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17 Hastings L.J. 439 (1965-1966)
Moral Preemption Part II: The Natural Law and Conscience-Based Claims in Relation to Legitimate State Expectations

handle is hein.journals/hastlj17 and id is 471 raw text is: Moral Preemption Part II: The Natural
Law and Conscience.-Based Claims
in Relation to Legitimate
State Expectations
THE first amendment to the Constitution of the United States
guarantees that Congress shall make no law       abridging the free-
dom of speech       or the right of the people peaceably to assemble,
and to petition the Government for a redress of grievances. Does this
include a right to call attention to one's cause by deliberate dis-
obedience to civil laws? Some demonstrators may argue that such a
right is included in the First Amendment; others appeal rather to a
higher law, a moral or religious law The latter is the subject of this
The appeal of demonstrators to a higher law or to conscience is
not, strictly speaking, an appeal to preemption of a given area of
conduct by a higher law, but rather an appeal to the prevalence of a
higher law m a case of conflict of law Strict preemption of an area
of conduct by a religious law might be argued under the concept of
the separation of church and state: that in certain areas where the
church claims competence, the state should not legislate at all. This
has been discussed widely, especially in past centuries.' However, even
those who held for such preemption limited their claim to specific
areas and admitted that there were areas which were mixed--
generally, areas of morality which also affected public order, such as
murder, theft, and such.
Preemption in a broader sense may be taken to mean that in cases
of conflict of laws, the higher law should prevail. It is in this sense
that modem demonstrators appeal to a law higher than any merely
human law, in claiming a right to disobey certain civil laws. The kinds
- A.B., 1940, M.A., 1941, Gonzaga University; S.T.L. 1948, Alma College; S.T.D.,
1952, Gregorian Umversity, Rome. Professor of Moral Theology, Alma College, Los Gatos,
Califorma, 1951-present. President, Alma College.
I It has been most recently discussed m the Second Vatican Council's Declaration
on Religious Freedom, found m the National Catholic Reporter, Dec. 15, 1965, p. 6;
[hereinafter cited as Declaration on Religious Freedom]; The Constitution on the Church
tn the Modern World, m THE DocumErs oF VATicAN II 14 (Abbott ed. 1966).

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