헌법문제로서 동성간 혼인-동반공동체(시민결합)-Goodridge판결(Massachusetts주 대법원 2003.11.18)과 BVerfGE (1 BvF 1/01 v. 2002.7.17)에 대한 평석을 중심으로

Same-Sex Marriage or Civil Union(Life-Partnership) as the Constitutional Issue -in the Context of the ‘Goodridge v. Dept. of Public Health’ Case in Massachusetts and ‘Life-Partnership’ Case(LPartDisBG-Urteil) in Germany

In 18. Nov 2003, in Goodridge v. Dept of Public Health, the Massachustts’ Supreme Court held that a ban on same-sex marriage vilolates the state constitution's guarantees of equality and due process of law The court had stressed that. without the right to equality in marriage itself - not to the' separate bur equal’ alternative of a marriage-like status, but a different name, gays and lesblans are not only demed full protection of the laws, but are excluded from the full range of human experience. This holding, while monumental in effect, rested on the conclusion that the Dept of Public Health had failed to articulate a rational basis for denying civil marriage to the same-sex couples, while permitting civil marnage under Massachusetts law for the heterosexual couples Assummg with the separate opinion, however, that a difference m name would Itself have the socio-cultural meanmg and Impact, the rational basis test may not be irrelevant to the court's vicarious dicision-making as to the need for classification and what conceivable bases exist to justify the difference. Because the Job of the judiciary is not to rewrite the constitution and law, but to interpret them On the contrary held the Federal Constitutional Court of Gennany that just because the name is different, the life-partnership, despite of the full permission of the same-sex couples to the marriage-like status m almost every respects, does not violate the requirements of the Basic Law, especially the order for the special protection and the discrimination in favor of the marriage, which is included in the contents of the basic norm and institution-guarantee in Art 6 of the Basic Law The separate opmion held that the life-partnership as 'separate but equal' alternative form of a marriage-like status, just by reason of the recognition of substantially equal protection, violate the constitutional order for the privilege of the marriage In principle this paper will advocate separate opinions in two decisions First of all, It is criticaliy rev18wed whether the same-sex marriage or the alternative marnage-like institution of the life-partnership could be legal1zed without constitutional amendment m Massachusetts and Germany In the aspect of the general theory of the constitution is hard to miss the senous doubt about the supremacy of the two SUPI eme Courts in the final decision-making process as to the choice about same-sex marriage or civil union For us these two decisions are very hard to comprehend But we should not remain merely as the confused observer without self-reflection Now and in the public hall, we must open the same-sex marriage debate for finding the words to explain to ourselves and our children. "How did they get there?". "What is marriage for in our traditional family customs. environments and constitutional order?"