Poland Forced to Accept Same-Sex Marriage: Olivier Bault
Poland's liberal government bypassed constitutional safeguards defining marriage as between a man and woman by using administrative decree to recognize same-sex marriages following an EU court ruling.
The move comes just six months after the European Court of Justice issued a controversial ruling ordering all EU member states to recognize and register same-sex marriages performed in other member states, according to Valeurs Actuelles. That November 2025 decision involved two Polish citizens who had married in Germany and demanded recognition from Warsaw authorities.
On March 20, 2026, Poland’s Supreme Administrative Court ordered the Warsaw civil registry to transcribe the marriage. Less than two months later, on May 12, Prime Minister Donald Tusk publicly ordered his Minister of Digitization to urgently prepare a decree amending marriage certificate forms to allow registration of two same-sex individuals as spouses. Minister Gawkowski announced he had signed the draft on May 13. Warsaw completed its first transcription on May 14.
Constitutional Crisis Over Article 18
Article 18 of the Polish Constitution explicitly defines marriage as the union between a woman and a man. Located in Chapter I addressing fundamental state principles, any modification would require constitutional amendment with two-thirds support in the Sejm, Senate majority approval, and the possibility of a referendum. The Tusk government lacks such a majority but has chosen to circumvent the amendment process entirely through ministerial decree.
The Ordo Iuris Institute submitted a legal opinion to the Ministry of Digitization demonstrating that the proposed decree violates not only Article 18 but also the Family and Guardianship Code, the Civil Registry Act, and legislative drafting rules, Valeurs Actuelles reports. Under Polish constitutional law, a decree may only execute existing legislation, not modify it or circumvent constitutional provisions.
Ultra Vires European Court Ruling
The European Court of Justice ruling itself operates beyond EU competency limits. Member states have never transferred authority over matrimonial and family law to the European Union. Poland additionally benefits from Protocol No. 30 annexed to the Lisbon Treaty, which expressly limits the applicability of the Charter of Fundamental Rights against it, yet the CJUE based its November ruling on precisely that Charter.
Poland’s Constitutional Tribunal ruled in 2005, one year after EU accession, that the constitutional status of marriage could not be modified even by ratified international treaty, much less by jurisprudence from a court acting outside its competencies.
Government Shifts Legal Justification
Recognizing the weakness of citing the CJUE decision, the government subsequently substituted the March 20, 2026 Supreme Administrative Court ruling as justification in its explanatory memorandum. That Polish court decision relied on the November CJUE ruling, making the substitution largely cosmetic.
The March 20 administrative court decision itself suffers from dual illegality. It contradicts a December 2019 resolution adopted by seven judges of the same court, which held that Article 18 prohibits transcription of foreign same-sex marriage certificates. Ordinary chambers of Poland’s Supreme Administrative Court are bound by resolutions of its expanded formations, a principle violated in the March ruling.
Constitutional Tribunal Review Underway
The constitutionality of this new judicial interpretation has been under examination by Poland’s Constitutional Tribunal since March 27, 2026, following a challenge by a group of deputies. The Ordo Iuris Institute filed an amicus curiae brief demonstrating that the norm created by the Supreme Administrative Court on March 20 violates multiple constitutional provisions.
The sequence of events reveals what critics characterize as coordination between European judicial authorities and Poland’s liberal government to implement social policy changes that lack democratic legitimacy. Neither the Polish parliament nor the Polish people have approved the redefinition of marriage now being imposed through administrative and judicial means.
The case illustrates growing tensions between national constitutional orders and supranational judicial activism, with Poland’s traditional definition of marriage serving as the latest battleground in Europe’s ongoing culture war.
With information from Valeurs Actuelles
