헌법상 정교분리원칙의 심사기준 - 헌법재판소 2022. 11. 24. 선고 2019헌마941결정을 중심으로 -

On November 24, 2022, the Constitutional Court of Korea issued its first decision to find a governmental act to be in violation of the Constitution on the basis of the Separation of Church and State Clause under Article 20(2) of the Constitution of Korea. While the ruling itself that found compelled religious services in the military to be unconstitutional may not be too surprising, this decision is noteworthy as it provides guidance to the test and standards that the Constitutional Court of Korea applies in deciding cases according to the Separation of Church and State Clause. The Court reasoning includes four factors that would trigger a breach of Separation of Church and State : ① in case the act is not for a secular purpose, ② if the act could be perceived as an endorsement or disapproval of a certain religion, ③ if the act has an actual effect of granting preferential treatment to a certain religion, or ④ if the act causes close entanglement between religion and government. The Court takes a flexible approach and considers each factor that may alone call for unconstitutionality, rather than setting out a strict test to be applied in all cases. The aforementioned standards that the Constitutional Court applied closely resemble the Lemon Test and Endorsement Test adopted by the Supreme Court of the United States. While the Korean Court was clearly influenced by the U.S. jurisprudence, it is hard to find the standards identical in application due to the different level of separation or neutrality required as identified by each Court. Currently the standards adopted by the Korean Court seem to require a more heightened level of scrutiny when compared to the U.S. Court, and it may be expected that these differences will become more apparent in the future as the Korean Court continues to apply and fine-tune its standards as required in upcoming cases.