Protection for Marriage and the Family in a German Context ― Focusing on the Implications on the Discussion of Same-sex Marriage in South Korea ―

There has been very little progress in guaranteeing the rights of sexual minorities in South Korea, and the general situation in terms of recognizing same-sex relations is much worse than in the EU or Germany in that the acceptance level is extremely low. The issue of same-sex relations, particularly same-sex marriage is a challenge in Korean society. When the political process does not work properly, complex political problems must be solved by means of the judiciary. The judgment of the court appeared as a form of civil discourse linking judicial activism, social movements, and the human rights movement. In this way, the civil discourse regarding law, rights, and justice no longer remains solely in the area of specialists. Judicial judgments initiate democratic communication between the people and the state, without being restricted to simply being the judgment about an individual’s limited interests. There is great diversity in modern family structure: heterosexual or same-sex couples who assume responsibility for children in marriages, registered partnerships, or de facto relationships; and children who are conceived naturally or by methods of assisted reproduction, and are related to both, only one or none of the two or more people they are raised by. In general, the concept of family that is protected under the Constitution is difficult to define as a specific family type because the concept of family is constantly changing amid the development of various family forms. From the perspective of the evolving concept of family in a German context, differences between Article 119 of the Weimar Constitution and Article 6 GG can be pointed out. Firstly, marriage is no longer seen as the foundation of a family under the concept of family stipulated in Article 6 GG. Equality of both sexes has served to promote equality not only within the institution of marriage but also in society in general, which actually provided steps toward equal marriage rights. Equal marriage rights grant the right to marry to couples in different-sex relationships as well as same-sex relationships. The Korean Constitution does not explicitly define the legal concept of marriage. The right to same-sex marriage should be protected as an individual life plan, and lifestyle including marriage or childbirth are respected. A democracy whose aim is to protect diversity should recognize a diversified form of the family. In respecting diversity, same-sex marriage should also be recognized as a minority protection of human rights.