미국 헌법상 국교부인 원칙의최근 동향과 시사점 -정교분리 개념의 재정립 필요성을 중심으로-

The 13 British colonies that formed the backbone of the United States each had different mainstream Christian denominations. Nine of these colonies established official religions. The reason the Establishment Clause was explicitly written into the First Amendment to the U.S. Constitution was to prevent a specific Christian denomination from becoming the established religion. In other words, the legislative intent for the Establishment Clause was to prevent the government from interfering with or discriminating against religion. Everson v. Board of Education in 1947 led to a debate over whether the Establishment Clause should be interpreted as a complete severance of relations between church and state. In 1971, the U.S. Supreme Court created a specific review standard for the separation of church and state in Lemon v. Kurtzman (the “Lemon Test”), but confusions continued in the lower courts and, due to its ambiguity, it failed to serve as a guideline for the state legislative. Recently, the U.S. Supreme Court, in Kennedy v. Bremerton School District, abolished the Lemon Test and the endorsement test derived from it, and instead presented a standard that the Establishment Clause should be interpreted with reference to historical practice and understanding. It also brought an end to the long-running debate over government financial support for religious schools on the basis of the principle of “level playing field,” and clearly defined the limits of the Establishment Clause to ensure that the principle of the separation of church and state and the religious freedom would not conflict with each other in Carson v. Makin which is a landmark case. Meanwhile, the provision on the nonrecognition of a state religion and the separation of religion and politics in the First Constitution of the Republic of Korea was legislated under the influence of the U.S. Constitution. However, the relationship between politics and religion has been distorted through the ordeals of modern and contemporary history of Korea, and the distorted concept of separation of religion and politics, which views the separation of religion and politics as a complete severance of relations between politics and religion, still continues. Just as the Establishment Clause in the U.S. Constitution had an influence on the provision on the separation of religion and politics in the First Constitution of the Republic of Korea 77 years ago, the Establishment Clause jurisprudence recently developed by the U.S. Supreme Court has great implications for Korea now. It is worth considering accepting, through necessary institutional transformation suited to Korean reality, the following points: (i) creating a new interpretation standard for the Establishment Clause that is based on history and tradition, (ii) resolving the controversy over government financial support for religious private schools on the basis of the principle of leveling the playing field, and (iii) setting limits on the separation of church and state so that extreme separation of church and state may not infringe on religious freedom. In addition, compared to the United States, where the Johnson Amendment has become a dead letter, the freedom of religious participation in politics in Korea needs to be expanded. In conclusion, it is necessary to break away from the perspective that sees the separation of religion and politics and the freedom of religion as mutually antagonistic and to fundamentally re-establish the relationship between them by recognizing the separation of religion and politics as a prerequisite and means for guaranteeing the freedom of religion.