성별에 따른 차등적 조치와 평등 위반 심사의 정합성 여부

The issue of “gender” is highly sensitive in both the realm of norms and the space of reality, primarily due to the mechanisms of “discrimination” at play. The constitutional norms, as reflected in Article 11, clearly articulate the principle of equality and the right to equality, listing “gender” as a prohibited ground of discrimination, thereby reflecting the clear intent of the framers of the Constitution. However, there is ongoing debate regarding the relationship between the phrasing of the first sentence of Article 11, which declares “equality before the law,” and the second sentence, which prohibits discrimination based on “gender, religion, or social status.” The discussion on the relationship between the first and second sentences of Article 11, paragraph 1, is closely linked to the standards and intensity of review concerning potential violations of equality based on “gender”—the focal point of this article. Interpretations that do not recognize the independence of the second sentence tend to view the prohibited grounds of discrimination as an illustrative list and do not apply enhanced scrutiny to cases of discrimination based on these grounds. Instead, the appropriate standard of review is chosen after examining the specific case at hand. However, it is more reasonable to interpret the list of grounds in the second sentence as exhaustive, and the correct standard of review for such cases should be strict scrutiny, applying the principle of proportionality. Even under this interpretation, there remains flexibility to adjust the intensity of review in individual cases, depending on the content of Article 11 and other relevant constitutional provisions. Discriminatory grounds not explicitly listed in the second sentence may be assessed based on their impact on fundamental rights, using the broader category of the first sentence to determine the standard of review. This article aims to examine the relationship between the first and second sentences of Article 11 of the Constitution, as well as the principle of proportionality that the Constitutional Court began applying in its decision on the Veterans' Bonus Points Case. It will analyze cases of gender-based discrimination addressed in Constitutional Court practice from a diachronic perspective, scrutinize the rationale presented by the Court when selecting standards of review, assess the theoretical coherence and consistency of those arguments, and propose alternative approaches.