Social consensus is required

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.

Regardless of sexual orientation, to love another is a human right that must be respected and protected as a part of equal dignity in the eyes of the law. If laws exist to ensure individual freedoms and rights, the liberties and rights of sexual minorities are entitled to the same legal protections regardless of their sexual identities and orientation. To whom one is attracted is fundamentally a private matter, a demonstration and exercise of free will stemming from one’s identity, lifestyle and philosophy. The choice therefore should be fully respected. To discriminate against anyone for his or her sexual orientation is already legally defined as morally unjust in accordance with the right to equality.

But respecting individual rights and freedoms in sexual orientation is different from recognizing same-sex relationships as a part of marriage or the institution of the family.

A marital union is based on individual love, trust, devotion and sacrifice and constitutes a family unit that is essential to society. In short, the institution of marriage not only defines a relationship and the obligations of a couple, but also bestows social meaning. Once a couple takes oaths as husband and wife, the two enter into a permanent arrangement of legal obligations in cohabitation, support, cooperation and fidelity. Their legal status affects estates, inheritance, alimony, division of property, aggravation or mitigation in the case of criminal punishments, duties in criminal cases, reduction in taxes, liabilities and compensation in pensions and insurances as a legal partner. The institution of marriage would make two complete strangers relatives, bestowing a connection to all the blood relations of each other’s partner. A marriage, therefore is not simply a matter of the individual rights of equality and freedom, but also has social ramifications and obligations. What should come first can be debated, but the social aspect of the institution of marriage cannot be ignored.

The institution of marriage cannot be an eternal truth. Its meaning will obviously evolve according to changes in society and general perceptions. But since a redefinition of marriage will affect the system of families - the civilization’s oldest and most important social value - recognition of a marriage beyond the traditional concept needs to be discussed and based on a broad social consensus. For instance, the legalization of same-sex marriage could allow advocates of polygamy to claim similar rights. Legalizing same-sex marriage in Korea, therefore, is premature.

Same-sex couples can seek legal protection even without being legally married. If a couple decides to break up, the partners can ask a court to divide their estate and arrange alimony based on a de facto marriage status. One also can inherit leases upon the death of a life partner. Inheritances and legal parenthood of children born from artificial pregnancies, entitlements to pensions and insurance as a spouse, family, or relative also can be solved through the current legal system and common laws. Winning legal status is not the end of same-sex marriage. What would be more important to fight for are practical legal protections and gains.

Translation by the Korea JoongAng Daily staff.

*The author is a professor of Chonbuk National University Law School.

by Kim Min-jung