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Optimism Abounds For Proponents Of Broader Legalized Sports Gambling

January 7, 2018
The showdown presentations regarding sports wagering in front of the U.S. Supreme Court earlier this month resulted in great optimism among proponents of broader legalized sports gambling who are hoping for a ruling in their favor sometime in the first half of next year.

It was not so much the persuasiveness of the competing oral arguments in the case pitting New Jersey versus the country's major sports gambling organizations that had legalized sports advocates smiling. Rather, it was the questions the justices posed to each side during the court session Dec. 4.

Supreme Court watchers reference those questions from the bench as a weathervane for how certain justices are leaning. After all, the briefs from both sides have been filed for quite some time, so oral arguments are more an opportunity for the justices to put the lawyers to the test.

For those keeping score -- and after all, this is a sports publication -- questions from five of the nine justices have been interpreted as showing a lean toward New Jersey, which has been trying for years to overcome a federal law that has kept the state's casinos and race tracks from offering sports betting.

Of the remaining justices, three seemed to pose questions that could be viewed as a lean toward the anti-sports gambling law being lawful.

This really is not a partisan issue, but since it always comes up these days, the five justices with the tilt toward Jersey could be viewed as primarily but not exclusively conservative and the three who leaned the other way are regarded as liberal. Justice Clarence Thomas, regarded as a conservative, reportedly did not speak.

The case revolves around a federal law known as the Professional and Amateur Sports Protection Act (PASPA). The oft-told tale of PASPA, which just observed its 25-year anniversary, is that it bans the vast majority of states from authorizing and regulating sports gambling while grandfathering four states that already had it in some fashion when the law was passed in 1992: Nevada (full sports gambling) and Delaware, Montana and Oregon (limited sports gambling).

In recent years, two states have tried to offer full sports gambling -- New Jersey and Delaware -- but were stymied when professional sports leagues and the NCAA went to federal court and prevailed.

Eventually, New Jersey tried an end-run by repealing its own sports gambling laws as those laws applied to casinos and racetracks. The sports organizations went to court again to stop New Jersey, and again they won in federal district court and in front of a federal appeals panel.

Finally, New Jersey appealed to the Supreme Court, and in a surprise plot twist, actually got a hearing.

Among the legal arguments in the case, New Jersey contends PASPA unconstitutionally "commandeers" the states to not allow sports gambling. In opposition, the sports organizations argue that pre-empting a state from allowing sports wagering is not the same as "commanding" a state to do a specific thing and, consequently, is permissible under the Constitution.

And that, folks, is what makes for horse races.

However, consider this observation from Supreme Court Justice Anthony Kennedy during oral arguments:

"So the citizens of the state of New Jersey are bound to obey a law that the state doesn't want but that the federal government compels the state to have."

In other words, if that's not "commandeering," what is?

As an aside, six years ago New Jersey voters went to the polls and actually approved sports wagering.

OK, so what happens now with the high court, which will rule perhaps in the spring?

- The Supreme Court could rule PASPA is flat-out unconstitutional, which would allow New Jersey and a bunch of other states to get the sports books up and running pronto.

- The Supreme Court could rule that PASPA is entirely within Constitutional allowances, which means that only Congress could change the sports wagering landscape by amending or repealing PASPA.

- Or the Supreme Court could issue a ruling that narrowly but favorably impacts New Jersey's unique attempt to allow sports wagering and green lights sports betting in that state.

In the latter case, the Supreme Court would sidestep broader ramifications of a full smackdown of PASPA, a result that could affect many other state-federal issues such as marijuana, physician-assisted suicide and even self-driving cars, according to legal scholars.

If the Supreme Court does a tightrope walk and gives legalized sports-wagering proponents a limited win in New Jersey, that state's outgoing governor, Chris Christie, has said Jersey would have the sports books operating in a matter of weeks. There's a good chance Delaware, which already offers parlay betting on NFL games at its casinos, will try to be close behind.

Many other states are poised to use whatever blueprints they need to follow to get sports book operations into their casinos and racetracks, but all that will take some time.

In the case of Maryland, that time will likely be years. In order to have sports gambling in Maryland, a statewide referendum is required. The next opportunity for that is next November, but the General Assembly would have to move at the speed of light to make a 2018 referendum happen -- an extremely slim chance considering the General Assembly's 2018 session will probably be ended by the time the Supreme Court even rules.

Realistic bottom line: Even with a court ruling favorable to sports gambling, there will be no referendum in Maryland on sports wagering until at least 2020.

Meanwhile, casinos in New Jersey -- and perhaps even in Delaware and Pennsylvania -- will be writing those sports wagering tickets and becoming popular destinations for every hot sports date from March Madness to the Super Bowl.

Issue 240: December 2017 

Originally published Dec. 15, 2017