Discussions on the Enforcement of Morality

Abstract

AbstractThis chapter explores the issue of enforcing or punishing moral matters because this issue is still a subject of intense debate. This is why state neutrality is emphasized in certain areas while strong state intervention is claimed in other contexts. However, there is no doubt that having a “general” position under some principles relating to state intervention will eventually bring about some degree of conflicts. Discrimination based on sexual orientation is often based on public moral sentiment, particularly when it offends the sentiments of various majority groups, including religious ones. One example is the prohibition on same-sex marriage. As the state manages and controls the institution of the marriage system, prohibition of same-sex marriage is considered to create a very significant problem in terms of discrimination based on individual sexual orientation by the state. The root of the question of whether or not to allow same-sex marriage is the extent to which the state can intervene in individuals’ good life.Korea does not have much case law related to discrimination based on sexual orientation yet. One of the main reasons for this is that Korea considers issues related to homosexuality as a matter of morals, which makes the issue more complicated. Therefore, I discuss the relationship between the enforcement of morality and individual autonomy in this chapter before starting the debate on discrimination based on sexual orientation in earnest. The discussion on the enforcement of morality is necessary because in the debate over which area of morality a state should intervene in it is not easy to reach agreement. Furthermore, it is important to deal with the infringement of individual autonomy in defining the scope for the state to enforce morality. This issue is related to equality and leads to the discussion of discrimination based on sexual orientation through court decisions in the following chapter. In a situation where there is no case law of same-sex marriage, it is important to look at other similar cases that have been regarded as moral enforcement. In that sense, this chapter will introduce the cases on adultery and prohibition of marriage between the same surnames and the same places of origin, which will explain how South Korea tackles discrimination based on sexual orientation in the cases to come.KeywordsMoral enforcementHarm PrincipleLegal enforcement of moralityLegal PaternalismAdulteryProhibition on marriage between same surnames and same places of origin