Issues Regarding the Recent Legalization of Same-Sex Marriage in the United States : With Implications on South Korea’s Case



The United States Supreme Court has ruled that same-sex marriage should be protected as a legal right all across the United States. This decision was made possible through a series of cases that established fundamental constitutional principles regarding the right to marry, the right for equal protection, and the right to privacy. The decision holds importance as it recognizes these principles and enforces them legally so that it can have impact on people’s lives. Right of gays and lesbians have long been a heatedly debated issue, and South Korea is in its first step of starting the discussion. There are constitutional and civil law-related legal issues regarding same-sex marriage in South Korea, and they are currently being discussed in the recent lawsuit. South Korea would be able to find insight in previous cases around the world, which can be largely divided into legislative method and litigation method.


. Introduction

“No Union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. …. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” [1]

With Justice Anthony Kennedy’s major opinion above, the United States Supreme Court ruled on June 26, 2015, that same-sex marriage should be protected as a legal right.[2] The issue of same-sex marriage and legal rights of gays and lesbians has long been debated almost everywhere around the world, and this recent decision of the United States Supreme Court marks a historical moment in the debate. On the other hand, Kim Jho Kwang Su and Kim Seung Hwan couple in South Korea got married in September 2013, but their marriage has failed to obtain legal recognition.

This couple has filed the first same-sex marriage lawsuit on June 10, 2015,[3] arguing that it is unconstitutional not to recognize same-sex marriage. This essay aims to discuss the fundamental principles under the United States Supreme Court’s decision, and to derive implications for South Korea’s case. With implications from the United States’ case, this essay will focus on legal discussions and possible suggestions for same-sex marriage in South Korea.


. United States Supreme Court Decision

             The Supreme Court provided three basic principles in its decision in Obergefell v. Hodges case[4]. First, the Court recognized the right to marry as a fundamental human right that should be protected under the Constitution. Second, the Court made it clear that the “Equal Protection” clause provides everyone equal right not to be discriminated. Third, it also recognized the right to privacy under the “Due Process” clause. These underlying principles were established through a long history of past court decisions.


  1. Underlying Principles

(1) Right to Marry

Generally, marriage is considered as a legal union between husband and wife in many countries, including the United States. In legal terms, marriage is recognized as a civil contract, or civil status/relationship between two people who have agreed to live together. Components of effective marriage are 1) Legal ability of concerned parties, 2) Mutual consent regarding the marriage, and 3) Substantive form of contract assigned by the law.[5] Marriage is considered vital in maintaining human lives, and for example, in Loving v. Virginia, the court held that “marriage is one of the basic civil rights of man, fundamental to our very existence and survival”.[6]

Marriage can have both symbolic and material meanings. First, marriage works as a symbol of public acceptance and endorsement for a relationship. Justice Sandra Day O’Connor mentioned in Turner v. Safley that “marriage is an expression of emotional support and public commitment”[7] and emphasized that marriage is not only important in its emotional aspect, but also crucial for its symbolic aspect. In short, marriage in legal terms carries public importance as it entails public legitimacy and endorsement of getting married.

Second, marital benefits involve not only symbolic benefits but also a myriad of material and economic benefits. For instance, United States v. Windsor was originated because of material benefits of marriage, especially regarding inheritance tax.[8] Tax benefit is one of the key advantages of getting married. Married couples can add each other’s income and file for joint tax return. Also, married couples can transfer property to their spouses without getting penalties. Inheritance is also a crucial issue concerning material benefits. According to Uniform Probate Code, a spouse is entitled to receive a substantive part of inheritance from the other spouse, while it is unclear how the same issue is supposed to work out for unmarried couples. Thus, it is much easier for married couples to hold, transfer, and inherit each other’s property. However, in United States v. Windsor, the federal Defense of Marriage Act (hereinafter DOMA) restricted the distribution of federal marriage-based benefits to same-sex marriage couples. Thus, the plaintiff could not claim the unlimited marital deduction for the federal estate tax.[9] This material-based benefit of marriage became an important issue in this decision.

The right to marry, with these symbolic and economic meanings, has been widely accepted as a constitutional right by many states and the Supreme Court. The right to get married to anyone he or she wants and to receive entailing benefits, can also be connected with fundamental rights like pursuit of happiness and rights for equality. Recognizing this, US Supreme Court has also traditionally accepted the right to marry as a constitutional right.[10]


(2) Right for Equality and Right to Privacy

The right to get equal treatment regardless of one’s sexual orientation, social class, economic status, religion or any other standards, is one of the most important constitutional rights. The Fourteenth Amendment of the United States Constitution provides “Equal Protection” clause in this regard. This clause prohibits treating people differently based on irrational reason, and has been used as a constitutional basis for preventing discrimination of minority groups. In Romer v. Evans[11], the United States Supreme Court based its decision upon this clause. The court ruled that the Second Amendment of the Colorado Constitution which invalidated civil rights protections for gays and lesbians is unconstitutional. The Supreme Court stated that the Second Amendment is a strict violation of the Equal Protection clause, and there is no rational basis to limit only the rights of gays and lesbians.[12]

The right to privacy is respected as a basic human right that allows citizens to make their own decisions without getting restricted by the government or any other external intervention. The United States Constitution’s “Due Process” clause protects the liberty and rights of individuals, and the Supreme Court ruled in Lawrence v. Texas (2003) that the “Due Process” clause involves the right to have private sexual relationship without governmental interference.[13] Previously, the court ruled that sodomy between homosexuals should be criminalized in Bowers v. Hardwick[14], but the Supreme Court changed its opinion that the state cannot intrude into the private life of an individual.

Justice Kennedy stated in major opinion of Obergefell v. Hodges that same-sex marriage can be guaranteed under the “Equal Protection” clause and the “Due Process” clause of the Fourteenth Amendment. The two clauses are closely connected in protecting the fundamental rights and freedom of individuals.


  1. Implications

The United States Supreme Court decision legalizing same-sex marriage all across the United States carries significant implications for the discussion of gay couples’ rights. In the national level, 14 states which previously prohibited same-sex marriage are no longer able to enforce their ban. This also puts an end to decades of bitter legal battles. Although appeals and protests against the decision would continue in some states, the decision itself holds importance as the first national court decision.

In the international level, the decision can possibly have positive impacts on other countries. It established basic constitutional principles of the right to marry and the right for equality, and recognized that social norms and perceptions regarding same-sex marriage can change. Also, the decision made it clear that marriage does not only refer to a union between man and woman, but between anyone who love each other. With these implications in mind, this essay will look at South Korea’s case and discuss future outlook for legalization of same-sex marriage in South Korea.


. Legal Issues Regarding Same-Sex Marriage in South Korea [15]

Discussions regarding rights of gays and lesbians have not been very active in South Korea, compared to a myriad of cases in the United States. Kim Jho Kwang Su and Kim Seung Hwan are the first couple to publicize their marriage as a gay couple, and also the first to file an administrative litigation against the District for denying their marriage registration, and also to challenge the Constitution to recognize same-sex marriage. So far, there have been legal discussions concerning the Constitution and the Civil Act.

First, constitutional issues involve discussions regarding the right to marry, right for pursuit of happiness, and gender equality. Article 36.1 of the Korean Constitution states that marriage and family life should be guaranteed based on human dignity and gender equality. The Korean Constitution does not define marriage as a union between a man and a woman in express terms, but there are differing opinions regarding the interpretation of the clause. Article 10 of the Constitution guarantees fundamental human right for pursuit of happiness and dignity, and this could entail right to choose one’s marriage partner based on self-determination. Moreover, Article 11.1 constitutes gender equality, stating that no one should be discriminated based on gender. There are differing opinions regarding these provisions, and interpretation of the provisions is likely to be a crucial legal issue in same-sex marriage cases.

Second, there are issues concerning provisions of the Civil Act. Kim Jho Kwang Su and Kim Seung Hwan couple has filed an administrative litigation against the Seodaemungu District of Seoul, appealing against the district’s decision to deny the couple’s marriage registration. The district claimed that the current provisions in Civil Act and Act on the Registration, Etc. of Family Relationship only recognize a union between man and woman as a rightful legal union. However, Kim Jho Kwang Su and Kim Seung Hwan couple argued that there is no direct provision in Korean Civil Act that regulates the district’s claim, and it is unconstitutional not to recognize their marriage. The couple has currently filed an administrative litigation, and said that they are planning to file a constitutional appeal as well.[16]


. Outlook and Possible Suggestions for Same-Sex Marriage in South Korea

As we review the current discussions, there seems to be a long road ahead before the rights of gays and lesbians, and same-sex marriage can be institutionalized. This essay provides possible suggestions for Korea to take in the institutionalization of same-sex marriage.

Many countries have been legally institutionalizing same-sex marriage after Denmark first implemented ‘Registered Partnership Law’ in 1989. Worldwide institutionalization of same-sex marriages can be categorized into three types: 1) Complete legalization of same-sex marriage (Belgium, Netherlands, Spain, Canada, and recently the United States), 2) Recognition of same-sex marriage as a new type of social union different from marriage, such as ‘Registered Partnership Law’ in Denmark (and also Pacte Civil de Solidarité in France), 3) Recognizing only basic marital rights and duties between same-sex marriage couples.[17] South Korea does not constitute any of these categories, and is only on the verge of starting the discussion of institutionalizing same-sex marriage. There could be two possible methods of institutionalization, based on examples of other countries.

First, legislation of same-sex marriage could be one way. Netherlands and Denmark are representative countries for legislation of same-sex marriage. Denmark was the first country to provide legislation for same-sex couples as mentioned above, and Netherlands followed. Netherlands has started to introduce rights and benefits to same-sex couples since 1979, and in 1998, the country implemented the ‘Registered partnership law’ (Huwelijk tussen personen van gelijk geslacht), which is similar to Denmark’s model.[18] In 2001, Netherlands implemented Marriage Law that legalized same-sex marriage for the first time in the world.[19] Netherlands’ model went through numerous amendments to get approval from majority of the population. It took a gradual, step-by-step process to amend various issues such as religious issues, children nurturing, and social security burden, and finally succeeded in complete legalization of same-sex marriage. This could be a special case that was made possible due to peculiar characteristics of Netherland society, such as its open democratic system. However, the process Netherlands took for legalization of same-sex marriage could possibly work as a model for Korea in the future. Its gradual institutionalization by building social consensus could work as a benchmarking case.

Second, institutionalization can be achieved through litigation methods. This has been the case in the United States and Canada. In the United States, discussion regarding gay and lesbian rights first started in Lawrence v. Texas[20], which sparked the debate on same-sex marriage. In 1993, Hawaii State Court stated that prohibiting same-sex couples to get married is against the Constitution, and since then there had been uprisings and heated debates regarding the issue of same-sex marriage. These discussions even led to the enactment of DOMA in 1996, which defined marriage only as a union between one man and one woman. However, in 2012, Windsor v. US[21] concluded that DOMA violated the equal protection clause of the Constitution. With these series of court decisions, the United States Supreme Court has been addressing the constitutional issues regarding same-sex marriage, and finally acknowledged same-sex marriage nationally through the recent decision. This method could also work as an important step to make institutionalization possible.


. Conclusion

This essay discussed the recent United States Supreme Court decision to legalize same-sex marriage and suggested possible implications on South Korea’s first same-sex marriage lawsuit. First, the essay dealt with basic underlying principles behind the United States’ decision. The principles include the right to marry, the right for equal protection, and the right to privacy, which are protected under the United States Constitution. These principles have gone through many discussions and judicial cases, but still work as fundamental principles that made the legalization possible.

Second, this paper focused on the case of South Korea and discussed outlook and possible suggestions for institutionalizing same-sex marriage. There are constitutional and civil law issues concerning same-sex marriage in South Korea, which can have various interpretations. Legislative and litigation methods could be suggested as possible methods for institutionalization, bearing insight from examples of other countries.

South Korea’s first same-sex marriage lawsuit has just started in June, 2015, and there is still a long way to go before any conclusion can be established. However, more open and fruitful discussion regarding the issue would certainly facilitate the way towards institutionalization of same-sex marriage.




[1] Justice Anthony Kennedy, Obergefell v. Hodges, 135 S. Ct. 2584, majority opinion (2015).

[2] US Supreme Court rules gay marriage is legal nationwide, BBC News (Jun. 27, 2015), (last visited Jul. 20, 2015).

[3] Agence France-Presse, Gay couple sue for recognition of their same-sex marriage in South Korea, The Telegraph (Jul. 5, 2015), (last visited Jul. 20, 2015).

[4] Supra note 1.

[5] Black’s Law Dictionary, 7th Edition, 986, 1999.

[6] Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967).

[7] Turner vs Safely 482 US.78 (1987).

[8] United States v. Windsor, 133 S. Ct. 2675, 186 L. Ed. 2d 808 (2013).

[9] Alison M. Smith, Same-Sex Marriages: A Legal background after United States v. Windsor, CRS Report, 8, (Oct. 10, 2014) available at

[10] Supra note 6.

[11] Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996).

[12] Ibid.

[13] Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003).

[14] Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986), overruled by Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003).

[15] See generally Kim, Byeong-Rok, The Constitutional Issues of Same-Sex Marriage, DongA Law Journal (trans. by writer), Vol. 43, 1, 4-5 (2009).

[16] Lee Sung-eun, Korea’s 1st lawsuit calling for gay marriage starts, Korea Joongang Daily (Jul. 7, 2015), (Jul. 20, 2015).

[17] See generally Choi Hyun Suk, International tendencies of same-sex partnership institutionalization (trans. by writer), Global Review, Korean Women’s Development Institute (May 23, 2007).

[18] Kees Waaldjijk, Small change: How the Road to same-sex marriage got paved in the Netherlands, Legal Recognition of Same – Sex Partnership. A Study of National, European and International Law, 437 (2001).

[19] Christy M.Glass, Nancy Kusbasek & Elizabeth Kiester, Towards a European model of same-sex marriage rights: A viable pathway for the US, 29 Berkeley J. International Law,132,144 (2012).

[20] Supra note 13.

[21] Supra note 8.


Posted in Autumn 2015.