Indiana Law Review


Sex, Sectarians and Secularists:
Condoms and the Interests of Children

Yvonne A. Tamayo'

Introduction

Adolescents.^ Sex. Condoms. Religion. Some parents are eager to discuss
these subjects; many are not. Recently some parents have brought court actions
against public schools challenging state acts that they perceive as a threat to their

religious beliefs and their right to privacy in raising their teenage children.

This Article explores the status of litigation concerning "condom availability"

programs and the context in which that litigation arises. Focusing on federal

constitutional issues, it critiques judicial decisions v^hich, while acknowledging

the potential harm that AIDS presents to adolescents, nonetheless evaluate the
claims of parents opposing condom -accessibility programs and find that privacy-
based constitutional interests outweigh state interests in attempting to provide

young people with protection from the possibility of deadly infection.

Part I discusses the leading New York and Massachusetts condom cases and
their conflicting decisions. Part 11 examines the meaning of "coercion" in Free

Exercise Clause doctrine and considers the operation of coercion in American

culture in ways that strongly affect and influence adolescents. Part III examines

the complexities presented by the specifically sexual nature of the matter being

regulated by the state in condom availability programs. It emphasizes the
existence of widespread popular denial of the reality and significance of AIDS as
a threat to young people's health and lives. Part IV examines the national

discordance existing in the United States among religious and political ideologies
contending to determine how, and by whom, control over children should be
exercised to serve their "best interests."

I. Condom Litigation

High schools across the country have begun to implement condom availability
programs in an effort to reduce the exposure of adolescents to the deadly AIDS
virus through sexual contact. Many of these programs include "opt-out"
provisions whereby parents may place the name of their child on a list identifying
that child as ineligible to obtain condoms from the school. Some programs,
however, do not include "opt-out" provisions. As the number of programs without

* Legal Writing Instructor and Adjunct Lecturer, Suffolk University Law School; B.S.,

1977, Louisiana State University; J.D., 1987, Loyola Law School. I am deeply grateful to Marie

Ashe for her help and support. I would also like to thank Kate Hutteman, Helena O'Brien, Allison

Quinn and Matt Selig for assistance in research.

1 . Throughout this Article, the terms "adolescents" and "teenagers" will refer to young

persons aged twelve to eighteen, the approximate ages of the students in grades seven through

twelve for whom the condom availabiHty programs were instituted in Curtis v. School Comm., 652
N.E.2d 580 (Mass. 1995), cert, denied, 116 S. Ct. 753 (1996) and Alfonso v. Fernandez, 606

N.Y.S.2d 259 (N.Y. App. Div. 1993).



594 INDIANA LAW REVIEW [Vol. 29:593

"opt out" provisions for children of objecting parents increases, so too will the

number of lawsuits filed to challenge the states' aggressive measures in providing
adolescents broad access to condoms. Increasingly, such actions are being brought

by parents of high-school-aged children attending public schools, in an effort to
reduce "messages" communicated by schools to students that conflict with their
parents' rehgious principles favoring sexual abstinence.

At the time of this writing, only two state courts have opined on the
constitutionality of condom availability in public schools.^ Those recent opinions,
from New York and Massachusetts, are not in agreement, and their rationales and
holdings make clear that the condom cases are the product of a highly incendiary
debate not likely to be soon resolved. The alarming prevalence of AIDS among
adolescents,^ the ever-increasing influence of religious groups on public policy,"*

and the fact that litigants contesting "condom availability" programs assert rights
protected by the First and Fourteenth Amendments to the United States
Constitution^ all assure that an increase in "condom" Htigation is imminent.

In February 1991, the New York City Board of Education voted to establish
an expanded HIV/AIDS education program in the public high schools of New
York City. Each high school was required to adopt a curriculum incorporating
lessons on the methods of AIDS prevention.^ The aspect of the program under
attack in Alfonso v. Fernandez involved the provision of condoms to students in
the seventh through twelfth grades.^ Under the New York City program, condoms
became available to students "for the asking," regardless of parental wishes.
Although students were in no way required to participate in the program, the
Board decided against an "opt-out" provision because students whose parents

disapproved of premarital sexual relations and who nonetheless were sexually
active might especially be in need of a place where they could obtain condoms
without having to account for any expenditures of funds or without having to

identify themselves before they could be given a condom.^

The condoms were to be dispensed by trained health professionals only to a
student who requested them, and the student was to be given a pamphlet to read
in the presence of the person administering the program.^ Afterwards, the

administrator would provide a condom and ask if the student had any questions. ^^

The pamphlet read as follows:

2. Curtis, 652 N.E.2d at 580; Alfonso, 606 N.Y.S.2d at 259.

3. An estimated 40,000 to 50,000 adolescents are infected annually with HIV. Alan

GUTTMACHER INSTITUTE, SEX AND AMERICA'S TEENAGERS 38 (1994).

4. See Joe Klein, Learning How to Say No: Clinton 's New Teen Pregnancy Program Will

Counsel Abstinence, NEWSWEEK, June 13, 1994, at 29.

5. See Curtis, 652 N.E.2d at 580; Alfonso, 606 NY.S.2d at 259.

6. A//on5o, 606N.Y.S.2dat261.

7. Id.

8. Id. at 269 (Eiber, J., dissenting).

9. Nick Chiles, Lines Formfor School Condoms; Students Back the Program, Newsday,

Nov. 27, 1991, at 5.

10. Id.



1996J CONDOMS DISTRIBUTION 595

RISKS AND BENEFITS OF THE USE AND MISUSE OF
CONDOMS:
The only 100 percent effective way to prevent the sexual spread of HIV
and other sexually transmitted diseases is not to have sexual intercourse

(abstinence). If you do have sexual intercourse of any kind, the only way

to help protect yourself is to use a condom.

The main reason a condom may not provide protection is because it
is not used correctly. If you use condoms, you can help protect yourself

by reading and learning how to use them properly. The person making
condoms available in your school can answer questions or can refer you

to other people who can give you additional information on condom
usage.

There are two reasons a condom may not protect you.
1

.

It may break.
2. It may slip and leak.

Knowing how to use a condom properly can reduce these risks. If you
have additional questions, you can ask the person who is making condoms
available in your school.''

Parents of various New York City public school students filed suit against the
New York City Board of Education'" challenging the condom program as
involvmg statutory and state and federal constitutional violations.'^ At issue in

Alfonso V. Fernandez^"^ was whether the voluntary condom program was a "health
service" requiring parental consent under New York law,'^ and whether the

11. /J.

12. Joseph A. Fernandez, Chancellor of the New York City Board of Education was also
named as a defendant in this case.

13. Alfonso V. Fernandez, 584 N.Y.S.2d 406 (N.Y. Sup. Ct. 1992), rev'd, 606 N.Y.S.2d 259

(N.Y. App. Div. 1993). The parents alleged that the condom program violated New York law
requiring parental consent for the distribution of "health services" to minors; they also asserted

violations of their free exercise rights and due process rights to raise their children as they saw fit

under the First and Fourteenth Amendments of the Constitution, and under similar state

constitutional provisions. See N.Y. CONST, art. I, § 3; N.Y. CONST, art. I, § 6; N.Y. PUB. HEALTH

Law § 2504 (McKinney 1993).
14. 584 N.Y.S.2d 406 (N.Y. Sup. Ct. 1992).

15. N.Y. Pub. Health Law § 2504 (McKinney 1993 & Supp. 1996) dispenses with a
common-law parental consent requirement in only six enumerated instances:

1

.

Any person who is eighteen years of age or older, or is the parent of a child

or has married, may give effective consent for medical, dental, health and

hospital services for himself or herself ....

2. Any person who has been married or who has borne a child may give

effective consent for medical, dental, health and hospital services for his or



596 INDIANA LAW REVIEW [Vol. 29:593

condom program infringed on the parents' free exercise rights'^ or their rights to
raise their children as they saw fit.'^ The lower court found that although the
condom program was "health related," it did not qualify as a "health service"
under section 2504 of New York Public Health Law.'^ It also held that because
of its voluntary aspect, the condom program did not infringe on the parents' right
to raise their children or to teach them the doctrines of their religious beliefs.'^

her child.

3. Any person who is pregnant may give effective consent for medical, dental,

health and hospital services relating to prenatal care.

4. Medical, dental, health and hospital services may be rendered to persons of

any age without the consent of a parent or legal guardian when, in the

physician's judgment an emergency exists and the person is in immediate

need of medical attention and an attempt to secure consent would result in

delay of treatment which would increase the risk to the person's life or health.

5. Where not otherwise already authorized by law to do so, any person in a

parental relation to a child as defined in section twenty-one hundred sixty-

four of this chapter and, (i) a grandparent, an adult brother or sister, an adult

aunt or uncle, any of whom has assumed care of the child and, (ii) an adult
who has care of the child and has written authorization to consent from a

person in a parental relation to a child as defined in section twenty-one

hundred sixty-four of this chapter, may give effective consent for the

immunization of a child. However, a person other than one in a parental

relation to the child shall not give consent under the subdivision if he or she

has reason to believe that a person in parental relation to the child as defined

in section twenty-one hundred sixty-four of this chapter objects to the

immunization.

6. Anyone who acts in good faith based on the representation by a person that

he is eligible to consent pursuant to the terms of this section shall be deemed

to have received effective consent.

16. Violations of the following federal and New York State constitutional rights were

asserted: "Congress shall make no law respecting an establishment of religion, or prohibiting the

free exercise thereof . . . ." U.S. CONST, amend. I; and "The free exercise and enjoyment of

religious . . . worship, without discrimination or preference, shall forever be allowed in this state

to all mankind " N.Y. Const, art. I, § 3.

17. "No State shall . . . deprive any person of life, liberty, or property, without due process

of law . . . ." U.S. Const, amend. XIV. "No person shall be deprived of life, liberty or property

without due process of law." N.Y. Const, art. I, § 6.

The parental liberty interest in directing the upbringing and education of children was first

recognized by the United States Supreme Court in Meyer v. Nebraska, 262 U.S. 390 (1923). The

Court found that while it had not "attempted to define with exactness the liberty" guaranteed by the

Fourteenth Amendment, "without doubt, it denotes not merely freedom from bodily restraint but

also the right of the individual ... to establish a home and bring up children, [and] to worship God

according to the dictates of his own conscience . . . ." Id. at 399.

18. /\//bn.yo, 584N.Y.S.2dat409.

19. /J. at 410.



1996] CONDOMS DISTRIBUTION 597

Accordingly, the court rejected the plaintiffs' argument that the condom
availability program violated their constitutional rights, and it dismissed the

plaintiffs' complaint.^" The parents appealed.

In December 1993, the New York Appellate Division Supreme Court issued
the first ruling in the country determining whether a "condom availability"
program in public high schools was constitutional.^' The New York Appellate
Division defined the three issues presented in Alfonso as: 1 ) whether the "condom
availability" program violated the parents' right to freely exercise their religion^''

under the First Amendment and a similar state constitutional provision; 2) whether
the Fourteenth Amendment and state constitutional rights of the parents to raise
their children as they deemed fit had been violated;^^ and 3) whether the
availability of condoms in the public schools constituted a provision of a "health
service" to unemancipated minor children that statutorily required parental

consent.^"* On appeal, the School Board prevailed on the free exercise argument,
but the remaining two issues were decided in favor of the parents, and the condom
program was struck down.^^

The parents in Alfonso prevailed on the state statutory-based claim that the
provision of condoms in the schools to minors under the age of eighteen was a
"health service" requiring parental consent.^^ The court noted that it found little

guidance in determining what type of services or treatment were encompassed by

the "health services" law, because neither the statute nor case law define that

term.^^ The statute provides: "Any person who is eighteen years of age or older,
or is the parent of a child or has married, may give effective consent for medical,
dental, health, and hospital services for himself or herself . . . ."^^

The nature of condoms as protective devices, in no way intrusive to the body,
could have supported a court finding that provision of condoms was not a "health
service" such as the typically invasive medical and health services provided by

dentists or hospitals. Indeed, providing a student with a condom and instruction
for its usage seems less medically intrusive than treating a student with aspirin.

While the latter would seem cle2u*ly a delivery of "health services," the former
could be regarded as delivery of "health education."^^ If the court had fully

20. Mat 4 13- 14.
21

.

Alfonso V. Fernandez, 606 N.Y.S.2d 259 (N.Y. App. Div. 1993).

22. See supra note 16. Because the state constitutional claims asserted by the plaintiffs were

ignored by the court in its analysis, this Article will focus on the alleged federal constitutional

violations.

23. See supra note 17.

24. Alfonso, 606 N.Y.S.2d at 262.

25. Id. at 268. The defendants' appeal to New York's highest court was denied on May 3,
1994. Alfonso v. Fernandez, 637 N.E.2d 279 (N.Y. 1994).

26. Alfonso, 606 N.Y.S.2d at 263. See supra note 1 5 for the text of N.Y. PUB. Health Law
§ 2504.

27. Alfonso, 606 N.Y.S.2d at 263.

28. N.Y. Pub. Health Law § 2504 (1) (McKinney 1993 & Supp. 1996) (emphasis added).
29. Alfonso, 606 N.Y.S.2d at 263. The court distinguished "health education" from "health



598 INDIANA LAW REVffiW [Vol. 29:593

explored the legislative intent giving rise to the "health services" statute, it would
have found that in New York, no parental consent is needed for some minors to
obtain abortions^^ or for all minors to be treated for sexually-transmitted diseases.

^'

Further, minors who are eligible for benefits under certain federally-funded
social service programs may obtain contraceptives without parental consent.^^ In
fact, the court's identification of condoms as a "health service" produced a set of
discordant possibilities: minors could obtain treatment without parental consent

for the consequences of unprotected sex, but could not, on their own, obtain

condoms that might prevent those consequences. Additionally, financially-
disadvantaged minors could obtain condoms without parental consent, but minors

not receiving welfare or other federal government benefits would be denied similar

access to condoms. Notwithstanding the arguments in favor of a finding that

condoms were not intended to be included within the reach of the statutory
language requiring parental consent, the court branded the New York City
program a "means of disease prevention," and thus a "health service" requiring

parental consent.^^

services" in the following manner: "The distribution of condoms is not . . . an aspect of education

in disease prevention, but rather is a means of disease prevention. Supplying condoms to students

upon request has absolutely nothing to do with education, but rather is a health service occurring

after the educational phase has ceased." Id.

30. Id. at 271 (Eiber, J., dissenting). The New York statutes allow some minors to obtain

abortions without parental consent as follows:

Any person who is eighteen years of age or older, or is the parent of a child or has

married, may give effective consent for medical, dental, health and hospital services for

himself or herself, and the consent of no other person shall be necessary ....

Any person who is pregnant may give effective consent for medical, dental, health

and hospital services relating to prenatal care.

Medical, dental, health and hospital services may be rendered to persons of any age

without the consent of a parent or legal guardian when, in the physician's judgment an

emergency exists and the person is in immediate need of medical attention and an

attempt to secure consent would result in delay of treatment which would increase the

risk to the person's life or health.

N.Y. Pub. Health Law §§ 2504 (1), (3), (4) (McKinney 1993 & Supp. 1996).
3 1

.

N.Y. Pub. Health Law § 2305 (1993) states: "A licensed physician . . . may . . . treat

... a person under the age of twenty-one years without the consent or knowledge of the parents or

guardian of said person, where such person is infected with a sexually transmissible disease, or has

been exposed to infection with a sexually transmitted disease."

32. The Medicaid and Aid to Families with Dependent Children provisions of the Social

Security Act require provision of family planning services and supplies to program recipients

including sexually active minors. See 42 U.S.C. §§ 602(a)(15), 1396d(a)(4)(c) (1994). State laws

governing these programs require contraceptives be made available to eligible minors. See N.Y.

Soc. Serv. Law § 350(1 )(e) (McKinney 1993). Additionally, Title X of the Public Health Service
Act dictates that the services provided to minors remain confidential. See 42 U.S.C. § 300(a); 42

CFR §§ 59.15, 59.5(a)(4) (1994); Alfonso, 606 N.Y.S.2d at 264.

33. A//on.so, 606 N.Y.S.2d at 263.



1996] CONDOMS DISTRIBUTION 599

The parents' state and federal constitutional claims were based on assertions

that in instituting and carrying out the condom program, the pubHc schools were
"bombarding" their children with information about sex and AIDS, and
influencing the students to succumb to peer pressure and to engage in premarital

sexual activity that was sinful and contrary to their religious beliefs. ""* As a basis
for finding a violation of their free exercise rights, the court required the parents

to show that the condom program denied them or their children the ability to
practice their religion, or otherwise coerced them in the nature of those practices.-'^

In its analysis, the court, guided by existing judicial precedent, noted that coercion

has been found where one who refuses to participate in a required state activity is
sanctioned,^^ is held criminally liable,''^ or is denied a benefit.^^

The New York court found that participation in the New York City condom
availability program was wholly voluntary.^^ Students were in no way required to
obtain condoms from the school, and no penalties were imposed for failure to do

so/" Additionally, a student was given a condom only if he or she requested one,
and only upon his or her own individual request would a student receive
informational literature on the proper use of condoms/^ The Alfonso court readily
determined that the availability of condoms did not in any way prohibit the parents
and their children from practicing their reUgion, and that it did not directly or

indirectly compel them to engage in conduct contrary to their religious beliefs/^

On the basis of these findings, the court denied the parents' free exercise claim."*^
The plaintiffs prevailed on their claim that the school condom program

violated their state and federal constitutional parental liberty rights'^'* by

encouraging their children to use contraceptives, which trespassed on their right

to influence and guide their children's sexual behavior without state interference."^^

In its analysis of whether the condom program violated parental privacy rights,
the Alfonso court conducted a threshold inquiry examining whether an intrusion

into the parent-child relationship had occurred. Without attempting to define the

level of interference necessary to constitute a governmental intrusion, the court

concluded that the condom program was intrusive because it compelled parents
to send their children "into an environment where they had unrestricted access to

34. Id. at 267.

35. Id.

36. St. Bartholomew's Church v. City of New York, 914 F.2d 348 (2d Cir. 1990), cert,

denied, 499 V.S. 905 (\99\).

37. Wisconsin v. Yoder, 406 U.S. 205 (1972).

38. Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707 (1981); Sherbert

V. Verner, 374 U.S. 398 (1963).

39. Alfonso, 606 N.Y.S.2d at 265.

40. Id at 266.

41. /J. at 261.

42. Id at 268.

43. Id. at 267.

44. See supra notes \6-\l.

45. Alfonso, 606 N.Y.S.2d at 267.



600 INDIANA LAW REVIEW [Vol. 29:593

free contraceptives . . . .'"^^ However, the court found a compulsory or coercive

state act without any reference to the United States Supreme Court's prior
treatment of state compulsion or coercion.'^''

The Supreme Court has established that in determining whether state intrusion
has occurred, the state act will be found coercive only when persons are compelled
to submit to a mandatory state edict that impedes their right to freedom of religion

and provides no alternative options/^ Specifically, examples of coercion have

been found where parents are forced, under threat of criminal sanctions, to send

their children to public schools rather than religious schools;"*^ to refrain from

teaching foreign languages in private schools;^^ or where parents were prohibited

from teaching their children in alternative educational environments as required

by their religion.^^ In light of the voluntary nature of the Alfonso condom
program, it is difficult to imagine that the facts in that case could be construed as

satisfying the United States Supreme Court's definition of coercion. Nonetheless,

the New York City public schools' condom program was found to be coercive,
and thus sufficiently intrusive to establish the first aspect of the family privacy

standard.^^

Having detemiined that the state had intruded on the parents' liberty rights in

rearing their children, the court considered a second aspect of the parental liberty,

or privacy claim: whether the state could show a compelling interest for the
condom program and whether the program, lacking an "opt ouf provision, was
necessary to meet that interest.^^ The court approached the compelling interest

analysis by observing that the absence of the condom program would not cause
students difficulty in acquiring condoms. It pointed out that condoms could be
legally purchased by minors at stores "next to vitamins and cold remedies," for

about "the same price as a slice of pizza," and could also be obtained at federally-

funded family planning clinics.^"* Because condoms could be purchased or
obtained from sources other than the public schools, the state's provision of free

contraceptives in the school setting was deemed not sufficiently compelling to
override the perceived intrusion into the familial unit.^^ The court further stated:

46. Id. at 266.

47. The United States Supreme Court has not specifically stated that coercion or compulsion

is the standard for establishing the type of interference necessary to show a state violation of family

privacy; however, this standard has been utilized by the Court in that it has not proceeded further

in its analysis if a state act is not deemed coercive. See Wisconsin v. Yoder, 406 U.S. 205 (1972);

Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923).

48. Yoder, 406 U.S. at 219; Pierce, 268 U.S. at 530; Meyer, 262 U.S. at 399.

49

50

51

52

53

54

55

Pierce, 26SV.S. at 510.

Meyer, 262 U.S. at 390.

KoJ^r, 406 U.S. at 205.

Alfonso V. Fernandez, 606 N.Y.S.2d 259, 263 (N.Y. App. Div. 1993).

Id. at 266.

Id. at 267.

Id.



1996] CONDOMS DISTRIBUTION 601

Students are not just exposed to talk or literature on the subject of sexual

behavior; the school offers the means for students to engage in sexual

activity at a lower risk of pregnancy and contracting sexually transmitted

diseases .... We conclude that the policy . . . interfer[es] with parental
decision-making in a particularly sensitive area.^^

The Alfonso court ended its consideration of this issue with the observation

that the program would have passed constitutional muster if it had allowed parents

who were interested in providing "appropriate guidance and discipline" to their
children to "opt out" of the program." This dicta seems to express a judicial

perception that if parents wish to raise their children "appropriately," they should

deny them the option of obtaining condoms in their schools. The language of the
court in Alfonso is illuminating in that it exposes a judicial aversion to unfettered

discourse regarding sexually-related issues, particularly where adolescents are

involved. Thus, the opinion of the court echoes the plaintiffs' beliefs that for

schools to go beyond "talk and literature" in helping sexually active adolescents

protect themselves from deadly disease is, on balance, not as important as

upholding the "private" sanctum of the family.

Unlike the New York appellate court decision, the Massachusetts lower court
and Supreme Judicial Court rulings in the case Curtis v. School Committee^^
support state efforts to combat the exposure of adolescents to HIV, in spite of

parental assertions that the state condom availability program violates personal and
religious rights. The Curtis^^ case commenced on May 22, 1992. Five students
and their parents^^ challenged two public schools^' under the jurisdiction of the

School Committee of Falmouth, Massachusetts, which had instituted a condom
availability program with no "opt out" provision for students in grades seven

through twelve.^^ At Lawrence Junior High School, students could receive
condoms free of charge from the school nurse. Prior to obtaining a condom, a
student would be counseled and would receive pamphlets providing information

about condom use and sexually transmitted diseases.^^ At Falmouth High School,
students could either request free condoms from the school nurse or purchase them

for $.75 from the condom vending machines in the boys' and girls' restrooms.^"*

56. Id. at 266.

57. Id. ^i 261.

58. 652 N.E.2d 580 (Mass. 1995), cert, denied, 116 S. Ct. 753 (1996).

59. Curtis v. School Comm., No. 92-518 (Mass. Sup. Ct. Oct. 8, 1993); Curtis v. School

Comm., 652 N.E.2d 580 (Mass. 1995).

60. Brief of Amicus Curiae at 15-16, Curtis v. School Comm., 652 N.E.2d 580 (Mass.

1995).

61

.

The defendants in Curtis were the Falmouth School Committee, the superintendent of

the Falmouth public schools, the principal of Falmouth High School, and the principal of the

Lawrence Junior High School in Falmouth. Curtis, 652 N.E.2d at 580 & n.2.
62. Id. at 582.

63. Id at 582-83.

64. Id. at 583.



602 INDIANA LAW REVIEW [Vol. 29:593

Trained faculty members provided counseling to students who requested it, and
informational pamphlets were available in the nurse's office.^^

The plaintiffs alleged that the condom availability program infringed on family
privacy and free exercise rights in violation of the First and Fourteenth

Amendments of the United States Constitution.^^ More specifically, they argued
that by providing students with sex-related information and access to condoms, the

program violated their constitutional right to freely exercise their religion by
interfering with their efforts to instill in their children moral beliefs that sex

outside of marriage is sinful.
^^

The defendants in Curtis moved for summary judgment claiming that the
plaintiffs had not shown a reasonable likelihood of proving that the condom
availability program violated any of their constitutional or statutory rights.^^ The
trial court found that because the condom availability program neither burdened
nor coercively interfered with the plaintiffs' privacy rights or with the right to free

exercise of religion, the program did not violate the plaintiffs' federal

constitutional rights. ^^ The lower court thus granted the defendants' motion for
summary judgment, and the plaintiffs appealed.^^ The plaintiffs asserted in their
appeal that the lower court had erred in its finding that the condom availability
program, which lacked an "opt out" provision, did not violate their right to familial

privacy and to the free exercise of their religion pursuant to constitutional

guarantees.''^ The court began its analysis of the plaintiffs' claims by
acknowledging parents' rights to be free from unnecessary governmental intrusion

in rearing their children.^^ It noted that inculcation of moral standards, religious

beliefs, and elements of good citizenship are aspects of child rearing protected by

the Constitution from unnecessary intrusion.^^ It also highlighted the Supreme

Court's appreciation and zealous protection of parents' fundamental liberty

65. Id.

66. Id. at 582. The plaintiffs also asserted claims under Mass. Gen. L. ch. 274, § 3 (1994)

(prohibiting the counseling of a felony), MASS. GEN. L. ch. 119, § 51 A (requiring school
administrators to report incidents of sexual abuse to the Department of Social Services), and MASS.

Gen. L. ch. 71, § 30 (requiring public school teachers to impress chastity on the minds of children).

The plaintiffs further asserted that all of the above-stated violations resulted in a deprivation of their

civil rights under 42 U.S.C. § 1983 (1994) and MASS. Gen. L. ch. 12, § 1 1 1. All of plaintiffs

claims were denied. Curtis, 652 N.E.2d at 582 & n.3.
67. CMrr/5, 652 N.E.2d at 588.

68. Id at 582.

69. Id

70. The plaintiffs filed, and the court granted, an application for direct appellate review by

the Supreme Judicial Court of Massachusetts. Id.

71. On appeal, the plaintiffs did not argue the claims based on alleged violations of

Massachusetts statutory and constitutional law. Id.

72. Id at 585.

73. Id. (citing Wisconsin v. Yoder, 406 U.S. 205, 232-33 (1972); Prince v. Massachusetts,

321 U.S. 158, 166-67 (1944); Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925); Meyer v.

Nebraska, 262 U.S. 390, 401 (1923)).



1996] CONDOMS DISTRIBUTION 603

interest in raising their children:

The history and culture of Western civilization reflect a strong tradition
of parental concern for the nurture and the upbringing of their children.

This primary role of the parents in the upbringing of their children is now
established beyond debate as an enduring American tradition.^"*

The plaintiffs first argued that the condom program violated their substantive
due process rights under the Fourteenth Amendment to direct and control the
education of their children within the zone of familial privacy.^"^ This claim rested

on the assertion that the program placed their children within the compulsory

setting of public schools, which provided their children unrestricted access to

condoms without parental input.^^
The Curtis court set forth the threshold inquiry in the familial privacy claim:

whether parents were burdened by the state in their right to educate their

children^^ In this inquiry, the court acknowledged that the burden required for

such an unconstitutional interference must constitute coercion or "compulsion" by

the state7^ In its analysis, the court considered the facts surrounding the

availability of condoms in the Falmouth schools. The program required no
classroom participation of students^^ Instead, condoms were made available in
the nurse's office to junior high school students who requested them, and were
also made available to high school students in vending machines in the boys' and

girls' bathrooms.^" The students were not required to obtain the condoms, to read

the instructional literature, or to participate in counseling regarding their use.^'

They were free to decline to participate in the program, and no penalty would

ensue because of failure to obtain condoms from the school.^^ Further, the parents

were free to impart moral and religious teachings to their children and were

equally unencumbered in instructing their children not to participate in the

condom program.^^

Unlike the Alfonso court, the court in Curtis looked to legal precedent in

74. Id. at 585 (quoting Yoder, 406 U.S. at 232); see also Ginsberg v. New York, 390 U.S.

629,639(1968).

75. Curtis, 652 N.E.2d at 584.

76. Id

77. Id at 585.

78. Id (citing Doe v. Irwin, 615 F.2d 1 162, 1 168 (6th Cir. 1980), cert, denied, 449 U.S. 829

(1980)). See also Yoder, 406 U.S. at 205 (compulsory school attendance law violated Amish

parents' right to direct religious upbringing of children); Pierce v. Society of Sisters, 268 U.S. 510

(1925) (law requiring public school attendance and prohibiting attendance at private parochial

schools violated parental liberties); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (law prohibiting

teaching of foreign languages to school children violated parental liberties).

79. Curtis, 652 N.E.2d at 586.

80. Id.

81. Id.

82. Id

83. Id.



604 INDIANA LAW REVffiW . [Vol. 29:593 ;

determining the type of factual scenario necessary to establish the requisite

coercive state action. It found that coercion exists where the governmental act in
question is mandatory, and provides no alternative option for the party being
burdened by the state requirement.^"^ Considering past judicial findings of coercive

government acts, the court noted that the United States Supreme Court had found
that laws proscribing the education of children other than at public school^^ and

laws prohibiting the teaching of foreign languages to school children^^ were

coercive. The court in Curtis found, by reference to precedent, that the plaintiffs
had not met a threshold requirement of establishing state coercion interfering with

their personal liberty and familial privacy interests.^^ As a result, the court did not
inquire into the compelling nature of the state's interests in implementing the

condom program. ^^

In order to prevail on their free exercise claim, the parents had to show that the
condom program imposed a substantial burden on the exercise of their religion.^^
To establish the necessary burden, the parents were required to demonstrate, as in
the privacy claim, that the burden was coercive or compulsory in nature.^

The court displayed a sensitivity to the plaintiffs' claims by noting that the
voluntary condom distribution program might offend the religious sensibilities of
the plaintiffs. However, it also recognized that parents have no right to tailor

public school programs to meet their individual preferences.^' Like the Alfonso

court, the Massachusetts Supreme Judicial Court pointed to the voluntary nature
of the condom program in that there was no requirement that any student
participate in the program.^^ As a result, it held that mere exposure of adolescents
at public schools to "offensive" programs, without more, did not violate the Free

Exercise Clause.^"* Treating the issue fairly summarily, the court denied the free

exercise claim and upheld the condom availabihty program.^"*
The outcomes of the New York and Massachusetts condom cases illustrate the

discordance existing in the present American and global climates that is fueled by

conflicting economic interests, faith-based "truths," life-threatening sexually-

transmitted diseases, and judicial attempts to maintain order and to foster the

spiritual and physical vitality of children in need of protection. The federal
constitutional claims raised in both the New York and Massachusetts cases arise
in that complex cUmate. Because this climate and culture are in many ways

84. Id. at 585-87.

85. Id. at 585 (citing Wisconsin v. Yoder, 406 U.S. 205 (1972); Pierce v. Society of Sisters,

268 U.S. 510(1925)).

86. Id. at 585-86 (citing Meyer v. Nebraska, 262 U.S. 390, 399-401 (1923)).

87. Id. at 586-87.

88. /^. at 583.

89. Id. at 587.

90. Id.

91

.

Id. at 589 (citing Epperson v. Arkansas, 393 U.S. 97, 106 (1968)).

92. Id.

93. Id.

94. Id.



1996] CONDOMS DISTRIBUTION 605

different from that which existed a generation ago,^** constitutional issues must be

decided with an eye to both present context and history.

The opinions of both the New York and Massachusetts courts are
disappointing in their myopic treatments of the constitutional issues before them.

The Alfonso court could certainly have been respectful of precedent while
upholding a voluntary and non-coercive governmental program with the potential

for safeguarding the lives of adolescents; but it did not produce such a decision.

The language of the Alfonso court suggests that in addition to the stated bases for

its rationale, perhaps the court, like many parents, could not bring itself to peel
back tlie layers of shame and guilt^^ inherent in sexual taboos surrounding AIDS
in order to face the threat of that disease and act in a responsible manner. The
court's allocation of the issue to the "private" realm of the family, its refusal to

confront the compelling nature of the AIDS epidemic, and the need for a strong
public response by state government, all support parental reproduction of shame

and guilt.

Although the Curtis court upheld the condom availability program, it
resembled i\\& Alfonso court in its limited examination of the notion of coercion.

Both courts employed analyses relying on conventional application of legal

doctrine and ignored important cultural pressures contributing to the coercion of

adolescents. Perhaps this is because utilization of the latter method of analysis

would have forced the courts to put aside their squeamishness regarding the

"particularly sensitive area"^^ of sex and adolescents. This they could not, or

would not, do. As a result, their opinions do not provide much needed guidance
for resolving future conflicts over when, and how, the state may interfere with
parental rights in order to foster the well-being of children. An examination of the
realities of present-day coercion might have led the state courts toward more

promising analyses.

n. Sectarianism, Secularism and Sex Education

Commentators on Free Exercise and Establishment Clause doctrine sometimes

characterize Church and State issues as arising from conflicts of "secularists"^^ and

95. See the cartoon Szep's View, depicting the framers of the Constitution considering

whether to include the right to condoms in high schools. Paul Szep, Szep 's View, BOSTON Globe,

July 21, 1995, at 16. For an insightful discussion on postmodernist culture, see Marie Ashe, "Bad

Mothers, " "Good Lawyers, " and "Legal Ethics, " 81 Geo. L.J. 2533 (1993).

96. See Kate N. Day, The Moral Confusion ofAffirmative Action Jurisprudence or When

Will We Learn to Bear the Shame of Guilt?, 16 Vt. L. Rev. 777 (1992).
97. Alfonso v. Fernandez, 606 N.Y.S.2d 259, 266 (N.Y. App. Div. 1993).

98. The terms "secularism," "humanism," and "secular humanism" are often used

interchangeably in the discursive realm. For an insightful discussion on the meanings of each of

these terms, see Mary Harter Mitchell, Secularism in Public Education: The Constitutional Issues,

67 B.U. L. Rev. 603, 616-27. See also John W. Whitehead, The Separate Illusion: A Lawyer
Examines the First Amendment (1977); John W. Whitehead, The Second American
Revolution 53- 1 23 ( 1 982).



606 INDIANA LAW REVIEW [Vol. 29:593

"sectarians. "^^ These conflicts have become increasingly visible in recent years.'^^
The parents' claims in the condom struggle present a window through which to
view the larger, more vociferous battle underway and gaining intensity in the
country, involving multiple conflicts among secularists and sectarians about the
control of children's minds and bodies.

During the 1980s, some Christian groups advanced claims that public schools
are promoting the ideology of humanism, which violates the separation of Church
and State protected by the Establishment Clause of the First Amendment of the
Constitution.'^' Essentially, these claims argued that "secular humanism"
involves a level of religion and that public schools' endorsements of secular

humanism amounted to a favoring of one religion over another. '^^ "Humanism"
has been defined by its advocates as "[a]n ethical process through which we can
all move, above and beyond the divisive particulars, heroic personalities, dogmatic

creeds, and ritual customs of past religions or their mere negation."'"^ It has also
been defined as "a philosophical, scientific, and ethical viewpoint that involves a

commitment to free inquiry, to the use of science to explain nature, and to the use

of reason and critical intelligence to solve human problems."'^
One Christian leader has recently issued an all-encompassing denunciation

asserting that "[m]ost of the evils in the world today can be traced to

humanism."'^^ Others have specifically enumerated premarital sex, drugs, rock

music, declining S.A.T. scores, easy divorce, and materialism as harms caused by

this ideology. '°^ Humanists have additionally been accused of attempting to

control the public schools, of instituting a curriculum that is anti-God, anti-moral,

anti-family, anti-free enterprise, and anti-American.'^^ Conversely, humanists,

secularists or other "non-fundamentalists" have charged religion with engaging in

99. See Sanford Levinson, Some Reflections on Multiculturalism, "Equal Concern and

Respect, " and the Establishment Clause ofthe First Amendment, 27 U. RICH. L. REV. 989 (1993).

100. Id.

101. The First Amendment provides, in pertinent part: "Congress shall make no law

respecting an establishment of religion, or prohibiting the free exercise thereof . . . ." U.S. Const.

amend. I. See also HOMER DUNCAN, SECULAR HUMANISM: THE MOST DANGEROUS RELIGION IN

America 52-63, 77-95 (1979) (with introduction by Senator Jesse Helms); Tim LaHaye, The

Battle FOR THE Family 87-103 (1982); Tim LaHaye, The Battle for the Mind 141-79 (1980);

Tim LaHaye, The Battle for the Public Schools (1983).

102. See infra note 107 and accompanying text.

103. Humanist Manifesto II, THE HUMANIST, Sept.-Oct. 1973, at 4, 5.

104. P. Kurtz, Who are the Secular Humanists?, 2 FREE INQUIRY 1 (1981).

105. LaHaye, The Battle for the Mind, supra note 101, at 9.

1 06. See JOHN W. WHITEHEAD, THE SECOND AMERICAN REVOLUTION ( 1 982).

1 07. See LaHaye, THE BATTLE FOR THE MiND, supra note 101 , at 57-83. Also consider the

comments of Jennie Wilson, a Christian supporter of the parents who sued the Hawkins County

School Board over the alleged "anti-Christian" content of textbooks in Mozert v. Hawkins County

Board of Education, 827 F.2d 1058 (6th Cir. 1987), found in Stephen Bates, Battleground:

One Mother's Crusade, the Religious Right, and the Struggle for Control of Our

Classrooms 22-23 (1993).



1996] CONDOMS DISTRIBUTION 607

dogmatism, intolerance, repression and anti-intellectualism.'"^

The differences between sectarians and humanists evidenced in the condom
cases are very deep. Even if sectarian parents and the school boards they perceive

as "secular-humanist" were to agree on how best to keep teenagers safe from
AIDS, the presentation of the information necessary to achieve the desired result

remains a source of heated controversy. Many parents assert that Biblical
teachings, and thus "morality," are absolute; therefore, any discussion of condoms

which might cause adolescents to engage in critical assessment of alternative

behavioral choices would constitute an affront to and would be irreconcilable with

the religious truths handed down to their children.
These parental perspectives were evident in both Alfonso^^^^ and Curtis. In

Curtis, one plaintiff/mother enunciated the harm that the availability of condoms
and the related information provided by the public school caused to her family as

follows:

Due to the instruction my son and niece have received at school
concerning condoms and sexual activity, they now perceive our views on
religion and sex as old-fashioned and openly question our religious

beliefs. ... I am concerned that they may not take the Bible, its
commandments and the Word of God as seriously as we have taught them
to, and [will] doubt or question the validity of our beliefs.

''^^

Fifteen-year-old Daniel, also a plaintiff in the Curtis lawsuit, echoed his mother's

concerns: "This new policy has . . . caused problems in my relationship with my
parents. They think I may be starting to be more sexually active and do not trust
me now as much as they did before the condoms were available."'^' These
sentiments make clear that the potential for inquisitive or critical thinking
challenges the "absolute truths" of religious dogma, and is therefore objectionable

to the plaintiffs in the condom cases.
Another indication of the plaintiffs' embrace of "absoluteness" is evident in

their search for guidelines guaranteeing desired results. Thus, the plaintiffs in

Curtis asserted that condoms are unreliable, that condoms are an ineffective means

of protection against HIV and potentially fatal sexually transmitted diseases, and
that for those reasons they should not be made available to adolescents.'^^ In
support of this argument, the plaintiffs referred to a medical report released in

1993, containing information that the Food and Drug Administration tested and
found fifty broken condoms per one thousand condoms, a rate exceeding the

1 08. See CORLISS Lamont, The Philosophy of Humanism (6th ed. 1 982).

109. See Alfonso v. Fernandez, 606 N.Y.S.2d 259, 267 (N.Y. App. Div. 1993) (parents'

claims of coercion).

1 10. Affidavit of Nancy MacLone, Brief of Appellants, vol. 1 , joint app. at 72-73, Curtis v.

School Comm., 652 N.E.2d 580 (Mass. 1995).

111. Affidavit of Daniel MacLone, Brief of Appellants, vol. 1, joint app. at 69, Curtis v.

School Comm., 652 N.E.2d 580 (Mass. 1995).

1 1 2. Brief of Appellants at 8, Curtis v. School Comm., 652 N.E.2d 580 (Mass. 1 995).



608 INDIANA LAW REVIEW [Vol. 29:593

FDA's minimum safety standard of four breaks per one thousand condoms."^
It is obviously not desirable for condoms, in any percentage, to exhibit defects.

However, assuming arguendo the plaintiffs' assertions regarding the defective

nature of the number of condoms tested, it remains the case that in Alfonso the
Surgeon General of the United States was cited for the statement that condoms are
the best protection, other than abstinence, against the sexual transmission of

j^jY 114 jYiQ plaintiffs in the condom cases, however, demand "absolutisms;" they
require bright-line distinctions between good and bad, right and wrong, effective
and ineffective. Advocating and tolerating only abstinence as the best protection,

they cannot tolerate and in fact do condemn condoms, the "second best" form of
protection, refusing to see it as better than some other alternatives, such as
unprotected sex.

The intensity of the division between secularists and sectarians in the condom
cases is not surprising. More striking, however, is the discord existing among
individual religious sects over the public school condom programs. This
disagreement was clearly evidenced in the Curtis litigation. Briefs filed in that

case expose the lack of ideological harmony among religious groups. The
plaintiffs in Curtis were represented in part by legal counsel for The American
Center for Law and Justice, a group founded by the Christian evangelist Pat
Robertson,' ^^ and the Rutherford Institute, a "religious freedom advocacy"

group. ''^ The American Jewish Congress and the Unitarian UniversaHst
Association, however, filed amicus briefs in support of the Falmouth School

Board. ''^ In opposition to the parents' claims, those rehgious organizations

vehemently objected to the claims that the condom programs burdened religious
freedom, set forth legal arguments promoting the constitutional protection of

religious freedom through acceptance of the public school condom program, and
urged the court to adopt their vision of the proper means for fostering "a thriving

of religious minorities in a plurahstic environment."''^

The divisions apparent in Curtis reflect a contemporary American society
within which numerous groups espouse different and seemingly irreconcilable

ideologies affected by religion, politics, and economics, regarding the collective

concern of children being "at risk" and the need to protect them. These divisions

have been met by mechanical application of traditional Free Exercise Clause

doctrine such as has been perfonned by the Alfonso and Curtis courts. The limits
and failures of the courts' approaches can be illustrated by examining their

treatment of the notion of coercion. Their approach to the coercion inquiry is

.simplistic, nostalgic, and unhelpful because of its unwillingness to recognize the

113. Id. Sii9n.l3.

1 14. Alfonso V. Fernandez, 606 N.Y.S.2d 259, 263 (N.Y. App. Div. 1993).

115. Cathy L. Grossman, Airline's Stance on Religious Expression Causes Lots of

Turbulence, Det. News, Apr. 6, 1995, at D6.

1 1 6. Debra J. Saunders, Who Can Decide, Who Can 't, S.F. Chron., July 31, 1995, at A 19.
117. Brief of Amici Curiae, American Jewish Congress and Unitarian UniversaHst

Association, Curtis v. School Comm., 652 N.E.2d 580 (Mass. 1995).

118. Id.



1996] CONDOMS DISTRIBUTION 609

changing realities of contemporary culture.

Both advocates and opponents of various forms of sex education in the pubHc

schools are concerned with an array of harms that threaten the well-being of

adolescents. However, they are in disagreement about how to prevent these harms.
One opponent of sex education has argued: "The sex educators have either a
mental block ... or, for some reason, cannot see that their sex programs are largely

responsible for the (1) pregnancies, (2) abortions, (3) prostitution, (4) perversion,

(5) suicides and (6) psychological as well as physical venereal diseases that are

epidemic in today's youths."^ '^ The "sex educators," including advocates of

condom availability programs who perceive a state interest in preventing such
harms, argue that the lack of such programs are contributing to the feared harms.

The plaintiffs in the condom litigation have argued that the state, through
condom availability programs, coerce their children by "bombarding" them with
objectionable messages condoning sexual activity. The Alfonso plaintiffs alleged

that their children were "bombarded" with information regarding the condom
program, which could cause them to succumb to peer pressure to engage in sex.'^^

The "bombardment" was asserted to arise when the schools established health
resource rooms where trained professionals dispensed condoms to students who
requested them, and when, upon receiving a condom, students were given personal

health guidance counseling involving their proper use and the consequences of

their misuse.'^' In this process of providing condoms, a student's voluntary

activity and initiative are essential To obtain a condom, a student must, on his or
her own volition, travel into an area of a school building set aside specifically for
the distribution of condoms, voluntarily request a condom, and only then receive

counseling on its proper use.'^^ It is thus very difficult to understand how this
seemingly autonomously-acting student can be deemed to have been "bombarded"

by any aspect of the condom program.
A much clearer instance of children's exposure to bombardment by sexual

images and information may be found in young people's ordinary daily activities:
watching television and movies, listening to ubiquitous rap and rock music lyrics,

and utilizing the Internet. '^^ A child needs only to inadvertently access one of

,119. Debra W. Haffner, M.P.H. & Diane de Mauro, Ph.D., Winmng the Battle:
Developing Support for Sexuality and HIV/AIDS Education (Sex Information and Education

Council of the U.S. ed. 1990) (quoting Melvin Anchell, Killers of Children (1988)).

120. Alfonso V. Fernandez, 606 N.Y.S.ld 259, 267 (N.Y. App. Div. 1993).

121. /^. at 261.

122. Id.

123. Despite the political rhetoric, it is unlikely that adolescents' exposure to popular culture

will be restricted by government or the private sector. America's reluctance to censor expression,

or to miss out on a marketing advantage, sustains the ever-broadening "marketplace" for teenagers.

Richard Lacyo, Violent Reaction, TIME, June 12, 1995, at 25-30. Further, the images and

experiences available to teenagers are becoming more realistic. Soon teenagers with access to the

Internet may have 3-D experiences using Virtual Reality Modeling Language, a new technology

enabling them to "virtually" go to the mall and to download rock videos. Michael Meyer, Surfing

the Internet in 3-D, NEWSWEEK, May 15, 1995, at 68.



610 INDIANA LAW REVIEW [Vol. 29:593

various on-line services through the Internet on his or her home computer to find
sadomasochism, bestiality, and pornography, which are regarded as immoral and
highly objectionable to most parents. '^"^ Movies and television also provide a
deluge of material providing children with numerous examples of sexual relations

conducted outside of the mainstream heterosexual marital forum. Today's typical

viewer sees about ten thousand scenes of suggested sexual intercourse, sexual

comment, or innuendo during one year of average viewing, and seven out of eight

acts of intercourse on prime time are extramarital.*^^ Similarly, the American

movie industry is consistently and legitimately accused of peddling glamorized
images of "irresponsible sex" to children and adolescents.*^^

In addition to the proliferation of media messages concerning sexual activity,

drastic changes in the structure of the family that also expose children to non-

traditional sexual relationships have taken place during the past twenty years. The
percentage of children living in single-parent households doubled from 1970 to

1989, at which time sixteen million children lived in single-parent households, and

only one-quarter to one-half of all children bom today will live with both of their
parents throughout their childhood. *^^ As a result, many children do not
experience the benefit of parental supervision during much of the time when they
are not in school. As Justice Eiber noted while dissenting from the three-to-two
majority opinion in Alfonso, many children lack interested parents or have no
parents available to provide guidance and discipline and to urge their adolescent

children to abstain from sex until marriage.
'^^

Notwithstanding parents' claims of coercion by the state, the reality is that

modem technological and social constmcts provide ready access to sex-themed
messages of infinite variety, and those forces will not "leave alone" young people,

many of whom have no consistent parental influence to guide them in making
important personal decisions. These forces are in fact coercive of children in the

most meaningful sense—they are informative, instractive, persuasive and

124. Marty Rimm, Marketing Pornography on the Information Superhighway, 83 GEO. L.J.

1849 n.5 (1995). For a general discussion of the availability of highly graphic sexual materials

available to children on computers, see Stephen Levy, No Place For Kids?, Newsweek, July 3,

1995, at 47.

1 25. Jim Impoco & Monika Guttman, Hollywood: Right Face Under Seige, Filmmakers and
T. V. Bosses Become More Family Friendly, U.S. NEWS & WORLD REPORT, May 15, 1995, at 66
(citing studies by Robert Lichter, co-director of the Center for Media and Public Affairs).

126. For a recent example of the perceived power of movies to influence the minds of

children, see Senate Majority Leader Bob Dole's angry comments regarding Hollywood's poisoning

of the "minds of our young people . . . with destructive messages of casual violence and even more

casual sex." Id. In his State of the Union address. President Clinton condemned the entertainment

industry for "incessant, repetitive, mindless violence and irresponsible conduct." Id.

127. See NATIONAL COMMISSION ON CHILDREN, BEYOND RHETORIC: A NEW AMERICAN
Agenda for Children and Families 17-23 (1991); Jerry Adler et al.. Kids Growing Up Scared,

Newsweek, Jan. 10, 1994, at 43.

128. Alfonso v. Fernandez, 606 N.Y.S.2d 259, 275 (N.Y. App. Div. 1993).



1 996] CONDOMS DISTRIBUTION 61

1

seductive. They bombard with much greater power and effectiveness'^^ than can
the simple presentation of sex education materials by a nurse in an office of the

pubHc high school. It is therefore only by utterly ignoring the reality of cultural

coercion and bombardment that one could view public school condom programs
as bombarding and coercive. In fact, the schools, through the condom programs,
offer resistance to the powerful coercions exercised by large social forces.

In examining the claims relating to state coercion, the courts in New York and
Massachusetts have failed to account for the cultural context in which those cases

arose. Instead, they have limited themselves to reiterating legal doctrine that

developed in very different contexts. Wisconsin v. Yoder^^'^ is one of the leading

Free Exercise Clause cases considered by the New York'^' and Massachusetts
courts'"^^ in their review of their respective states' condom programs. Like the
Amish parents in Yoder, the plaintiffs in the condom cases argued that they should
not be subject to state requirements which compel or coerce the exposure of their

children to anti-religious messages and activities. '^'' In Yoder, parents and their

children who were members of the Old Order Amish and the Conservative Amish
Mennonite Church objected to their children being required to attend school

beyond the eighth grade and asserted violations by the state over their "free

exercise of religion" rights.'^"* Life in a separated agrarian community was the

keystone of the Amish faith and the Amish argued that attendance at a public
school would expose their children, during the critical adolescent years, to higher

education that might instill into adolescents values which the Amish rejected as
alienating man from God.'^^ Testimony established that Amish groups separated
themselves from the world, and attempted to shield their children from all worldly

influences. If forced to attend public or private school, the children would have

had either to abandon their religious beliefs and be assimilated into society at

large, or to migrate to a more religiously-tolerant region.
'^^

Pursuant to its free exercise inquiry, the Court found that the state requirement

of compulsory school attendance to age sixteen for the Amish children posed a
threat of undermining the Amish community and religious practice, and that the
parental decisions to remove their children from the public school system after

completion of the eighth grade were not likely to jeopardize the health or safety

of the Amish children. '^^ Further, the state did not prove its own interest of the
"highest order" in compelling the Amish children to attend public high school,

1 29. See supra notes 1 23-27.

130. 406 U.S. 205(1972).

131. Alfonso V. Fernandez, 584 N.Y.S.2d 406, 409 (N.Y. Sup. Ct. 1992), rev'd, 606

N.Y.S.2d 259, (N.Y. App. Div. 1993).

132. Curtis v. School Comm., 652 N.E.2d 580, 584 (Mass. 1995).

133. Id. at 587; Alfonso, 606 N.Y.S.2d at 267.

134. Yoder, 406 U.S. at 209. Under Wisconsin law, the children were required to attend

school until they reached the age of sixteen. Id. at 207.

135. /J. at 21 1-12.

136. /^. at 218.

137. /J. at 232-35.



612 INDIANA LAW REVIEW [Vol. 29:593

given that the alternative education provided within the Amish community
appeared to be as good as, or better than, public education.*-'^

In Yoder, the Court, in its evaluation of constitutional issues, considered the

public poHcy concerns of allowing the Amish children to forego public high
school education. The Amish had excellent records as law-abiding and generally
self-sufficient members of society. '^^ The Amish community was found to be a
highly successful social unit within society, its members productive persons who
rejected public welfare benefits. "^^ The Court pointed out, favorably, that the
Amish group in question had never been known to commit crimes, and that none
were unemployed.''*'

The findings made by the Court concerning the Amish established a
compelling argument that their religious community could survive only if it was
allowed to educate its children free of governmental interference. Not only would
the state action cause an infringement of the parents' constitutional rights, it would

also precipitate the extinction of a religious community. This consideration clearly

influenced the Court in its decision to foster religious pluralism by favoring the

claims of the Amish. Further, although some of the rehgious practices of the
Amish may have seemed different and "other" to a majority, the consequences of
those practices were found to be appealing and desirable. The Amish were
perceived to have attained goals and exempHfied virtues that most Americans

respect. It was in that cultural context that the Supreme Court found coercive state

action in Wisconsin's requirement of high school education for Amish children.''*'^
The applicability of Yoder to the condom cases, however, is highly

questionable. The world has changed greatly since Yoder was decided in 1972.
Separation from bombardments by the larger culture is even less likely than it was

twenty years ago, and the risks to children differ from those that existed twenty

years ago. The Amish families in Yoder maintained a "separatist" lifestyle that
was unique even in 1972 in its successful avoidance of outside worldly influences.

Conversely, the Curtis and Alfonso parents and children have never asserted that

they maintain lives highly isolated from contemporary American society. They do

not argue that except for the pubhc school experiences, their children are immune
to the cultural bombardment—and indeed coercion—accomplished through media
messages.

Religious pluralism could be encouraged in Yoder because the court found

that, on balance, protection of the parents' constitutional rights presented no

significant threat to the children or to society. The same determination, however.

138. Id. at 235-36. In considering what effect an exemption from the public school education

requirement would have on the Amish children's educational future, one expert witness on

education testified that the Amish system of learning through practicing skills directly relevant to

their adult role in the Amish community was "ideal," and "perhaps superior to ordinary high school

education." Id. at 212.

139. Mat 212-13.
140. Id. ^i 222.

141. /J. at223n.ll.

142. Mat 228-29.



1996] CONDOMS DISTRIBUTION 613

cannot be made regarding the factual scenarios presented in the Alfonso and Curtis
cases. Because of the AIDS epidemic, the significant threats to children require
a broad array of state actions—including condom programs—to protect against
cultural bombardment advocating risk and irresponsibility.

ni. Adolescents, Sex and AIDS

"My theory ... is don't do it before you're twenty one, and then don't
tell me about it."''*^

Prior to the first AIDS diagnosis in 1982,''*'* parental reluctance to
acknowledge sex as a potential force in children's lives did not carry the grave

consequences that it now bears. Before AIDS, the problems associated with
adolescent sexual activity were not generally life-threatening. Parents could

emotionally armor themselves against troubling statistics regarding the high

incidence of teenage sexual behavior by adopting the belief that it was not their

children, but "other people's children" who were having sex. Although some
parents were correct in their assessment of their children's lack of sexual activity,

and others were not, neither the mistaken parents nor their children typically faced

a real risk of death as a consequence of sexual activity.

Adolescents now are engaging in sexual intercourse and aie beginning to
become infected with sexually transmitted diseases, including HIV, in very
significant numbers.'"*^ More than eighty percent of Americans have had sexual
intercourse by the time they reach the twelfth grade. '''^ As a result, two and one-
half million adolescents annually contract a sexually transmitted disease.*"*^

In 1989, AIDS became the sixth leading cause of death for persons aged

143. Ellen Goodman, When We Talk About Sex and Teens, Can't We Use Words Besides

'No'?, Boston Globe, June 22, 1995, at 1 1 (quoting Hilary Rodham Clinton's reaction to the topic

of her daughter Chelsea and sex).

144. As early as 1979, physicians in New York, San Francisco and Los Angeles began seeing

gay men with unusually violent forms of Pneumocystis carinii pneumonia (PCP) and Kaposi's

sarcoma (KS). These diseases generally do not affect adults with intact immune systems. Initially

AIDS was termed GRID, gay-related immunodeficiency, or AID, acquired immune deficiency. The

term AIDS, for acquired immune deficiency syndrome, was officially adopted by the Centers for

Disease Control in 1982 as the associated diseases were identified. Jan Zita Grover, AIDS:

Keywords, in AIDS: CULITJRAL ANALYSIS, CULTURAL ACTIVISM 17, 18-19 (Douglas Crimp ed.

1988).

145. Alfonso v. Fernandez, 606 N.Y.S.2d 259, 268 (N.Y. App. Div. 1993) (quoting Dr.

Margaret Hamburg, Acting Commissioner of the New York City Department of Health).
146. Facing Facts: Sexual Healthfor America 's Adolescents: The Report of the National

Comm'n on Adolescent Sexual Health, SEICUS REPORT (Sex Information and Education Council

of the U.S.), Aug.-Sept. 1995, at 4.

147. Benjamin R. Barber, America Skips School: Why We Talk So Much About Education
And Do So Little, Harper's Mag., Nov. 1993, at 39.



614 INDIANA LAW REVIEW [Vol. 29:593

fifteen to twenty-four.*"*^ Because this disease has an eight to ten-year latency

period, the statistics suggest that the majority of those persons were infected as

adolescents.'"*^

American law has had a long history of commitment to protecting the "best
interests" of children. In light of this history, it is very puzzhng that judges refuse

to endorse governmental efforts to protect minors,*^^ in spite of the statistics

portraying a sexually active and highly vulnerable adolescent population. This

judicial refusal can perhaps be understood as arising out of a denial of the meaning

of the AIDS threat to adolescents, an illusion which may mirror a popular
misunderstanding that only "other" people get AIDS.'^' Commentators have

documented the cultural impulse toward segregation of potential AIDS victims as
deUnquent "others."'^^

In Western culture, there have been strong themes expressed in established

religious dogma portraying disease as a force affecting those who have disobeyed
generally accepted rules of conduct. Consider, for example, the Biblical reference

to the plague of "boils"*^^ that God sent to the people of Egypt as punishment for
the Pharaoh's refusal to obey His Word:

Then the Lord said to Moses and Aaron, "Take handfuls of soot from a
furnace and have Moses toss it into the air in the presence of Pharaoh. It
will become fine dust over the whole land of Egypt, and festering boils

148. Center for Disease Control and Prevention, Selected Behaviors That Increase Riskfor

HIV Infection Among High School Students—United States, 1990, 41 MORBIDITY AND MORTALITY

Weekly Report 23 1 ( 1 992).

149. Id.

150. Courts, however, will often reject parties' religious objections to medical procedures,

where failure to obtain the medical service would place the person's life in jeopardy. See Crouse-

Irving Memorial Hosp., Inc. v. Paddock, 127 Misc.2d 101 (N.Y. Sup. Ct. 1985) (court ordered

blood transfusion for pregnant woman during delivery of child despite religious objections); In re

McCauley, 565 N.E.2d 411 (Mass. 1991) (court ordered blood transfusion to eight-year-old

leukemia patient despite Jehovah's Witness parents' refusal to consent to procedure); In re Cabrera,

552 A.2d 1 114 (Pa. Super. Ct. 1989) (parents' religious objections were outweighed by State's

interest in health of six-year-old child with sickle cell anemia needing blood transfusion).

151. The overwhelming majority of those within the "other" classification have been gay

men. Male-to-Male sexual contact is the most frequently reported type of transmission of HIV in

persons with AIDS. Update on AIDS in Men Who Have Sex with Men, 52 AMERICAN FAMILY

Physician 667 (1995).

152. Senator Jesse Helms demands "common sense about a disease transmitted by people

deliberately engaging in unnatural acts." Jesse Helms' Venom, BOSTON GLOBE, July 7, 1995, at 14.

Helms was arguing for reducing federal AIDS funding upon assertions that more people die from

diseases that receive less federal financing than AIDS. Public Health Service figures refute Senator

Helms' claims. Id.

153. It has been suggested that "boils" were probably skin anthrax, a black, burning abscess

that developed into a pustule, and which seriously affected the knees and legs . Exodus 9:8, n.9:9

(NIV Study Bible 1985).



1 996] CONDOMS DISTRIBUTION 6 1

5

will break out on men . . . throughout the land »5l54

As a result of an established religious connection between disease and
wrongdoing, plagues and epidemics were sometimes "moralized" as punishments

imposed on those who had committed evil acts. The establishment of a causal
connection between "good" and "bad" human behavior, and health and disease in
the human body, reinforced the importance of adherence to religious teachings.
This connection drew clear distinctions between those who lived "right" lives, and
the "others" who did not.

A stark instance of modern perpetuation of the belief system connecting
disease with immorality arose in 1979-1981, when gay men were dying from
illnesses unusual in young people, but which had not yet been diagnosed as

AIDS.''''^ As the numbers of deaths mounted, medical staffs of New York
hospitals informally dubbed what would later become known as AIDS, as WOGS:
the Wrath of God Syndrome. '^^ The "moral" panic and confusion created by
AIDS continues to obstruct concrete efforts to stem the spread of this disease
among adolescents. As a disease primarily transmitted through sexual contact,'"
AIDS invites the perception that it is willfully contracted through "evil" acts
violative of social mores and religious teachings.'''^ The cultural construction of

AIDS, then, atavistically repeats deeply-rooted Western connections between
disease and moral and spiritual disorder.

It is likely that some courts will consider the public health emergency

presented by AIDS in the same way American society views AIDS—as an
unprecedented "sexual" disease carrying "moral" implications.'^^ The existence

of such an underlying mindset may be the best explanation of otherwise
incomprehensible judicial balancing in favor of privacy interests and against state

efforts making condoms available to sexually active adolescents. In fact, AIDS
presents not only a catastrophic medical crisis, but also an intellectual, emotional

and spiritual conflict over the human body and its capacities for sexual pleasure.'^"
Judicial ambivalence or squeamishness about endorsing the aggressive

combating of AIDS should not be surprising, given the popular responses to the
epidemic. As a barometer of public attitudes, consider the following warning, sent
by the International Banana Association to the Public Broadcasting Service

154. Exodus 9:8 (NIV Study Bible 1985).

155. See Paula A. Treichler, Aids, Homophobia, and Biomedical Discourse: An Epidemic

of Signification, in AIDS: CULTURAL ANALYSIS, CULTURAL ACTIVISM 31 (Douglas Crimp ed.

1988).

156. Id. at 52.

1 57. See supra note 151.

1 58. See supra note 153 and accompanying text.

1 59. See Simon Watney, The Spectacle ofAIDS, in AIDS: CULTURAL ANALYSIS, CULTURAL

Activism 71 (Douglas Crimp ed. 1988).

160. For an instructive discussion on Americans' reticence to engage in "sexual" discourse,

see Leo Bersani, Is the Rectum a Grave? in AlDS: CULTURAL ANALYSIS, CULTURAL ACTIVISM 197

(Douglas Crimp ed. 1988).



616 INDIANA LAW REVIEW [Vol. 29:593

following the airing of an educational video promoting "safer sex," wherein the

narrator utilized a banana for a demonstration on proper condom use:

I must tell you, Mr. Christiansen . . . that our industry finds such

usage of our product to be totally unacceptable. The choice of a banana
. . . constitutes arbitrary and reckless disregard for the unsavory

association that will be drawn by the public and the damage to our
industry that will result therefrom.

... I have no alternative but to advise you that we intend to hold PBS
fully responsible for any and all damages sustained by our industry as a
result of the showing of this AIDS program depicting the banana in the
associational context planned. Further, we reserve all legal rights to
protect the industry's interests from this arbitrary, unnecessary, and

insensitive action.'^'

It is not clear whether the objection by the letter-writer relates to associations

between bananas and penises, between bananas and condoms, or between bananas

and the topic of AIDS. What is quite clear, however, is the letter-writer's
perception that the American public would find those associations "unsavory."

Similarly, the plaintiffs in Curtis clearly confirmed this reticence to engage in open

discourse regarding sex: "There is a reason that, even in this day and age, some
adults suffer embarrassment when purchasing condoms from the drug store. It is
because adults know what condoms are used for, and a certain societal stigma
attaches to the open, public display of sexual intent.

"'^^

The perception of the letter-writer and the Curtis plaintiffs seems accurate.
It is unquestionable that many are not comfortable with any acknowledgment,
outside the private realm of the marital bedroom, of sexual activity or of methods,

such as condom usage, directed at preventing sexually-transmitted disease. A
resistance to perceiving AIDS as affecting "us" and 'our children" rather than
"others," and a common squeamishness about discussion of sexual matters
unquestionably affect judicial approaches to condom availability programs. That
resistance and squeamishness may impede essential efforts to assure the health and
well-being of young people for whom sexual activity presents risks unimagined
by the framers of the Constitution.

IV. Role of Judiciary--Identifying Children's Rights

While American law has traditionally attended to the interests of children, the

task of identifying and fostering those interests becomes singularly difficult in a

rapidly changing culture. In a world marked by increasingly intense division and

hostilities among social groups and by the increasing threat of AIDS, courts must

161. Douglas Crimp, How to Have Promiscuity in an Epidemic in AIDS: CULTURAL
Analysis, Cultural Activism 237, 255-56 (Douglas Crimp ed. 1988) (quoting letter of Robert

M. Moore to PBS).

162. Brief of Appellants at 46, Curtis v. School Comm., 652 N.E.2d 580 (Mass. 1995).



1996] CONDOMS DISTRIBUTION 617

act with searching imagination in identifying the interests to be protected before

they can begin to determine the proper scope of state involvement.

While most persons are quick to assert commitment to protecting children,

claims of advancing children's interests can often become slogans, and children
can sometimes become pawns in political struggles. The recent tragedy that
occurred in April 1993, at the Branch Davidian compound in Waco, Texas was a
situation in which children lost their lives due to a conflict between government

and sectarian groups. During the fifty-one days prior to the culmination of the

Branch Davidian saga, both sides asserted the well-being of the children remaining

within the heavily-armed compound as a primary consideration.'^^ While serious
questions may remain concerning the precise sequence of events, it appears that
at various times during the standoff between the Federal Government and the

members of the religious sect, federal agents in battle tanks threatened the cult
members by approaching their residence. '^"^ In response, the Branch Davidians
utilized children as powerful weapons by raising their children behind the

windows of the compound, in plain view of the government agents.
'^^

When Attorney General Janet Reno approved the Government's assault on the
members of the religious sect remaining within the compound, she asserted that
her fears for the safety of the children within the Branch Davidian compound were
a major factor in that decision. '^^ After a nearly two-month impassej^^ it was

apparently her behef in the existence of a threat to the well-being of the Branch

Davidian children that caused Ms. Reno to order federal agents to invade the
compound. '^^ Whatever uncertainties remain concerning the motivation of the

actors in the Waco situation, it is unquestionable that the discourse of children's
interests was involved and manipulated, consciously or unconsciously, by all

concerned. It is also unquestionable that, in spite of widely broadcast rhetoric by

contending forces claiming to protect children, numerous children lost their lives.

In the aftermath of Waco, divisions about the protection of children have
deepened. During the two years since the invasion of the Branch Davidian

compound, "'Waco' has become a rallying cry of right-wing paramilitary groups
. . . who say that the raid epitomizes ... a Federal Government that has trampled

1 63. Nancy Gibbs, Oh my God, They 're Killing Themselves!, TIME, May 3, 1993, at 26.

164. Id.

165. Id.

1 66. Stephen Labaton, Reno Sees Error in Move on Cult, N.Y. TIMES, Apr. 20, 1 993, at A 1

.

167. In February 1993, Federal agents tried to enter the compound to arrest the group's

leader, David Koresh, on suspicion of violating firearms laws. After four agents and five Branch

Davidians were killed, Federal agents and those inside the compound engaged in an armed standoff

that lasted fifty-one days. Id.

168. Id. Prior to ordering the Government to inject tear gas into the compound, Ms. Reno

spoke with doctors to obtain assurances that the tear gas would not injure the children. Id.

Ultimately, Ms. Reno was informed by a Branch Davidian member who had recently left the

compound that cult leader David Koresh was "slapping babies around" and beating children. Sam

Verhovek, Scores Die as Cult Compound is Set Afire After F.B.I. Sends in Tanks with Tear Gas,

N.Y. Times, Apr. 20, 1993, at A20.



6 1

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INDIANA LAW REVIEW [Vol. 29: 593

on the rights of individuals and turned on its own people."*^^ Each year since the
Waco fire, hundreds of persons travel to Texas on April 19th to attend vigils
commemorating the death of the Branch Davidians.*^" Most of the persons in
attendance belong to "citizen militias"'^' who, like the Branch Davidians, do not

trust the government and are preparing themselves for the day that government

troops invade their homes and "steal" their children. '^^ A lack of consensus about
what children need and how they should be protected has also been evident at the
highest levels of governmental policy-making in this country. President Bill

Clinton, together with Hillary Rodham Clinton, exemplify the national confusion
over who shall control the messages communicated to American children.

In 1993, President Clinton appointed Dr. Joycelyn Elders Surgeon General of

the United States. '^^ Fifteen months later, during a United Nations AIDS Day
symposium. Dr. Elders was asked to comment on the implementation of expanded
discussion and promotion of masturbation in the nation's schools, in order to

discourage school-age children from engaging in riskier forms of sexual activity.'^"*

She replied:

With regard to masturbation, I think that is something that is a part of
human sexuality, and a part of something that perhaps should be taught'^^
. . . [b]ut we've not even taught our children the very basics. And I feel
that we have tried ignorance for a very long time and it's time we try
education.

'^^

This candid response led President Clinton to ask immediately for her

resignation.

Moments after she uttered her response to the query regarding children and
masturbation. Dr. Joycelyn Elders was asked why she had answered such a
politically volatile question. She replied: "I'm not a politician, I'm a physician .

. . I'm about improving the health of all Americans. I'm not about getting elected

to a public office."'^^ Dr. Elders' sharp response brings to light the reality that

those who assert the right to control the health and well-being of children are often
influenced and encumbered by religious, political, and financial interests that

1 69. Katharine Q. Seelye, House Schedules Hearings on Assault Against Branch Davidians,

N.Y. Times, June 2, 1995, at A22.

170. Ginia Bellafante, Waco: The Flame Still Burns, TIME, May 1, 1995, at 47.

171. Christopher J. Fadey , Patriot Games, TIME, Dec. 1 9, 1 994, at 48.

172. Id. See also Evan Thomas & Russell Watson, Cleverness and Luck, NEWSWEEK, May
1, 1995, at 30.

173. James Popkin, A Case of Too Much Candor, U.S. NEWS & WORLD REPORT, Dec. 19,
1994, at 31.

174. Id

175. Id

1 76. Michael Gartner, You Pick: Candid Doctor or High-Flying General, USA TODAY, Dec.

27, 1994, at All.

177. Id.

178. Popkin, 5Mpra note 173, at 31.



1 996] CONDOMS DISTRIBUTION 6 1

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obstruct the development of a workable social consensus.

Consider the inconsistent pattern of Hillary Rodham Clinton's proposals
concerning the problems of meeting the multifaceted needs of children in this

country. In 1973, Ms. Rodham Clinton urged an increased awareness of
conflicting parental and state attempts at addressing the needs of children. Noting

the lack of existing guidelines for resolving that issue, she stated:

There is an absence of fair, workable, and realistic standards for limiting

parental discretion and guiding state intervention. . . . Securing children's

rights through the legislatures and the courts will include generating new
lines of legal theory, grounded in past-precedent but building onto it more

reasonable laws and legal interpretations for the future .... [T]he
resolution of theoretical problems . . . will . . . strip away the legalistic

camouflage surrounding the continuing problems of unchecked discretion,

inadequate resources, and widespread public indifference.'^^

Hillary Rodham Clinton recognized that this nation has failed at developing
a functional method of securing protection for children, and urged an employment

of fresh, uncamouflaged discourse to remedy this situation. Ms. Clinton, however,

seems to have shifted her perception of how to address the difficult questions
presented by the activities in which children and adolescents presently engage.

In June 1995, Hillary Rodham Clinton was asked by a news reporter to
comment on the subject of adolescents engaging in premarital sexual activity. Ms.
Clinton stated that her daughter Chelsea should wait until age twenty-one to

become sexually active, and further suggested that when she does engage in sex,
Chelsea should not discuss the matter with her mother. '^^ Ms. Clinton's comments
in 1973 and in 1995 express a recognition of the problems presented in meeting

children's needs and the methods to remedy those problems. But Ms. Clinton,

sometimes identified as radical in her defense of children's rights, evidences an

alarming refusal to generate new lines of communication, pairticularly where
sensitive sexual matters involving adolescents are involved. In a world much more
dangerous than the one in which Ms. Clinton wrote in 1973, it is disappointing to

see her failure to engage with the new challenges of defining children's interests
and rights.

Religious beliefs, for many, provide "truth" and guidance in resolving moral

quandaries in a temporal world, and are thus a major force in supporting day-to-

day existence. However, if the data regarding the high incidence of adolescent

sexual activity is to be believed, reUgion does not effectively insulate even

religious children from the coercion presented by constant exposure to multimedia

elements of American culture which relentlessly bombard the underpinnings of
their value systems.

At the present time, when intense hostilities focus on the meaning of
children's best interests, it becomes essential for courts to contribute to the

formulation of new understandings. Alfonso and Curtis have not made such

179. Hillary Rodham, Children Under the Law, 43 Harv. EduC. Rev. 487, 506 n.4 (1973).

180. See supra note 143.



620 INDIANA LAW REVIEW [Vol. 29:593

contributions. Instead, the Alfonso and Curtis decisions promote the further

polarization of the state and some Christian parents' positions in the national
discourse regarding the availability of free condoms in educational institutions,
and thus the control over one aspect of the lives of American adolescents.

Although these opinions vividly expose an enormous discordance in approaches

to balancing and reconciling interests asserted by or on behalf of parents, children,

and the state in an arena in which adolescence, sex, AIDS and religion co-exist
and contend, they manifest a sameness in their failure to engage at a deep level

with the changed social context.

In Alfonso, the court made a casual reference to this nation's "fundamental
values."'^* However, the court did not explain what those values encompassed.

The court therefore assumed a common, national understanding of those values.
In a time of uncertainty and conflict about values, that assumption is inadequate.

As long as courts follow the lead of Alfonso and Curtis, they will not contribute
to a deepened understanding of children's needs and to the articulation of useful

constitutional doctrine regarding Church and State relations.

Conclusion

The identification and fostering of children's interests is not a simple task in

a deeply divided society. The challenge of protecting children has been presented
in the "condom availability" cases in the context of deepening divisions between
Church and State, and an increasing threat to adolescents by the AIDS epidemic.
Courts which have thus far addressed the "condom availability" issue have been
disappointing in their failure to develop constitutional doctrine by frank

exploration of the cultural context in which the issues arise, the threat of AIDS,

and the uncertainty of "fundamental values." Such candid assessment is an

essential element in the process of reaching the kinds of consensus that will permit

the actual survival and well-being of children.

181. The court stated: "As with other grave risks we have faced during the past two centuries,

the threat of AIDS cannot summarily obliterate this Nation's fundamental values." Alfonso v,

Fernandez, 606 N.Y.S.2d 259, 266 (N.Y. App. Div. 1993) (citing Ware v. Valley Stream High

School Dist., 550 N.E.2d 420 (N.Y. 1989)).