Top Polish court orders recognition of foreign same-sex marriage

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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 Supreme Administrative Court (NSA) has ordered the registry office to recognise a same-sex marriage conducted by two Polish men in Germany, a groundbreaking ruling in a country that currently does not allow any form of officially recognised same-sex unions.

The NSA’s decision comes in the wake of a recent ruling by the Court of Justice of the European Union (CJEU) on a case brought by the same couple. The CJEU found that Poland’s refusal to recognise such marriages breaches EU law.

The two men – one of them Polish, the other a dual Polish-German national – married in Berlin in 2018 and then sought to have their union recorded in Poland’s civil registry.

They were refused – first by the registry office and then by courts – on the basis that article 18 of Poland’s constitution states that marriage, “being a union of a man and a woman…shall be placed under the protection and care of the Republic of Poland”.

By 2023, the case reached the NSA, Poland’s highest court for administrative issues. However, before making a decision, the NSA asked the CJEU for a ruling on whether EU law prevents one member state from refusing to recognise marriages concluded in another member state.

The EU court ruled last November that Poland must recognise the couple’s marriage, finding that not doing so infringes the freedom to move and reside within the EU as well as the right to respect for private and family life.

The case then returned to the NSA, which on Friday overturned the previous decision of a lower court refusing to recognise the couple’s marriage certificate from Germany. The NSA noted that EU rules guarantee freedom of movement and prohibit discrimination based on gender and sexual orientation.

“Citizens…have the right to expect legal effectiveness and avoid uncertainty regarding their marital status,” said judge Leszek Kirnaszek in the justification for the ruling, quoted by Gazeta Wyborcza.

He added that article 18 of Poland’s constitution, which provides for the protection of marriage, cannot be interpreted as prohibiting the recognition of marriages concluded in other EU countries.

The court instructed the head of the registry office to enter the marriage certificate into the civil registry within 30 days. The judge also said that technical barriers, such as adapting fields in official forms to allow for same-sex couples, must be resolved.

Paweł Knut, a lawyer for the couple, welcomed the ruling. “This is a precedent that will reverse current practice. It is very important that it has been clarified that article 18 cannot block transcription,” he said, quoted by Gazeta Wyborcza.

The ruling was also welcomed by Katarzyna Kotula, the government’s plenipotentiary for equality, who said that it reinforces the fact that “we do not need legislative changes for the registry office to be able to recognise foreign marriage certificates”.

However, Poland’s main opposition party, the national-conservative Law and Justice (PiS), which is ardently opposed to recognition of same-sex relationships, said that it would file a motion to the Constitutional Tribunal (TK) challenging the NSA’s ruling.

“This [ruling] is a very real threat. This is an attack on the family,” said the head of PiS’s parliamentary caucus, Mariusz Błaszczak. “Under [Prime Minister Donald] Tusk’s government, the legalisation of homosexual marriages is taking place, but this is just the first step, because the next one will be the adoption of children.”

The TK is stacked with judges appointed when PiS was in power and is largely seen as being under the influence of the party. Its rulings are ignored by the current government because some of its judges were unlawfully appointed under PiS.

Meanwhile, the government has also been working on implementation of the CJEU’s ruling. In January, the digital affairs ministry announced proposed changes to civil-registry documents, which would use “first spouse” and “second spouse” instead of the current “man” and “woman”.

However, there remain differences between more liberal and conservative elements of the ruling coalition over precisely how the ruling should be implemented, and whether that can be achieved without introducing new legislation.

In the latter case, any attempt to pass a law allowing the recognition of same-sex marriages would almost certainly be vetoed by PiS-aligned conservative President Karol Nawrocki.

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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: Jessica Scalf/Unsplash

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.