宗敎의 自由에 관한 硏究 : 美國聯邦大法院의 判例를 중심으로 = (A)study on the freedom of religion in the U.S.A.|RISS 상세보기

다국어 초록 (Multilingual Abstract)

Today Korean society shows the trend toward a religious pluralism which consists of Protestant, Catholic, Buddhism etc. Thus, multiple religious problems have been raised more and more along with societal change in Korea. Following the principle of 'state neutrality', our courts have taken a negative position in solving such religious problems, simply applying principal norms to religious cases. Especially the courts have not tried actively to participate into problems concerning the doctrine of separation of state and church or prohibition of established church under the Article 20 Section 2 of our Constitution.
The protection of religious freedom could be fulfilled through the cases concerning religious beliefs and actions. Nevertheless, there have been few religious cases in Korean constitutional history. And in determining the cases our supreme court has applied only statutes, but not constitutional principles. Therefore, it is important to review American history of religious development and the Supreme Court's attitude toward religion clauses, implementing the principles of protecting the freedom of religion.
It is impossible to define the concept of 'religion' in a word in the USA because it is based upon a religious pluralism. As Choper recognized in his article, 'Defining "Religion" in the First Amendment', no satisfactory definition is likely to be conceived. The scope of religious pluralism in the U.S. alone has resulted in such a multiplicity and diversity of ideas about what is a religion or a religious belief. No simple formula seems able to accommodate them all. The difficulty of definition derives also from the fact that no set of factors has been found that religion cannot be satisfactorily distinguished from philosophy or ideology.
The Supreme Court has therefore indicated that the category of religion must be open ended. Indicating that none of the attempts to formulate a constitutional definition of religion has been satisfactory, Professor Greenwalt concluded that the attempt to settle upon any one definition is misconceived. Because the religion is such a complex subject that no single definition is likely to be satisfactory, we must proceed the common law method of case by case analogical reasoning. It has been the Supreme Court's attitude that the court gradually create a body of case law that can produce a true definition.
In the early period of American colony, most Americans probably imagined that religion inherently had something to do with the concept of a creator God. But some religions, for example Buddhism, have no such concept of God. And a number of famous Christian theologians have attempted to "demythologize" their religion by removing all the supernatural elements. Thus, the concept of religion has been changed to imply all the faiths of "ultimate concern" along with the passage of time.
Some scholars have suggested that the term "religion" ought to be defined differently for different purposes. Professor Tribe did not even attempt an overall definition in his famous constitutional book, only suggesting that non-theistic creeds should be protected by the free exercise clause, but should be free of the restrictions of the establishment clause. The object of the religion clause is the same, but scholars maintain that there are two definitions according to whether applied to the establishment clause or the free exercise clause. Indeed, the Supreme Court has supported Tribe's reasoning of two definitions of the religion clause. The Court has in fact adopted a dual definition of religion, an expansive interpretation for the free exercise clause and a more confined interpretation for the establishment clause.
In the United States v. Seeger, the most generous definition of religion was in a statutory, rather than a constitutional setting. The Supreme Court interpreted a provision of the Universal Military Training and Service Act that exempted from military service, "those persons who by reason of their religious training and belief are conscientiously opposed to participation in war in any form." Religious belief was defined as "an individual's belief in relation to a Supreme Being involving duties superior to those arising from any human being. Although this case was resolved as a matter of statutory interpretation, the decision had a significant constitutional importance. Seeger's functional approach in defining the concept of religion has been applied since then to resolve religious problems.
In oder, however, the Supreme Court had retreated from the Seeger's position by emphasizing that the free exercise clause's extraordinary exemption was available for only a religious belief or practice. Without specifying the criteria for a definition, the Court expressed a relatively cautious approach. "A way of life may not be interpreted as a barrier to reasonable state regulation of education, if it is based on purely secular considerations; to have the protection of the religion clause the claims must be based on religious belief. Although a determination of what is a religious belief or practice entitled to constitutional protection may present a more delicate question, the very concept of ordered liberty in which society as a whole has important interests to limit individual's freedom of religion.
Most of all, in the Reynold case, the distinction between belief and action was first mentioned. Religious clause embraces two concepts - freedom to believe and freedom to act. People are free to believe but they may not be allowed to act upon those beliefs in all instances. This became evident in civil liberty cases in the twentieth century and indicated that religious rights, like others, are not absolute, but must be balanced against other competing social rights.
The Supreme Court in the Lemon case has developed a three-part test for assessing violation of the establishment clause. In order to pass constitutionality of statutes concerning the establishment clause, government action first, must have a secular, rather than a religious purpose; second, may not have the principal effect of advancing or inhibiting religion; and third, may not involve excessive entanglement between government and religion. Also, the law must not create an excessive degree of political division along religious lines.
Originally, the protection of free exercise of religion and the prohibition against establishment of religion were intended to apply only to Congress, not to the states. The American people had learned by bitter experience of Civil War and subsequent violent civil rights struggles that several states cannot always be relied on to protect all the rights of all their citizens. What was at issue was the incorporation of the religion clauses into the Fourteenth Amendment, making them applicable to the states as well. Those citizens who are disadvantaged by the states to grant them the basic rights may appeal to the Federal Constitution to protect the rights by virtue of their federal citizenship. In the Cantwell v. Connecticut, the Supreme Court reaffirmed that the First Amendment were wholly applicable to the states by the Fourteenth Amendment.
Today Korea is faced similar situations compared with those of the U.S.A. where a religious pluralism flourishes. But in Korea there are few cases concerning the freedom of religion and at most those cases have been dealt with only by applying statutes technically in favor of the protection of state security or social order. The freedom of religion is more important than any other spiritual freedoms; Therefore it should be secured strictly and inclusively. In solving religious conflicts which are raised under the religious pluralism, there should be some general rules or guidelines based upon rationality. American's experiences, specially efforts of the Supreme Court which developed some guidelines for the solution of religious conflicts will suggest us some lessons. At any rate, there are some differences comparing the conditions between Korea and the U.S.A. What we have to learn from the U.S.A. experiences is not the contents of precedents themselves, but the attitude of the Supreme Court to do its best to fulfill the freedom of religion.

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목차 (Table of Contents)

제1장 序論 = 1
I. 問題의 提起 = 1
II. 硏究의 目的 = 2
III. 硏究方法및 範圍 = 4
제2장 宗敎의 槪念 = 6

제1장 序論 = 1
I. 問題의 提起 = 1
II. 硏究의 目的 = 2
III. 硏究方法및 範圍 = 4
제2장 宗敎의 槪念 = 6
I. 宗敎槪念의 定義를 위한 法院의 努力 = 7
(1) 유태-기독교 傳統의 敗退 = 7
(2) 法律解釋을 통한 槪念定義 = 8
(3) 宗敎의 槪念과 宗敎의 判斷基準 = 9
II. 宗敎條項과 宗敎의 槪念 = 13
(1) 國敎禁止條項과 宗敎의 槪念 = 14
(2) 自由로운 行使條項과 宗敎의 槪念 = 15
III. 聯邦大法院의 接近方法에 대한 批判論 = 17
(1) 槪念定義의 困難性 = 17
(2) 窮極的關心事에 대한 批判論 = 18
(3) 超現實的結果論 = 18
(4) 先驗的實體論 = 20
(5) 特徵을 중심으로 한 類推的接近論 = 21
(6) 外部的徵表에 입각한 類推的接近論 = 22
(7) 機能을 중심으로 한 槪念定立 = 24
제3장 宗敎條項의 確立過程 = 26
I. 17세기 植民地의 敎會와 國家 = 27
(1) 敎會와 國家의 結合 = 27
(2) Massachusetts州의 經驗 = 29
(3) 淸敎徒와 퀘이커교도 = 31
(4) 宗敎的信念의 維持 = 33
II. 獨立革命이전의 敎會와 國家 = 34
(1) Virginia州의 國敎 = 34
(2) 다양한 宗敎的經驗 = 35
III. 聯邦憲法批准과 宗敎條項 = .41
(1) Pinckney의 提案 = 41
(2) 權利章典과 國敎禁止條項 = 42
(3) 聯邦憲法의 批准過程 = 44
IV. 聯邦憲法增補와 宗敎條項 = 48
(1) Madison의 憲法增補勸告 = 48
(2) 憲法增補案의 字句修正 = 49
(3) 妥協에 의한 增補제1조의 採擇 = 51
(4) 增補제1조의 批准 = 52
제4장 國敎禁止條項 = 56
I. 國敎禁止條項의 意義 = 57
(1) 敎會와 國家의 分離論 = 57
(2) 嚴格한 中立性理論 = 60
(3) 原則的自發主義 = 61
(4) 國敎禁止條項과 宗敎의 槪念 = 62
(5) 政敎分離原則의 內容 = 63
II. 宗敎團體에 대한 財政支援 = 64
(1) 3段階基準 = 65
(2) 宗敎團體에 대한 財政的支援 = 70
III. 公立學校와 宗敎敎育 = 78
(1) 公立學校의 宗敎敎育 = 78
(2) 課外時間의 宗敎敎育 = 79
(3) 學校施設物의 平等한 利用 = 80
(4) 祈禱文또는 聖經朗讀 = 83
제5장 宗敎의 自由로운 行使條項 = 87
I. 宗敎의 自由로운 行使의 保障範圍 = 87
(1) 宗敎의 自由로운 行使의 意義 = 87
(2) 宗敎의 槪念과 實質的保障範圍의 關係 = 89
II. 信念과 行爲의 區別 = 90
(1) 信念의 絶對的保障 = .90
(2) 宗敎的信念에 따른 行爲의 保護 = 92
(3) 國旗에 대한 敬禮事件 = 94
III. 2段階利益衡量基準과 統治利益 = 98
(1) 2段階利益衡量의 基準 = 98
(2) 宗敎的信念과 給與條件의 關係 = 100
(3) 重大한 利益의 立證責任 = 101
(4) '信念과 行爲'區別의 否認 = 102
(5) 軍服務規則과 自由로운 行使條項 = 105
IV. 課稅와 自由로운 行使條項 = 107
(1) 優越的統治利益 = 107
(2) 2段階利益衡量의 基準 = 109
(3) 非宗敎的目的을 갖는 稅金의 合憲性 = 110
(4) 利益衡量基準의 排除 = 112
V. 良心的兵役拒否權 = 114
(1) 宗敎的信念에 기초한 兵役拒否 = 114
(2) '同等한 地位'理論 = 115
(3) 信念의 擴大解釋 = 116
(4) 選擇的戰爭拒否 = 117
(5) 眞摯性判斷 = 119
제6장 結論 = 121
參考文獻 = 126
ABSTRACT = 131

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