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No right to same-sex marriage—Korean Supreme Court to hear case with potential to redefine marriage

  • Supreme Court of the Republic of Korea to hear case to determine if a same-sex partner can be registered as a “dependent spouse” under Korea’s National Health Insurance Service 
  • International law does not require the redefinition of marriage, but rather protects it, ADF International asserts in amicus brief

SEOUL, SOUTH KOREA (27 June 2024) The Supreme Court of the Republic of Korea is set to rule on a case to determine if a same-sex partner can be registered as a “dependent spouse” under Korea’s National Health Insurance Service (case no. 2023DU36800). Korea defines marriage as between a man and a woman. The ruling has the potential to legally undermine that definition by redefining the concept of ‘spouse’. 

Throughout Asia – including Korea – marriage is predominantly understood and legally recognized as a union between a man and a woman. The Supreme Court is expected to hand down its ruling in the coming months. 

“Strong, stable marriages are essential for the protection of children, the promotion of family, and the stability of society.

The importance of marriage for children and society  

In the amicus brief submitted to the Court, ADF International underscores the importance of marriage between a man and a woman for the welfare of children and society. Research cited in the brief shows that children benefit when raised by their biological parents in a stable marriage.  

In its amicus brief to the Supreme Court, ADF International demonstrates the significant state interest in protecting marriage. 

“The definition of marriage as a union between a man and a woman is a fundamental cornerstone of many Asian societies, including Korea,” stated Tehmina Arora, Director of Advocacy, Asia for ADF International. “Strong, stable marriages are essential for the protection of children, the promotion of family, and the stability of society. Therefore, we urge the Supreme Court to recognize the importance of marriage and uphold a definition that has served societies for millennia.” 

No international right to same-sex marriage 

Contrary to what has been argued before the Supreme Court, there is no obligation in international law to redefine marriage as a relationship between any two people regardless of sex.   

Article 16 of the Universal Declaration of Human Rights (UDHR) states, “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family…” Notably, this is the only article that refers to “men and women” rather than “everyone” or “no one”. This underlies the universal understanding that this provision protects a specific kind of union grounded in the opposite sex of the individuals.  

Other seminal international instruments, such as the International Covenant on Civil and Political Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms, also fundamentally understand marriage as between a man and a woman. 

“The role of the State is to protect the family and support parents as they raise their children. While the right for men and women to marry is recognized under international law, there is no corresponding obligation to redefine marriage. Korea has the sovereign right to reflect the unique, timeless and universal reality of marriage in its domestic law,” stated Arora.  

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