GWEN IFILL: The court stepped up to the bar on three contentious issues today. On two of them: Involving affirmative action and the separation of church and state, it decided not to act. On the third, the court said the Americans with disability act does protect one man's right to golf. Here to walk us through today's orders and opinions is Marcia Coyle, Supreme Court correspondent and Washington bureau chief for the National Law Journal. NewsHour regular Jan Crawford Greenberg is on maternity leave. Marcia, Casey Martin. Remind us of the case of Casey Martin, the golfer.
MARCIA COYLE: Casey Martin is a professional golfer who suffers from a degenerative circulatory disorder that pretty much has made his right leg useless.
It would be extremely painful for him and also hazardous to his health to walk a golf course. Shortly after he turned pro, he asked the Professional Golf Association, the PGA, if he could use a golf cart to finish a qualifying tournament to play in other PGA tournaments. The PGA said no. He sued the PGA under the Americans with Disabilities Act. He relied on a key part of that act that says owners and operators of public accommodations cannot discriminate against the disabled.
The act also requires those owners and operators to make reasonable modifications to enable the disabled to use their facilities unless the modification fundamentally alters the nature of the goods or services.
GWEN IFILL: Which is the issue here.
MARCIA COYLE: Exactly.
GWEN IFILL: ADA, the Americans with Disabilities Act, specifically mentions golf courses.
MARCIA COYLE: It does, yes.
GWEN IFILL: First of all. But they had to get into the nature of what a golf game is. What was the court's reasoning in deciding to support Casey Martin on this?
MARCIA COYLE: The majority, which was led by Justice John Paul Stevens, said essentially that walking is not an essential feature of golf. The court looked at the rules of golf that are used by all golfers and golf associations and said, walking is not there in the rules. Golfing essentially is about-- I'm going to paraphrase Justice Stevens-- moving a little ball from a little tee into a little hole. It has nothing to do really with walking. The court also noted that the PGA allows golfers to use golf carts in two of its other tournaments and it noted that Casey Martin, even using a golf cart, experiences more fatigue than the professional golfer walking the course.
GWEN IFILL: Justice Scalia and Clarence Thomas dissented on this case.
MARCIA COYLE: Yes, they did.
GWEN IFILL: It was a 7-2. Kind of unusual. Why?
MARCIA COYLE: Justice Scalia and Thomas felt that the court should not be examining the rules and deciding what the rules say, that it was the PGA that makes the rules and should interpret them. They also felt that the ADA did not cover professional golfers, that it applies to clients and customers of public accommodations, and that doesn't include a golfer.
GWEN IFILL: A public golf course, for instance.
MARCIA COYLE: Right.
GWEN IFILL: Is this something that would affect other sports as well?
MARCIA COYLE: I think it does. I think the fact that the court read who is covered under the public accommodations language of the act-- and it read it liberally-- means that it will apply to other sports. I also think that very, in a legal way, it's going to be very important to lower courts who have not heard the Supreme Court talk about what is a reasonable modification as we look at other ADA contexts, how to apply that.
GWEN IFILL: Two other cases. In this case the court decided not to act. Of course it's impossible to read a whole lot into what it is. Let's talk about the affirmative action case. They decided not to take up the University of Washington's appeal. Right now what stands is that the University of Washington can admit people, students based on race.
MARCIA COYLE: That's correct. That was the lower court ruling, that there was nothing unconstitutional about the law school considering race in its admissions policy. By leaving that ruling in place and not hearing the case, we now have a conflict in the country between the 9th circuit and the University of Washington case and the 5th circuit which ruled in 1996 or '95 in the University of Texas School of Law case that the use of race was unconstitutional there.
GWEN IFILL: Not only those cases but the Supreme Court's previous actions or inactions on this subject leaves this about as clear as mud, doesn't it?
MARCIA COYLE: Absolutely. I know it won't be the end of this line of cases. There are two cases in Michigan right now involving the University of Michigan's admissions policies for its undergraduates as well as the law school. Those two cases actually were decided in the same court by two different judges finding the exact opposite rulings. They're now making their way through the 6th Circuit. There's a case in Georgia involving the University of Georgia that I expect will also get to the Supreme Court and the original Texas case, Hopwood, involving the University of Texas has already been appealed to the Supreme Court.
GWEN IFILL: So what are we going to see this term?
MARCIA COYLE: If we see anything this term, we may see a decision by the court as to whether it will hear the Texas case, but we won't have any decisions until possibly next term.
GWEN IFILL: Another case. The 10 Commandments, whether the 10 Commandments can be part of a statue on a city hall lawn in Elkhart, Indiana.
MARCIA COYLE: Yes. This case reminds me a lot of the Christmastime nativity scene cases that the court every year gets appeals involving those situations. The court decided that it would not hear arguments in the Elkhart, Indiana 10 Commandments case. It was procureum denial of cert. We don't know how the justices voted but we did have a dissent from the denial to hear the case.
GWEN IFILL: How unusual is that to have a dissent from the denial?
MARCIA COYLE: Well it's not uncommon. What was unusual is to have another justice who voted --obviously voted not to hear the case reply to the dissent.
GWEN IFILL: What was the dissent and then what was the reply?
MARCIA COYLE: The dissent, Chief Justice Rehnquist and Justice Scalia and Thomas felt that the court should take the case and should rule that there was nothing wrong with displaying a six-foot monument of the 10 Commandments on city grounds. And they felt that the city had justified the monument by saying the 10 Commandments are one of the building blocks in our legal history as well as in our code of conduct and did not have a religious purpose. Justice John Paul Stevens replied to this because, one, he feels there should never be a written dissent to a denial to hear a case because it leaves the impression that what the court did was more important than really what it is, which is simply saying we don't want to hear this case for whatever reason.
GWEN IFILL: The court is not actually ruling on anything.
MARCIA COYLE: That's right. There's no precedent. The lower court opinion stands. That's all. But he also felt that he had to reply because he felt the dissent created a wrong impression or didn't give the... All the facts, so to speak, about this case. He noted that this monument, the first two lines of the monument, were in significantly larger type than the rest of the monument. And those first two lines said "the Ten Commandments. I am the Lord thy God."
GWEN IFILL: Didn't Justice Rehnquist also mention that on the wall of the Supreme Court is a painting of Moses with the Ten Commandments?
MARCIA COYLE: Yes. But there are no words, just pictures and Justice Stevens felt that that emphasis on the language showed a religious purpose. Also he noted that when the monument was dedicated, believe it or not, in 1958, it was dedicated by a priest, a rabbi and a protestant minister. And there was no real secular message at the time.
GWEN IFILL: How does a court decide not to take a case? Do they vote or how does that work?
MARCIA COYLE: They do vote. You need four votes for the court to agree to hear arguments in a case. Why they wouldn't take this case will remain a mystery, but generally they won't take a case if there's some underlying problem as in the university of Washington case, the affirmative action, there was no trial. There was no record for the court to deal with. They may be waiting for a better case with a trial record and the same with this. They may be waiting for a better case.
GWEN IFILL: Marcia Coyle, thank you very much for joining us.
MARCIA COYLE: My pleasure. Thank you.