동성혼인과 평등보호 - U.S. v. Windsor 판결의 헌법적 의의를 중심으로 -

Recently, an open wedding of a same-sex couple, a movie director and a CEO at a film distribution company, drew public attention in Korea. Until now, in Korea, the courts and the scholars have generally conceded that same-sex marriage is not allowed since the first clause of Article 36 of the Constitution of the Republic of Korea provides that “[m]arriage and family life shall be entered into … on the basis of … equality of the sexes ….” Therefore, the clause emphasizing equality of marriage seems a paradox to same-sex couples in that it is also a basis not to permit same-sex marriage to them. However, it seems proper to discuss whether denying same-sex marriage violates Article 11 of the Korean Constituion guaranting equal protection under law. In that sense, it is helpful for us to review U.S. v. Windsor of the U.S. Supreme Court. In that case, Windsor was denied benefit of estate tax exemption because the Defense of Marriage Act (DOMA), which was challenged, defined marriage as a union between “one man and one woman.” Justice Kennedy, who delivered the opinion of the Court, ruled that DOMA violated the principle of equal protection by injuring the peple whom the New York state intended to protect. Despite scholars have presented many different understandings about the case, we may find out a few meanings. First, the Windsor Court conceded that “[t]his status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages,” giving up the traditional view that marriage is a union of one man and one woman. Second, Justice Kennedy did not use the expression, “right to marry.” However, we may see this case as a right to marry case in that New York gave “the same status and dignity as that of a man and woman in lawful marriage” to same-sex couples. Third, DOMA is unconstitutional because DOMA discriminated the same-sex couples who were legitimately married by the State and its desire to demean and injure them could not justify disparaing treatment to them. Fourth, DOMA was unconstitutional since the power to define and regulate marriage has been exclusively belonged to the States. But the principle of federalism results in a unequal consequences because whether or not to allow same-sex marriage varies from state to state. The U.S. law’s attitudes towards homosexuality started from the first phase punishing sodomy acts, and now it arrived at the fourth phase that it is unconstitutional to discriminate against same-sex couples. The one thing that is left to the Court is to decide whether state laws disallowing same-sex marriage are unconstitutional. In that sense, we should think that same-sex marriage is a human relationship between two persons on the basis of love and dedication through the constitutional perspectives such as human dignity, liberty and equal protection of law.