Legalizing Same-Sex Marriage in South Korea

By Michael Reingold

South Korea has yet to legalize same-sex marriage, and the future of same-sex marriage for LGBTQ South Koreans is bleak.[1] Many articles of the South Korean Constitution, however, pave a way for reform and enable South Korea to legalize same-sex marriage in the future — even as South Korean courts continually and arbitrarily refuse to uphold and legalize same-sex marriages.[2]

South Korea’s judicial system is primarily based upon a civil law system in which the judiciary's focus is on the Constitution, laws, and regulations — not case law.[3] According to Article 103 of the Constitution, “[j]udges shall rule independently according to their conscience and in conformity with the Constitution and laws.”[4] In essence, judges in South Korea have the “duty to follow duly enacted statutes, and possibilities for judges to follow their moral judgment against the intent of the legislature is limited,” and “positive law has much more sway than natural law in the judicial process.”[5] This adherence to a sort of plain meaning, textualism rather than judicial activism, is a reflection of “Korean society still contain[ing] some elements which are typical of pre-modern society” as compared to “modern legal system[s] . . . fully established . . . in Western societies.”[6]

Over the last decade, however, “scholars have noted the emergence of a kind of transnational constitutionalism, in which the courts claim the power to review constitutional amendments in order to protect the constitution’s substantive core of basic norms.”[7] Additionally, South Korean courts have grown more attuned to “the rise of attention to human rights,” which has “led to a growing tendency to resort to the notions of natural law” rather than codified law.[8] Thus, there has been a “shift toward judicial activism” in which South Korean judges have departed from the judicial tradition of adhering to codified law and are now embracing “the global trend to assert judicial power to review the constitution” through the framework’s spirit.[9]

At the same time, South Korean citizens are slowly becoming more active in the judicial system. Traditional aspects of South Korean culture are “deeply-embedded in Confucian virtues that emphasize harmony and avoiding dispute and litigation.”[10] The majority of South Koreans have never been to a courthouse before and are proud to have not been a part of litigation since it generally opposes Confucian ideals of reconciliation.[11] Recently, however, the United States has influenced South Korea, and “there has been a ‘dramatic change in the attitudes of the [South] Korean people toward litigation’” with many “becoming more litigious, more willing to advance legal claims, and more willing to resort to the courts.”[12] This means that newer generations of South Koreans will likely look to the courts to secure certain notions of equality as a result of legislative inaction and increasing global influence through the internet.[13] The internet has become increasingly influential in South Korean culture, and, because of this increased access to other democracies, citizens see the judiciary as a source of change instead of a source of conflict.[14] Additionally, more South Koreans are beginning to accept same-sex sexuality and believe that society should accept same-sex sexuality.[15] As a result, South Koreans may increasingly place pressure on the judiciary as an alternative avenue for same-sex marriage legalization.

Judicial activism should focus on societal and cultural democratization so that all South Koreans, including same-sex couples, can fully reap the benefits of economic growth, political democratization, and marriage. Courtesy East Asia Forum.

This movement toward “judicial activism,” or judge-created understanding of the Constitution, provides a path for legalizing same-sex marriage in South Korea even if judicial activism has not been used for many societal rights.[16] The South Korean Constitution is rich with articles that provide several specific mandates on the South Korean government and people.[17] For example, the Constitution explicitly provides rights that the government and the people should protect: freedom of occupation, equal right to receive an education, a duty of citizens to work, and a right to a healthy and pleasant environment.[18]

These Constitutional provisions were based on “the cause of the Provisional Republic of Korea Government born of the March First Independence Movement of 1919, and the democratic ideals of the April Nineteenth Uprising of 1960 against injustice.”[19] The March First Independence Movement in the future capital city of Seoul was “the first nationwide political protest in Korea under Japanese colonial rule,” which ultimately “failed to achieve national sovereignty,” and Japanese control continued until the end of World War II.[20] The April Nineteenth Uprising was a student-led protest in South Korea after its liberation from Japan, the civil war in Korea, and the split of Korea at the 38th parallel between Soviet and United States occupations that sought a more just society and election system.[21] Thus, there is a particular focus in the Constitution on the basic principles of “sovereignty of the people, the separation of powers, the pursuit of the peaceful unification of the Korean peninsula, the pursuit of international peace and cooperation, the rule of law, and the responsibility of the state to promote social welfare.”[22]

These guiding principles have served to empower the Korean Constitutional Court to enable “institutional reform discourse in many areas of Korean Society.”[23] Specifically, the Constitutional Court has focused on “stopping many unconstitutional political regulations of the past and encouraging institutional reform efforts of the future.”[24] The focus for much of South Korea is on “overcom[ing] the devastation of war and successfully achiev[ing] economic growth and political democratisation.”[25] However, this has occurred at the expense of focusing on deeply-rooted cultural beliefs that tend to discriminate against non-traditional societal norms, like same-sex marriage and anti-discrimination measures.[26]

South Korean judges should concentrate on the existing positive law in the Constitution as a basis for their decision to exercise a form of judicial activism that does not cut into the “judicial obligation to enforce written law.”[27] Instead, judicial activism in South Korea could be based on “a sense of duty that the Court should feel that it owes to the public to uphold the rule of law, even if there are political pressures to do otherwise.”[28] Thus, judicial activism should focus on societal and cultural democratization so that all South Koreans, including same-sex couples, can fully reap the benefits of economic growth, political democratization, and marriage.

[1] See Simon Denyer & Min Joo Kim, These South Korean Women Went Abroad to Get Married. Then One Spoke Out at Home, and the Backlash Began., Wash. Post (Mar. 22, 2020), https://www.washingtonpost.com/world/asia_pacific/south-korea-same-sex-marriage-gay-lesbian/2020/03/22/2890df14-61f6-11ea-912d-d98032ec8e25_story.html; Same-Sex Couple Loses Suit Against State Health Insurer Over Spousal Coverage, Yonhap News Agency (Jan. 7, 2022 3:26 PM), https://en.yna.co.kr/view/AEN20220107006200315; South Korea Court Rejects Film Director’s Same-Sex Marriage Case, Guardian (May 25, 2016 4:49 AM) [hereinafter South Korea Court], https://www.theguardian.com/society/2016/may/25/south-korea-rejects-film-director-kim-jho-gwang-so-same-sex-marriage-case.

[2] See Daehanminkuk Hunbeob [Hunbeob] [Constitution] art. 10, art. 11, art. 17, art. 19, art. 34, art. 36, art. 37, art. 103, art. 109 (S. Kor.); S. Korean Court Rejects Gay Couple’s Appeal Over Same-Sex Marriage, Yonhap News Agency (Dec. 6, 2016 6:35 PM) [hereinafter S. Korean Court], https://en.yna.co.kr/view/AEN20161206010400315.

[3] See Daehanminkuk Hunbeob [Hunbeob] [Constitution] art. 103; The Supreme Court of Korea, The Judiciary: Introduction, The Sup. Ct. of Korea (last visited Jan. 23, 2022), https://eng.scourt.go.kr/eng/judiciary/introduction.jsp.  

[4] Daehanminkuk Hunbeob [Hunbeob] [Constitution] art. 103.

[5] Marie Seong-Hak Kim, Travails of Judges: Courts and Constitutional Authoritarianism in South Korea, 63(3) Am. J. Comp. L. 601, 633 (2015).

[6] Sangdon Yi & Sung Soo Hong, The Legal Development in Korea: Juridification and Proceduralization, in Law and Society in Korea 108, 108 (Hyunah Yang ed., 2013).

[7] Seong-Hak Kim, supra note 5.

[8] Id.

[9] Id.

[10] See Ilhyung Lee, Korean Perception(s) of Pyungdeung (Equality), in Law and Society in Korea 67, 77 (Hyunah Yang ed., 2013).

[11] Id. at 78.

[12] Id. (quoting Kyong Whan Ahn, The Influence of American Constituionalism on South Korea, 22 S. Ill. U. L.J. 71, 84 (1997)).

[13] See id.

[14] See Elaine Ramirez, Nearly 100 Percent of Households in South Korea Now Have Internet Access, Thanks to Seniors, Forbes (Jan. 31, 2017 1:52 PM EST), https://www.forbes.com/sites/elaineramirez/2017/01/31/nearly-100-of-households-in-south-korea-now-have-internet-access-thanks-to-seniors/?sh=50e6c1e85572.  

[15] See Sungeun Yang, Young Generation’s Perceptions of Same-Sex Sexuality and Attitudes Toward Same-Sex Marriage in South Korea, 11(3) Sage Open 1, 2 (2021). “The Korea Institute of Public Administration (2018) conducted the “Korea Social Integration Survey” (8,000 respondents) and reported that those who said they ‘cannot accept samesex sexuality’ fell below 50% for the first time in the survey’s history. This percentage decreased from 62.1 percent in 2013, to 57.2 percent in 2017, and to 49.0 percent in 2018.” Id. “In addition, the Pew Research Center (2020) surveyed 21 countries in 2002 and 34 countries in 2019 to examine changes in public attitudes toward same-sex sexuality. The 2019 survey reported that 44 percent of South Koreans suggested that same-sex sexuality should be accepted by society, compared to only 25 percent who claimed this view in 2002.” Id.

[16] See Seong-Hak Kim, supra note 5; Kuk-Woon Lee, The Constitutionalisation of Representative System in Korea, in Law and Society in Korea 172, 175 (Hyunah Yang ed., 2013).

[17] See generally Daehanminkuk Hunbeob [Hunbeob] [Constitution].

[18] See id. at art. 15, art. 31, art. 32, art. 35.

[19] Id. at Preamble.

[20] See Noa Ronkin, On the Centennial of the March First Independence Movement of Korea, Stanford Freeman Spogli Inst. for Int’l Stud. (May 13, 2019), https://fsi.stanford.edu/news/centennial-march-first-independence-movement-korea.

[21] See Kyung Moon Hwang, Remembering April 19, 1960 Student Revolution, Korea Times (Apr. 16, 2014), https://www.koreatimes.co.kr/www/news/nation/2016/05/633_155532.html.  

[22] Kuk-Woon Lee, supra note 16.

[23] Id. The South Korean Constitution mandates that “[w]hen the constitutionality of a law is at issue in a trial, the court [generally speaking to any court in South Korea] shall request a decision of the Constitutional Court, and shall judge according to the decision thereof.” Daehanminkuk Hunbeob [Hunbeob] [Constitution]. at art. 107 § 1. Thus, the Constitutional Court’s interpretation is substantially influential and essentially the constitutional reasoning applied at trial. Ultimately, however, “[t]he Supreme Court [of South Korea] shall have the power to make a final review of the constitutionality or legality of administrative decrees, regulations or actions, when their constitutionality or legality is at issue in a trial.” Id. at art. 107 § 2.

[24] Kuk-Woon Lee, supra note 16.

[25] Id.

[26] See Amnesty International, South Korea: Lawmakers Must Seize Chance to Pass Landmark Anti-Discrimination Act, Amnesty Int’l (Aug. 9, 2021 11:16 AM), https://www.amnesty.org/en/latest/news/2021/08/south-korea-lawmakers-must-pass-landmark-anti-discrimination-act/.  

[27] Seong-Hak Kim, supra note 5, at 633-34 (quoting Youngjae Lee, Constitutional Court Justice Resigns; Conscience and Judging, Korean Const. L.: (Occasional) Thoughts on Korean Const. L. and the Const. Ct. (June 2, 2005, 7:38 AM)).

[28] Id.