종교의 자유에 대한 평등원칙 적용의 문제점 —미국 최혜국이론을 중심으로—

The “religion” in “freedom of religion” does not refer only to popularly recognized religions, so ensuring freedom of religion is complicated. In a democracy, laws are made by the majority, so restrictions on certain religious practices that are not foreseen by the law can arise at any time. In societies that are generally religiously diverse, the question of religious freedom usually boils down to whether individuals can refuse to act “contrary to their religious beliefs” if they are compelled to do so, i.e., whether they are guaranteed a “religious right of refusal”. In the United States, this is known as the “religious exemption”. This study was triggered by the religious freedom claims of an emerging religious group in the United States called ‘the Satanic Temple’. Since the U.S. judiciary has steadily and diligently developed jurisprudence that strengthens religious freedom and religious exemptions, creating, transforming, and reinforcing the so-called “most-favored-nation” doctrine, which reduces and reframes religious exemptions as a matter of “religious equality” rather than a matter of “restriction of religious freedom”. The U.S. judiciary has now gone beyond “nondiscrimination between religions” and “nondiscrimination between religion and non-religion” to require “nondiscrimination on any secular ground or condition” to ensure freedom of religious exercise. In this regard, it is worth noting the Supreme Court's recent ruling regarding interviews for law school at a national university. A national university denied a candidate's request to change the time of the interview based on his religious beliefs, and the candidate was ultimately rejected. The Supreme Court did not determine whether the refusal restricted freedom of religion or whether it was justified, but rather determined that it violated the principle of equality under the Constitution. This study analyzes the danger of the Supreme Court's case in that it converts the 'legitimacy of restrictions' on religious freedom, which should have been judged, into a 'right to equality' issue, as is the case in the U.S. In addition, the court deviated significantly from the general understanding of the principle of equality by deriving the obligation of national university presidents to eliminate substantial inequality from the principle of equality in Article 11 of the Constitution, and made a decision based on an absolute equality order for religion by declaring a violation of equality without a comparator or perspective.