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Law School Case Brief

Alfonso v. Fernandez - 195 A.D.2d 46, 606 N.Y.S.2d 259 (App. Div. 1993)


It is true that indirect coercion or penalties on the free exercise of religion, not just outright prohibitions, are subject to scrutiny under the First Amendment. This does not imply that incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs, require government to bring forward a compelling justification for its otherwise lawful actions. The crucial word in the constitutional test is "prohibit."


Petitioner parents brought a hybrid proceeding under N.Y. C.P.L.R. 78 against respondent New York City public schools and others, to prohibit a condom availability component of an HIV/AIDS education program, and an action for judgment declaring that the condom distribution component was violative of their constitutional rights. The Supreme Court of New York, Richmond County, dismissed the action. The parents appealed. The New York City school program was designed to educate students about and prevent the spread of HIV/AIDS. Part of the program called for high schools to make condoms available to students who requested them and did not include a provision for parental consent or "opt out."


Was the respondents' plan to dispense condoms to unemancipated minor children without the consent of their parents or guardians, or an opt-out provision, violative of the  substantive Due Process Clauses of the Fourteenth Amendment of the United States Constitution and New York Constitution?




The court reversed the judgment of the lower court, finding the condom distribution program violative of statutory law, common law, and the Fourteenth Amendment. The court prohibited the schools from dispensing condoms to unemancipated minor students without the prior consent of their parents or guardians, or without an opt-out provision. The court held that the condom availability component of the program: (1) was contrary to N.Y. Pub. Health Law § 2504 and common law because it constituted "health services" to unemancipated minor children without the consent of their parents or guardians; (2) violated the parents' due process rights to direct the upbringing of their children because the policy was not essential to serving the compelling governmental interest in that minors could freely obtain condoms elsewhere; and (3) did not violate the Free Exercise Clause under the First Amendment, U.S. Const. amend. I, and N.Y. Const. art. I, § 3 because it did not prohibit the parents and/or their children from practicing their religion, or directly or indirectly coerce them to engage in conduct or practices contrary to their religious beliefs.

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