I Got Rights!

© Dale Franks, 1998

It has become the new American mantra: "I got rights!" Everyone, it seems, has rights these days. More and more we have become preoccupied with the rights of the individual. Individuals do, of course have rights, and those rights are very important. But perhaps it’s time to think a second time about the idea of individual rights, and what they mean.

In America, a free society that recognizes a great deal of individual autonomy, there is a vast collection of rights. Each of these rights, however, tend to be in conflict with other rights. For example, you have a perfect right to make a fist and swing your arms wildly. But, as the Supreme Court put it, your right to swing your arm ends where my nose begins. We have a right to free speech, and can say any number of outlandish things without fear of official reprisal. But the right of free speech does not allow you to yell "Fire!" in a crowded movie theater, because the other people in the theater have a right not to be stampeded into a panic in which someone may be injured or killed. All of our rights, whether individual or collective, exist in delicate tension with each other.

One important right we are supposed to have is the right to freely associate with people we choose. This right allows us to form political parties, for instance. Above and beyond that, it also allows us to form non-political groups or associations to pursue common philosophical, religious, or recreational purposes. It allows us to select members based upon the criterion we choose, and to enforce such rules of conduct as we think are appropriate to the members of our association. The right of free association is a fundamental right in a free society. In America, it is also a right that appears to be in the process of constant erosion.

Which right is greater, the right of a group of individuals to freely associate with one another under rules they all agree to live by, or the right of a single individual force a group to change the rules the individual disagrees with?

A group is nothing more than association of individuals. Each individual chooses to join the group of his own free will and to abide by the group’s rules. The individual right of each member of the group to associate with each other must include the right to ban others who do not wish to accept the group’s rules, or the right is meaningless. If you are forced to associate with people you do not wish to include in your group, your association, whatever else it may be, is certainly not free.

Your individual right to join the group is not greater than the other individuals’ rights not to associate with you. In a free society, when faced with a group whose rules you do not like, the answer is not to force the group to change its rules and accept you. The answer is to join another group that does wish to associate with you, or to form your own group. If you force the group to admit you, you are trampling on their right of free association. In such a case, the only person whose right of free association is being upheld is yours. It seems difficult to construct an objective defense for eliminating everyone else’s right to free association in order to protect yours.

This week, a Federal judge ruled that the Professional Golfers Association must allow Casey Martin to play golf on the PGA tour while using a golf cart. In general, PGA rules require golfers to walk the entire four miles of the golf course. The judge decided that the PGA is a public accommodation, and that they must allow Martin to play. The PGA is a private association. It has a set of rules that have been in place for a substantial period of time. A Federal judge has now decreed one of those rules to be invalid.

The issue is not whether the PGA rules are fair. The issue is whether the PGA’s governing board, as a free association, can make the rules that determine what a golf game is, what the entry requirements to the sport should be, what the minimum level of performance is, and how a regulation golf game must be played. In this case, at least, it appears they cannot.

Let us assume that I wish to play golf on the PGA tour, but I have a handicap that does not allow me to fully extend my arms when I swing the club. As a result, my shots are shorter, and it takes me 95 strokes to complete a par-72 course. The Americans with Disabilities Act as it has been applied to the PGA says they must now make "reasonable accommodation" to handicapped players. Does the PGA now have to allow me to cut 23 strokes off of my final score so that the playing field is equal?

As tragic as it may be, Mr. Martin has a handicap that does not allow him to play competitive golf under the rules that apply to other players. Indeed, his inability to walk or stand for any significant length of time means that there is no major professional sport he can play without altering the rules to suit him. What if Mr. Martin has a fine throwing arm and wishes to play football? Does the NFL have to allow Mr. Martin to play football under the rule that no one can tackle him? What if he swings a mean bat? Does Major League Baseball have to allow him to play by assigning a base runner that runs for Mr. Martin every time he gets a hit?

Perhaps the PGA rule about not allowing players to use golf carts is a silly one. But it is the business of the PGA to determine the rules of professional golf. Even if the PGA decides to implement a whole series of silly rules, they should be allowed to do so, as long as those rules are enforced impartially upon all players.

If Mr. Martin was physically able to play the game, and the PGA banned him simply because if his race, the PGA would clearly be wrong. In that case, Mr. Martin would be able to meet all of the requirements for PGA play, and his exclusion would not be based upon his ability, but upon some extraneous factor. In such a case, the court would clearly be right in ordering the PGA to admit him. But what the court has done in this case is decide that since Mr. Martin is physically unable to play the game by the rules, the rules must be changed.

The vast majority of us, through lack of talent or for some other reason, do not have the ability to play a professional sport. Theoretically, the only admission requirement to play professional sports is the ability to compete at the top level of the sport with other professionals. It is perhaps, the last true meritocracy left in American society.

Or, at least, it was. In professional golf, if you are unable to play the sport by the rules, it appears that a federal judge can order the sport to change them.

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