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Trends in Court Decisions on ‘the Separation of Church and State’ in the United States and South Korea

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2026, 14(3), pp.437~467
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : August 1, 2026
  • Accepted : August 22, 2026
  • Published : August 31, 2026

Jonghaeng Yoon 1

1충남대학교

Accredited

ABSTRACT

Since the seventeenth and eighteenth centuries in Europe, the doctrine of the separation of church and state has played a significant role in shaping the development of constitutional principles and judicial precedents. In the United States, this doctrine has been interpreted as requiring the government to refrain from excessive involvement in religious affairs while safeguarding the free exercise of religion. Accordingly, governmental ceremonies may not be conducted according to the rites of a particular religion, religious oaths may not be imposed as a prerequisite for public office, and religious instruction in public schools has been deemed constitutionally impermissible. The recent controversy concerning a public high school soccer coach who prayed with several students after a game illustrates that the relationship between religious freedom and the separation of church and state remains an area of continuing constitutional tension. Although the United States adopts a stricter interpretation of the separation of church and state than countries such as Germany and France, it may nonetheless be characterized as maintaining a relatively religion-friendly constitutional framework. Religious organizations generally receive tax benefits comparable to those available to secular charitable organizations and educational institutions. Moreover, the United States has recognized that public tuition assistance programs available to students attending nonreligious private schools should also extend to students attending private religious schools. In South Korea, courts have addressed the constitutional issues arising from private religious high schools in which students are assigned through compulsory lottery-based placement systems. The courts have held that mandatory participation in religious education or religious ceremonies may violate the constitutional principle of the separation of church and state. At the same time, when conflicts arise between the religious freedom and institutional autonomy of religious schools and the religious freedom of students, Korean courts have applied the balancing of interests approach and the principle of harmonious interpretation of constitutional rights. Accordingly, students should receive sufficient information regarding the religious policies of schools before assignment, and the placement process should reflect students’ preferences to the greatest extent possible. Furthermore, institutional mechanisms should be established to allow students who object to attendance at an assigned religious school on religious grounds to transfer to alternative schools. By contrast, requiring attendance at chapel services as a graduation requirement at private religious universities does not necessarily constitute an unconstitutional infringement of students’ religious freedom. In this respect, the Supreme Court’s emphasis on the autonomy and academic freedom of Christian universities is persuasive. The Court’s interpretation that religious educational institutions must comply with statutory requirements for educational authorization is likewise appropriate. Nevertheless, judicial review should carefully examine whether the educational activities of a religious institution are predominantly religious in nature, thereby preventing unnecessary interference with religious freedom and institutional autonomy. With respect to labor and taxation issues involving religious organizations, Korean courts consider various factors in determining whether individuals engaged by religious organizations qualify as employees under the Labor Standards Act, including the payment of wages, withholding of income tax at source, and enrollment in the National Pension Scheme and the National Health Insurance program. Religious organizations are also subject to various tax exemptions or reductions. However, legislative reform remains necessary to establish clearer definitions of religious organizations and more transparent criteria for determining their public-interest status. Finally, because an unjustified denial of an application to establish a religious corporation may infringe upon the freedom to establish religious organizations, such administrative decisions require careful judicial review. The Supreme Court’s position that judicial intervention in the internal affairs of religious organizations should be exercised with restraint in order to protect religious freedom and organizational autonomy is appropriate. Similarly, limiting the authority of court-appointed temporary directors to matters strictly necessary for maintaining organizational stability, as well as adopting a cautious approach toward judicial review of internal disputes within religious organizations, appropriately reflects the constitutional value of religious autonomy.

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