혐오와 처벌 ― 군형법 추행죄에 대한 헌법재판소 결정 비판 ―

The Constitutional Court of Korea made three decisions in 2002, 2011, and 2016 upholding the constitutionality of the crime of indecency under the Military Criminal Act, which criminalizes sexual acts between male soldiers. The reasoning in essence was that the punishment is justified because ‘an act for sexual satisfaction between homosexual soldiers that objectively raises aversion to ordinary people and is against good sexual morality’ may damage ‘healthy living and discipline in the military's communal society,’ and thereby weaken military power and threaten national security. This article analyzes that the decisions of the Constitutional Court primarily rely on the notion of morality rather than harm. After reviewing the logics adopted in the three decisions, this article reveals that the reasoning is heavily premised upon heterosexism and homophobia. It refers to the classical debates during the middle of the 20th century around morality versus harm as the basis for justification of criminal punishment, and points out that the theoretical shift to the harm principle had an critical effect in repealing the sodomy law in the United States. The Constitutional Court of Korea has also recognized the harm principle in its 2015 decision when it ruled adultery law unconstitutional, stating that mere immorality cannot justify criminal punishment. The Constitution rejects prejudice and upholds pluralism and inclusion. This article thus argues that the Constitutional Court should decide that the feeling of disgust or the judgment of immorality cannot make the valid reason to criminalize homosexuality, and that the Constitutional Court should overrule its precedents and abolish the crime of indecency under the Military Criminal Act.