Poland’s highest administrative court has issued a ruling on same-sex marriage which the gay couple who brought the case say shows that such unions are not barred under the constitution. However, a conservative legal group has dismissed that claim as “fake news”.
Article 18 of the constitution states that “marriage as a union of a man and a woman, family, motherhood and parenthood are under the protection and care of the Republic of Poland”.
Opponents of same-sex marriage have argued that this means marriage is defined as being exclusively between a man and a woman. However, many legal experts say that it only puts such marriages under the protection and care of the state, without prohibiting other types of unions.
That latter position now appears to have been endorsed by the Supreme Administrative Court (NSA) in a ruling made earlier this year but only publicised now.
The case was brought by Jakub Kwieciński and Dawid Mycek, popular vloggers who had been fighting for five years for the Polish state to recognise their marriage, which was concluded in Portugal.
The NSA rejected their appeal, and instead upheld a decision by a lower court, which had in turn upheld a decision of the governor of Mazovia province not to recognise their marriage. However, the NSA also appeared to leave the door open for such marriages to in future be recognised.
“Article 18 of the constitution cannot in itself constitute an obstacle to transcribing a foreign marriage certificate if the institution of marriage as a union of persons of the same sex was provided for in the domestic [legal] order,” wrote the NSA in its justification for the ruling.
“The provision of the constitution in question does not prohibit the statutory regulation of same-sex unions,” said the court, adding that it was simply the case that “at present the Polish legislature has not decided to introduce such solutions” into Polish law.
In a post revealing the justification today, Kwieciński and Mycek called it a “historical ruling” that “debunks the myth that has been repeated by the right for years”.
“If you ever hear [justice minister Zbigniew] Ziobro or [education minister Przemysław] Czarnek….saying that our constitution prohibits same-sex marriage, know that they are lying,” they added. “As of today we have it in writing.”
However, their claim was rejected by Ordo Iuris, an ultraconservative legal organisation that has long campaigned against what it and the government calls “LGBT ideology”.
“More fake news,” tweeted Ordo Iuris. “The NSA dismissed [Kwieciński and Mycek’s] appeal…It recognised the legitimacy of refusing to enter a same-sex marriage certificate drawn up abroad into the [Polish state] register of marriages.”
The organisation pointed to another section of the ruling stating that article 18 of the constitution “does not prejudge the impossibility of legally regulating same-sex relationships; however, it emphasises the special protection of marriage, but as a relationship between a woman and a man”.
This would suggest that, while some forms of same-sex relationships could be legally regulated, marriage remains exclusively heterosexual. Ordo Iuris says that previous NSA rulings have also supported this principle, and accuses Kwieciński and Mycek of quoting “a sentence of the justification out of context”.
Wyrwane z kontekstu zdanie uzasadnienia nie zmieni faktu, że transkrypcja zagranicznego aktu dot. związku 2 mężczyzn została uznana za niedopuszczalną w 🇵🇱
🇵🇱 otacza ochroną małżeństwo, jako związek kobiety i mężczyzny
Nic się nie zmienia. Co więcej, ta zasada ulega wzmocnieniu
— Instytut Ordo Iuris (@OrdoIuris) November 3, 2022
LGBT rights have become a hotly contested issue in Poland in recent years. While opinion polls show the public becoming more receptive to granting greater rights – including a growing majority in favour of allowing same-sex civic partnerships or marriages – that has been met by a conservative backlash.
The ruling national-conservative Law and Justice (PiS), with the support of parts of the Catholic church, has called for Poland to be defended from “LGBT ideology”, which it sees as a dangerous foreign import that undermines traditional values and even threatens the existence of the Polish state.
As a result of such rhetoric, and the continued limits on LGBT rights in Poland, the country has for the last three years been ranked as the worst country in the European Union for LBGT people by ILGA-Europe, a Brussels-based NGO.
In 2019, the NSA ruled that a same-sex couple could not transcribe their UK-born child’s birth certificate into the Polish civil registry. In 2021, it ruled that a transgender person who underwent a sex reassignment procedure abroad has the right to receive a Polish passport recognising her new legal identity
Main image credit: Miłość Nie Wyklucza/Flickr (under CC-BY-ND 2.0)
Alicja Ptak is senior editor at Notes from Poland and a multimedia journalist. She previously worked for Reuters.
