan also... RAUL: Sure.
COSSACK: ... weigh in on this.
RAUL: Yeah. Roger, businesses should definitely be on the alert as to how this law and other laws are going to be applied to them through the courts of the United States. I think, as Jeff's guests on that golf course very sensibly noted, courts are involved in -- in too much. We have a domination of too many aspects of society by lawyers and judges.
That's what's going on in this decision, and I think that both the majority and the dissenting opinion of Justice Scalia ought to be on the assignment desk of every law students on day one as to the power that federal judges in the United States have to decide absolutely every question and the arrogance that they will have in often exercising...
FELDBLUM: And thank God that...
RAUL: ... that power.
FELDBLUM: ... courts are there for civil rights.
COSSACK: All right. I'm afraid that's it. No more time because that's all the time we have today. Thanks to our guests.
Thank you for watching. Join us again tomorrow for another edition of BURDEN OF PROOF. I'll see you then.
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