Polish court finds regulation allowing foreign same-sex marriage registration unconstitutional

Keep our news free from ads and paywalls by making a donation to support our work!

Notes from Poland is run by a small editorial team and is published by an independent, non-profit foundation that is funded through donations from our readers. We cannot do what we do without your support.

Poland’s Constitutional Tribunal (TK) has ruled that a new regulation allowing the registration of foreign same-sex marriage certificates in Poland was partly unconstitutional, saying it went beyond technical administrative changes and conflicted with the constitution’s definition of marriage.

The regulation, introduced by the digital affairs ministry after rulings by the Court of Justice of the European Union (CJEU) and Poland’s Supreme Administrative Court (NSA), was due to take effect on 23 August.

The government, which considers the court to be improperly constituted, says it will not implement the ruling.

Polish law does not allow same-sex couples to marry or enter into civil unions, and a bill that would have granted such limited rights to unmarried couples was recently vetoed by the opposition-backed president.

Until this year, same-sex couples who married abroad were also unable to register their marriage certificates in Poland.

After the CJEU ruled that Poland must recognise such marriages, the digital affairs ministry changed civil status forms. Instead of separate fields for “man” and “woman”, the new templates use “man/woman”, allowing registry offices to record both opposite-sex and same-sex marriages.

Lawmakers from the national-conservative opposition Law and Justice (PiS) party, however, challenged the regulation, arguing that the digital affairs minister had exceeded his powers because the changes were not merely technical but affected the legal definition of marriage.

The tribunal, which is widely seen as being under PiS’s influence, agreed.  The tribunal said the new forms allowed relationships that do not match the constitution’s definition of marriage as a union between a man and a woman to be recorded as marriages.

It said regulations can only implement existing laws and cannot change matters reserved for the constitution or parliament.

The tribunal also said that registering a foreign marriage certificate cannot produce legal effects that conflict with the basic principles of Polish law. It added that changing the constitutional definition of marriage would require amendments to the constitution and related laws.

Some legal experts argue that, while the constitution states that a “marriage, being a union of a man and a woman… shall be placed under the protection and care of the Republic of Poland,” that phrasing does not rule out other legally recognised unions receiving state protection.

Shortly after the ruling, government members said they would not comply with the tribunal’s decision and that the regulation would enter into force as planned.

“The illegal Constitutional Tribunal is once again attempting to obstruct a state that is enforcing the law in force and the rulings of European courts,” digital affairs minister Krzysztof Gawkowski said.

“The transcription of foreign same-sex marriage certificates is and will remain legal,” he said, adding that 184 same-sex couples had so far had their foreign marriage certificates transcribed.

Katarzyna Kotula, the government official responsible for equality issues, said the TK ruling on the issue of transcriptions “has no legal force whatsoever”.

The TK has been at the heart of the rule-of-law crisis that has developed in Poland over the last decade.

In 2015, former PiS-aligned President Andrzej Duda refused to swear in three judges legally chosen by the Sejm. Shortly afterwards, PiS won parliamentary elections and nominated three replacements for those judges, who were sworn in by Duda.

Those three judges and their successors have been deemed illegitimate in a succession of rulings by Polish and European courts. Due to their continued presence on the court, the current government, which replaced PiS in 2023, rejects the TK’s legitimacy and refuses to recognise its rulings.

Under both Święczkowski, a former member of the PiS government, and his predecessor Julia Przyłębska, a close personal associate of PiS leader Jarosław Kaczyński, the TK has been widely seen as issuing rulings aligned with the political interests of PiS.

For a long time, the government refused to appoint new judges to the Constitutional Tribunal as the terms of the previous judges expired, with some vacancies remaining unfilled for over a year.

In recent months, the government has resumed appointing new judges, but President Karol Nawrocki, an ally of PiS, is refusing to administer the oath of office to some of them.

Notes from Poland is run by a small editorial team and published by an independent, non-profit foundation that is funded through donations from our readers. We cannot do what we do without your support.

Main image credit: Masood Aslami/Pexels

Alicja Ptak

Alicja Ptak is deputy editor-in-chief of Notes from Poland and a multimedia journalist. She has written for Clean Energy Wire and The Times, and she hosts her own podcast, The Warsaw Wire, on Poland’s economy and energy sector. She previously worked for Reuters.