사적 영역에서 동성애자의 평등권 보장을 둘러싼 헌법적 쟁점 – 차별금지법 제정을 중심으로 -

Abstract

In Korea, there are anti-discrimination laws in each area, but it has been pointed out that it is necessary to enact Anti-Discrimination Act as a comprehensive and basic law to supplement anti-discrimination laws and respond more effectively to relief from damage. However, attempts to enact the Anti-Discrimination Act, which began in 2007, have repeatedly failed. In particular, it is the result of a strong objection by conservative religious groups over the inclusion of “sexual orientation” in the prohibited grounds of discrimination, and in fact, all attention was focused on the discussion of this sexual orientation, so discussions on other issues could not be made. Under this background, this article seeks to address two large themes. First, the area to which discrimination is prohibited is expanding beyond the public sphere to the private sphere, with the theory that equal rights are applied between private individuals as its justification argument. In other words, the right of equality also applies to the relationship between private individuals, and the government should actively intervene in these relationships to pursue the realization of equality. This means a modification to the premise about the basic principle of private autonomy in the private sphere and the original nature that constitutional rights govern the relationship between the man and the state. Therefore, this article proves that this justification argument was not valid, and the reason why the anti-discrimination law, which includes the expansion into private sphere, can be justified is derived from the inherent powers and duties of the legislator. Furthermore, this article explored the basic direction that the Anti-Discrimination Act should pursue, considering that the right to equality is also the right for the individual against the government. Second, the most contentious part of the Anti-Discrimination Act is the “sexual orientation”, so for conservative religious groups and homosexuals who are at odds over this, the phrase is the most sensitive and important issue. According to international trends, the anti-discrimination law, excluding “sexual orientation”, is incomplete, so it is expected to eventually accept “sexual orientation” as a prohibited ground of discrimination in Korea near the future, it is necessary to minimize the expected problems and prevent conflicts and confusion in society in advance, if “sexual orientation” is included as a prohibited ground of discrimination. Accordingly, this article looked into whether the status of homosexuals corresponds to the “social status” in §11① of the Constitution. If so, the legislator’s discretion in enacting homosexual-related laws would be reduced. Furthermore, the problem that could arise when the discipline of the Anti-Discrimination Act expands to the private sphere, through the example of the United States, which judged that refusing to sell cakes to same-sex weddings against its religious beliefs violates the anti-discrimination law, has shown that the coercion of a uniform ban could limit the freedom of others. Therefore, this article argued that discrimination against homosexuals and conscientious objection based on religious beliefs should be distinguished. Finally, this article analyzed the acceptability of same-sex marriage, as a the aspirations of homosexuals who are discriminated by “sexual orientation” in marriage, by looking into whether same-sex marriage can be allowed under our Constitution, or whether it is impossible before a constitutional amendment, as is claimed by many scholars. The value of equality is beneficial and we must pursue it. However, it is feared that the freedom will disappear, when the government tries to intervene the relationship between the private individuals to revise what they agreed to be self-determination and free will through the standard of equality. Behind the argument that equal rights have direct effect among individuals, there is a risk that such concerns may be realised. Therefore, this paper aims to remind us that such arguments do not necessarily guarantee a better life for us, that furthermore, about the consequences of the absoluteization of equality that disregards private autonomy and freedom, and that our constitution is a constitution of liberal democracy. Now that the 21st National Assembly begins, it is highly likely that discussions on enacting the Anti-Discrimination Act, a long-standing task, will come back to the surface. However, in order to overcome strong opposition and gain social consensus on its adoption, it must be the result of wisely adjusting various problems or conflicts that can be raised if it demands the pursuit of equality or prohibition of discrimination in the private sphere. It should be assumed that it is not a problem that can be solved simply by removing “sexual orientation” from the prohibited grounds of discrimination.