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Cart, Anyone?

The central question in Casey Martin's lawsuit against the Professional Golf Association tour is whether walking from hole to hole during competitive tournaments is a fundamental part of the game of golf.

If the Supreme Court rules that it is, then Martin's Americans with Disabilities Act lawsuit against the tour likely will go up in smoke and the poor chap will probably be off the tour for good, since he cannot physically take the "good walk spoiled" four times a week like the rest of the fellows.

If, on the other hand, the justices rule that the use of a motorized cart to get Martin from hole to hole doesn't affect the "central competition" of golf (i.e. making good shots), then Martin likely will get a chance to continue his career, such that it is.

I don't get the feeling that many or even any of the justices spend a lot of time out on the links anymore, if any of them ever did to begin with. But the high court agreed to take Martin's case, and to hear it Wednesday, in order to resolve a classic conflict between two federal appeals courts.

Breaking these sorts of deadlocks is one of the primary functions of the highest court in the land; the country, after all, needs an ultimate referee in order to ensure finality and certainty among litigants and lower courts.

And because such a conflict exists, it doesn't necessarily mean, as it might in other circumstances, that the court's decision to hear the case means that the court wants to change the result in Martin's case. The justices may tip their collective hand somewhat during oral argument, but they have not yet done so.

The conflict arose nearly one year ago when two different federal appellate courts made directly opposing rulings on essentially the same facts and law.

In Martin's lawsuit, the 9th U.S. Circuit Court of Appeals last March upheld a trial court's decision in the golfer's favor under the ADA.

However, a day later the 7th U.S. Circuit Court of Appeals upheld a trial court's decision against another golfer who had sued the U.S. Golf Association under the ADA in order to use a cart during U.S. Open qualifying rounds.

In Martin's case, the appellate judges in California ruled that his congenital vascular disability, which causes excruciating pain at every step, was precisely the sort of disability which could be covered under the ADA as applied to the professional golf tour.

"All the cart does," wrote Judge William Canby, "is permit Martin access to a type of competition in which he otherwise could not engage because of his disability. That is precisely the purpose of the ADA."

In the other golf case, however, in which a fellow named Ford Olinger sought to use a cart, the appellate judges in Illinois ruled that such use "during the tournament would fundamentally alter the nature of the competition." So the justices essentially must decide which lower court got it right — on the law and on the facts.

The PGA, of curse, agrees with the Olinger ruling. The tour has told the justices in Washington that "no court has ever before held that a professional sport must waive a legitimate competitive rule to enable a would-be participant, disabled or not, to more successfully compete."

That argument makes a little sense since the justices, like all judges, are never crazy about trekking onto new legal ground. On the other hand, the argument sort of begs the question the court ultimately must decide: is the no-cart rule truly a competitive and necessary one?

Martin, of course, agrees with the ruling in his own case. His lawyers argue that allowing the disabled golfer to ride on a cart between holes is a "reasonable accommodation" designed to permit him access to activities and places, public or private.

But since the tour uses both public and private courses, in order for Martin to sway a majority of justices, his attorneys are going to have to assure them that allowing one golfer, and perhaps others in the future, to use motorized carts on the tour won't "fundamentally alter" the nature of the game.

Whether or not the justices hit the links now and again, it ought to be an interesting argument Wednesday and a fascinating ruling to read when it is released a few months down the road.

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