동성커플과 국민건강보험 - 동성커플을 국민건강보험 피부양자로 인정할 것인가? -

Abstract

In February 2023, the Seoul High Court ruled that the National Health Insurance Corporation's denying the beneficiary of the national health insurance for same-sex couples was unfair. The main reason for this is that not being recognized as a same-sex couple constitutes a“discriminatory treatment on the grounds of sexual orientation.”This overturned the first-instance court's ruling that same-sex couples are not eligible for marriage because marriage is the union of a man and a woman. Homosexuals evaluate this ruling as "the first step toward legalizing same-sex marriage."* Professor of Law, Hongik University Opponents, on the other hand, regard the ruling not as the simple issue of qualification for the beneficiary, but as the serious issue of legal acceptance of same-sex union. The ruling actually sees de facto marriage spouses and same-sex couples on an equal footing. That is why the High Court saw it as a violation of the principle of equality not to recognize same-sex couples, unlike common-law spouses. The background to this decision is the belief that “discrimination on the grounds of sexual orientation must be prohibited”. In addition, as a premise, this decision has the recognition that "sexual orientation is not a choice, but an innate nature." However, this premise requires scientific verification. Today, the claim that sexual orientation is an innate nature has been effectively discarded by many scientific studies. Nevertheless, it would be highly illogical to consider it a foregone premise of any legal argument. Attempting to equate same-sex union with de facto marriage, which is the union between a man and a woman, stems from a lack of understanding of why the Korean Constitution stipulates marriage and family life as objects of state protection. It is true that various communities have emerged today for social, economic and cultural reasons, and that they require proper legal protection and support. Therefore, if necessary, they can be allowed as various forms of the family that require state protection and support. But this should be based on the social consensus. This means that the legalization of same-sex union should be decided by the legislature, not by the judiciary.