With the Constitutional Court for the first time urging the military to allow alternative service for conscientious objectors, the focus is now on whether the court would overturn its previous rulings that ban homosexuality in the military.
According to legal experts and human right activists, Incheon district court has filed a motion with the Constitutional Court for a ruling on whether the current military criminal law violates the constitutional right to protecting sexual minorities.
The Military’s Criminal Acts stipulate that all service members, cadets and civilian workers in the military shall face up to two years in prison if they engage in anal intercourse or other forms of sexual harassment.
“The punishment (stipulated in the military’s criminal law) clashes with the principle of proportionality and violates the right to protect sexual orientation and personal liberty,” Incheon District Court judge Lee Yeon-jin said in her motion in February 2017.
The Constitution bans any form of discrimination on the basis of sexual orientation, though the supreme law does not have a specific clause for sexual minorities. Same-sex marriage is not legally recognized in South Korea.
The Constitutional Court upheld the military’s criminal law during its previous rulings in 2002, 2011 and 2016. In the 2016 ruling, the nine-member court ruled 5-4 in favor of punishing homosexuality in the military.
The Constitutional Court then said banning homosexuality in the military can be tolerated as the military faces “special circumstances.” If sodomy is allowed in garrisons, it would undermine soldiers’ readiness posture, the court added.
“Banning sexual activities between the same-sex service members and criminally punishing such behaviors is a proper measure to ensure military discipline and sound activities in garrisons,” the court said.
Homosexuality in the military roiled South Korea last year when the Army allegedly conducted an investigation into gay servicemen, prompting debate among then-presidential candidates over the country’s poor record on LGBT rights.
Human rights activists claimed that Army investigators confiscated mobile phones from as many as 50 soldiers suspected of being gay, and pressured them to identify gay colleagues on their contact lists and dating app.
During his presidential campaign, then-candidate Moon Jae-in said while he opposed discrimination against sexual minorities, he advocated bans on homosexuals in the military and same-sex marriage in the country.
By Yeo Jun-suk (email@example.com