간접차별로서의 양심의 자유 제한과 그 정당성 심사

When public authorities refuse to reschedule an interview for a religious minority who wishes to observe the Sabbath or force a conscientious objector to perform military service, this can be understood both as a restriction on freedom to exercise conscience through omission and as indirect discrimination. Indirect discrimination occurs where a seemingly neutral standard is applied but results in disadvantages to members of certain groups due to social stereotypes or factual differences. The principle of equality prohibits not only direct discrimination but also indirect discrimination. Although the existing system regarding the legitimacy of discrimination is divided into proportionality review and arbitrary review, it is proper to apply a single scale of proportionality and diversify the intensity of review in consideration of the reasons and forms of discrimination, e.g. increase the intensity when the discrimination is based on important components of an individual's personality, such as conscience. Freedom to exercise conscience through omission refers to the freedom not to be forced to act against one's conscience, that is, freedom to conscientious objection. Restrictions on freedom of conscience are subject to proportionality test, and since freedom to exercise conscience through omission is closely related to one's personality and dignity, it is necessary to increase the intensity of review. Therefore, if a restriction on freedom to exercise conscience through omission constitutes indirect discrimination, it should go through a proportionality review, and the intensity of review should also be strengthened. In relation to necessity, it should be examined whether there is an alternative that is less harmful to freedom of conscience while equally advancing the purpose of exercising public power, which can also be a reasonable accommodation that remedies indirect discrimination. At the stage of balancing, all the benefits and harm that can be caused by accepting a conscientious objection or a request for accommodation should be weighed. The intersection of freedom of conscience and equality rights shows the extent to which the conscience of minorities can be respected and protected. By applying an intensive proportionality test to restrictions on conscientious objection which also constitute indirect discrimination, hopefully we may resolve structural discrimination and realize substantive equality.