미연방대법원 최근 판결(United States v. Windsor, Hollingsworth v. Perry)을 통하여 살펴본 미국에서 동성혼 관련 헌법적 논의

Korean courts have not recognized same-sex marriage as a type of legitimate marriage. The issue of same-sex marriage, including one movie director’s announcement of his same-sex marriage, is becoming gradually a topic of discussion in the Korean society. Since 2000 several countries, including some in the E.U. and North & South Americas, have recognized same-sex marriage. On the other hand, courts of some other countries have decided that their societies are too premature to allow legitimate same sex-marriage. In the United States, as of present, 18 states and Washington D.C. recognize lawful same-sex marriage. On the federal level, there was the U.S. Supreme Court’s recent decision to support same-sex marriage. In United States v. Windsor, the U.S. Supreme Court decided that Defense of Marriage Act(DOMA) Section 3, defining marriage as a union between a man and a woman, is unconstitutional. While writing the majority opinion of the U.S. Supreme Court’s case, Mapp v. Ohio(1961), Justice Tom Clark stated “[t]here is no war between the Constitution and common sense.” In Windsor(5-4 decision), it seems that Justices writing the majority opinion agree that allowance of the same-sex marriage is near to common sense. It means that sexual orientation should not be a discriminatory classification. On the same day the Supreme Court reviewed the constitutionality of California Proposition 8, which defined the meaning of marriage as a union between a Man and a Woman. By saying that the party did not have standing, the court did not express a direct opinion about Proposition 8. However, in the future it is possible that lower level federal courts and states’ courts might be influenced by Windsor’s endorsement of same-sex marriage. Windsor and Perry give us an opportunity to rethink the role of courts. Courts must think seriously whether they should always support majority rule, monitor the possibility of tyranny of the majority and listen to carefully minority’s interests, or balance between those values. When we see issues of same-sex marriage, we should not forget the days when we ignored several fundamental rights which we should have given full respect to at the time. In the not so distant future, Korean courts may be forced to decide whether same-sex marriage is simply different or if it is wrong. In this way, the U.S. Supreme Court’s concerns regarding same-sex marriage could have value for comparative research.