헌법상 가족 개념의 변화와 동성혼에 관한 논의

Reflections on the Concept of Family in the Constitution and the Same-Sex Marriage: a Comparative Law Perspective

When societal conflicts rage over an important issue, such as those surrounding same-sex marriage, it is not easy to find a way to resolve them. In terms of democratic legitimacy, it is preferable for parliament to resolve the issue, but if that process does not work and human rights violations continue, the judicial process could resolve complex political issues rather than leaving them unresolved. Court judgments have emerged as a form of civil discourse linking judicial activism, social movements, and human rights movements. Additionally, civil discourse on law, rights, and justice is no longer the exclusive domain of experts because judicial decisions have become a catalyst of democratic communication between people and the state. Moreover, judicial dialogues play a positive role in overcoming the limitations of democratic institutions. For this reason, the active role of the courts is not incompatible with democratic principles but also enforces the active obligation of the state to address issues such as grave human rights violations caused by delayed political decision-making. The Same-Sex Marriage Act was passed by the German Federal Council (Bundesrat) on July 7, 2017, and was passed by both houses of parliament without constitutional amendments. This would not have been possible without the role of the Federal Constitutional Court of Germany. It has made a significant contribution by ensuring that the constitutional concept of family is interpreted more dynamically to reflect changing realities and by removing a number of discrimination surrounding marriage. A complete ban on same-sex marriage is hardly a necessary restriction. It is also contrary to the Law of Balancing as it is difficult for a state restricting individual freedoms and rights to justify the serious harm that same-sex couples would suffer as a result of a complete ban.