[TMIC] definition of disability-- Is It Glasses? False Teeth? (http://www.nytimes.com/library/politi

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April 28, 1999

Justices Wrestle With the Definition of = Disability: Is=20 It Glasses? False Teeth?=20

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By LINDA GREENHOUSE

WASHINGTON --=20 The Supreme Court began grappling Tuesday with the=20 definition of disability, in the first of three = cases that=20 raise the question of whether a person who can = restore=20 normal functioning by taking a daily pill, wearing = glasses=20 or even strapping on an artificial limb can be = considered=20 disabled, and therefore protected against = discrimination on=20 that account, under federal law.=20

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The lively argument Tuesday, to be followed by = two more=20 Wednesday, found the justices deeply engaged and = also quite=20 visibly confused by their encounter with the = far-reaching=20 but vaguely worded Americans with Disabilities Act = of 1990.=20 "I don't see how to get this statute to = work,"=20 Justice Stephen G. Breyer said at one point to a = lawyer=20 representing a truck mechanic whose high blood = pressure,=20 although controlled by medication, led to his = dismissal by=20 United Parcel Service.=20

The federal appeals court in Denver ruled last = year that=20 because conditions claimed as disabilities should be = viewed=20 in their corrected or medicated state, the mechanic, = Vaughn=20 Murphy, was not disabled and was not entitled to sue = under=20 the law.=20

"If we were to say, 'You're right, your = client is=20 disabled,' is it then necessary to say that everyone = who=20 uses false teeth or glasses is disabled, or is there = a way=20 of drawing a line?" Breyer wanted to know.=20

Justice Antonin Scalia, removing his glasses and = waving=20 them in the air, observed that "I couldn't do = my=20 current job without them." He continued: = "I guess=20 it's nice if a majority of Americans can claim the = benefit=20 of the law. It's comforting. But it doesn't square = with what=20 Congress seemed to be talking about."=20

Both Murphy's lawyer, Stephen McAllister, and = James=20 Feldman, an assistant solicitor general also arguing = for the=20 mechanic on behalf of the government, said that = Congress=20 intended disabilities to be considered in their=20 "unmitigated" state. There was = considerable debate=20 in the courtroom about whether this view, or the = employer's=20 contrary view that correction must be taken into = account,=20 fit more clearly with the preamble to the 1990 law, = in which=20 Congress referred to 43 million Americans with = physical or=20 mental disabilities.=20

Several justices observed that counting every = nearsighted=20 or hypertensive person would produce a figure much = higher=20 than 43 million, meaning that Congress could not = have=20 intended that approach. But Feldman said that under = the=20 employer's view, the number would be much smaller = than 43=20 million.=20

Justice David H. Souter asked UPS lawyer William = Kilberg=20 why, in light of the law's ambiguity, the court = should not=20 follow its usual practice and defer to the = government's view=20 as a "tie breaker."=20

Kilberg said that in his view, it was clear that = Congress=20 was concerned with the "functional = limitations"=20 actually imposed by disabilities, which should = therefore be=20 assessed in their treated or corrected state.=20

The law provides several alternative definitions = of a=20 disability, including an "impairment that = substantially=20 limits one or more of the major life = activities" and=20 "being regarded as having such an = impairment."=20 Justice Sandra Day O'Connor suggested that the=20 "regarded as" definition, which she = described as=20 dealing with "mistaken beliefs about a person's = ability," offered the best fit for Murphy's = case.=20

The court has not yet interpreted the = "regarded=20 as" portion of the disability act, and the = justices'=20 interest in it Tuesday indicated that this case, = Murphy Vs.=20 United Parcel Service, No. 97-1992, could become = their means=20 for doing so. The justices also referred many times = Tuesday=20 to the cases they will hear Wednesday, both of which = involve=20 employees with vision impairments.=20

Earlier Tuesday, hearing arguments in a challenge = to a=20 federal ban on broadcast advertisements by gambling = casinos,=20 the justices expressed considerable doubt about = whether the=20 current version of the 65-year-old law can withstand = First=20 Amendment scrutiny.=20

What was once a broad prohibition against = broadcast=20 advertising for gambling now has exceptions for = state-run=20 lotteries and for casinos owned by Indian tribes. = Bruce=20 Ennis, arguing for a group of New Orleans = broadcasters who=20 are challenging the law, said it was "so = riddled with=20 exceptions that it cannot materially advance the=20 government's asserted interests" in reducing = the social=20 costs of gambling and helping states without casinos = to=20 shield their residents from exposure to them.=20

The case, Greater New Orleans Broadcasting Vs. = United=20 States, No. 98-387, has attracted considerable = attention for=20 the constitutional light a decision might shed on = government=20 efforts to limit advertising about other lawful = activities,=20 such as smoking. The justices did not appear to be = pressing=20 toward a broad ruling, however, instead peppering = Ennis and=20 the government's lawyer, Deputy Solicitor General = Barbara=20 Underwood, with specific questions about the numbers = and=20 locations of Indian and non-Indian casinos.=20

Several justices said they were uneasy about a = law that=20 permitted Indians to speak, by means of advertising, = when=20 others could not. "Is it permissible for = Congress to=20 favor a particular group through its speech = statutes?"=20 Justice Anthony M. Kennedy asked Ms. Underwood, = adding:=20 "Can it use speech as a element of political=20 largesse?"=20

Scalia said that viewed from another perspective, = the=20 distinction was not between speakers but between = subjects.=20 Anyone can advertise Indian-owned casinos and no one = can=20 advertise non-Indian casinos, Scalia said, adding: = "I=20 can't and the Indians can't."=20

"And rich and poor can sleep under = bridges,"=20 Souter commented.=20