Nothing says it’s illegal

An openly gay couple - filmmaker Kim Jho Gwang-soo and his partner Kim Seung-hwan - has appealed to a court after their marriage registration was rejected by a district administration in Seoul. Korea’s first lawsuit over same-sex marriage has stirred controversy in the traditionally conservative country, where Christian groups have an influential voice. The couple’s action followed a landmark ruling by the U.S. Supreme Court legalizing gay marriage. Once shunned as outcasts, more and more gay Koreans are being open about their sexual identities and demanding society accept them and extend equal rights to sexual minorities.

Nowhere in Korean law is there anything against homosexuality or same-sex marriage. Marriage is a consensual union - no more and no less. There is no legal provision in Korea that says a marriage must be between a man and a woman. Our school textbooks define a marriage as a union between a man and a woman. But they do not back it up with legal citations or academic reasoning. We have just grown to believe it as a social norm.

Unlike the long struggle for gay rights in western societies, our society and courts have not been challenged with the question of same-sex marriage. We’ve chosen to ignore the issue. If there have been any attempts by gay people to marry, they haven’t been publicized. That is why we’ve come to believe same-sex marriage is illegal in this country. In a society where the only definition of a marriage is known to be between an adult man and woman, the legal silence has led to misconceptions that any form of union beyond that is prohibited.

But such an interpretation goes against our highest law, the Constitution. Basic rights of all citizens must be respected under our Constitution. The right to marry is as basic an entitlement as free will. In accordance with legal and moral justice, one should be allowed to choose and decide whom to marry. To ban same-sex marriage in this country, the National Assembly should come up with a law first. If there are no legal grounds, the right to choose a life partner must be respected in accordance with constitutional basic rights. In short, our legal system - through its silence - ironically allows same-sex marriage.

Some critics cite a constitutional provision that says a marriage and family life should be based on individual dignity and equality of a different sex to claim same-sex marriage can’t be permissible. But this provision was designed to ensure equality between a husband and wife in married life. The provision was scrapped and revived in 1980 after Korea signed the United Nations Convention on the Elimination of All Forms of Discrimination against Women the previous year. The provision therefore cannot be cited to oppose same-sex marriage.

We can take Spain as an example. The Spanish Constitution’s Article 32 says a man and woman have the right to get married, suggesting a legally acceptable union should be between a man and woman. But the Supreme Court in 2012 ruled that the provision should be interpreted as one that recommends equal rights between a husband and wife and therefore cannot serve as legal grounds to ban same-sex marriage.

Other critics claim same-sex marriage should be banned because the couple cannot have “natural” births and therefore goes against our family system. Our Constitution as well as laws in other parts of the world separate marriage and family systems. Many forms of family units - a single parent family and adopted family ? exist in our society.

Some also could insist that since marriage is a social system subject to state protection, it must be strictly between a man and woman. But again this is misleading. Institutional guarantees cannot be the utmost priority. Human rights must come first if institutional guarantees infringe on the former. The right to get married should come before the institutional guarantee. Even if a union of a man and woman traditionally constituted the institution of marriage, the system won’t be impaired if it is extended to same-sex couples. Such reasoning had led to the rulings by the Spanish and U.S. Supreme Courts to legalize same-sex marriage.

“No union is more profound than marriage,” a U.S. Justice said as he read the final ruling.

A marital union is a sacred vow between two people committed to one another for life. That is why our Constitution cites individual dignity as the foundation for a marriage. It is a permanent union for two people to pursue and enjoy their individual dignities and values to the fullest level. Sexual preference and discrimination by gender should not interfere in just unions.

Translation by the Korea JoongAng Daily staff.

*The author is a professor at Konkuk University Law School.

by Han Sang-hee