동성혼에 관한 미국 판례의 전개

This article explores the issues and developments of the U.S. court decisions on same-sex marriage, focusing on the major cases decided by the states’ highest courts and the U.S. Supreme Court. The courts in the U.S. have shown dramatic changes during the last decades in their attitude towards same-sex marriage and the jurisprudence in interpreting their state and federal constitutions with respect to the right to marriage and the right to equality. This article analyzes the main issues raised and discussed in the U.S. court decisions and finds implications for Korean courts. This article begins with an overview of major court decisions since 1970s to the recent ones, including the U.S. Supreme Court decision in June 2013. Then, it discusses the main issues brought before courts regarding same-sex marriage, by dividing them into three categories. First, it discusses the issues around same-sex marriage itself, the definition of marriage and the right to marriage. They include the debates about the link between marriage and childbirth or child-rearing, marriage as institutional benefits and marriage as a civil right. Second, the article looks into the arguments by opponents of protecting the interests of third parties by banning same-sex marriage and how the U.S. courts have dealt with them. These issues include the freedom to object to same-sex marriage, protection of heterosexual marriage, and the welfare of children. Finally, it explores the issues around the tension between the legislature and the courts and how jurisprudence has developed to protect gay and lesbian people as a social minority group. It then concludes with a discussion on implications of the U.S. experience in the context of Korean jurisprudence.