종교의 자유 보장에 대한 비교법적 검토 ― 대법원 2024. 7. 18. 선고 2022두43528 전원합의체 판결과 미국 연방대법원 판례를 중심으로

Recently, the Supreme Court of Korea held that the Gwangju Metropolitan City Mayor's ban on indoor worship services at religious facilities during the COVID-19 pandemic did neither infringe on religious freedom nor violate the principle of equality (Supreme Court of Korea, July 18, 2024, 2022Du43528, En Banc Adjudication). This ruling simply followed the Korean Supreme Court's previous position of not recognizing the preferred position of religious freedom. The Constitutional Court of Korea also takes the position that religious exemptions from neutral laws of general applicability are not permitted, and that such religious exemption legislation violates the separation of church and state. On the contrary, the U.S. Supreme Court held that the state government’s ban on indoor worship services at houses of worship for the purpose of preventing the spread of COVID-19 infringed on religious freedom[S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020)]. The reason for such conflicting rulings on the same issue is that the United States recognizes the preferred position of religious freedom and applies the stricter standard of review to religious freedom than those applicable to other constitutional rights. In addition, the U.S. Supreme Court has held that the legislation for religious exemptions from the neutral laws of general applicability is constitutional. Meanwhile, in 1990 the U.S. Supreme Court, in the Employment Division v. Smith case, abandoned the strict scrutiny standard for reviewing whether a neutral law of general applicability infringe on the freedom of religious practice. However, in response to the Smith, the U.S. Congress enacted the 「Religious Freedom Restoration Act (RFRA)」, which restored the application of the strict scrutiny standard even to cases where neutral laws of general applicability cause a substantial burden on religious freedom, and guaranteed the right to file a lawsuit, the right to defend, and the right to seek damages to prevent the protection of religious freedom from being undermined. Freedom of religion, along with freedom of expression, is one of the most important spiritual freedom in a constitutional state. It is reasonable to recognize the same preferred position for freedom of religion as freedom of expression and adopt stricter standards of review for freedom of religion than other freedoms. To this end, it is necessary to enact a 「Religious Freedom Protection Act」 similar to RFRA of the United States. If the 「Religious Freedom Protection Act」 is enacted so that people whose fundamental rights have been violated due to laws or the exercise of public power that infringe on religious freedom can utilize the means of relief under the 「Religious Freedom Protection Act」, it will have the effect of drastically reforming laws, practices and the exercise of public power that infringe on religious freedom. In its current state, it is difficult for South Korea to join the ranks of advanced democratic countries that provide strong protection for spiritual fundamental rights. In this context, the enactment of the 「Religious Freedom Protection Act」 is urgent. It is in line with the obligation to guarantee fundamental rights imposed on the government by the Korean Constitution, and the legitimacy of the legislation is acknowledged in terms of the principle of maximum guarantee of fundamental rights.