Tusk Cannot Override Constitution on Same-Sex Marriage in Poland
Poland's constitutional order faces challenge as two ministers signed a regulation to force registration of foreign same-sex unions, which legal experts say cannot override the constitution.
On May 22, Polish Interior Minister Marcin Kierwiński and Digitalization Minister Krzysztof Gawkowski signed a regulation imposing new official forms on Polish civil registry offices, according to Brussels Signal. The forms were specifically designed to facilitate the transcription of foreign same-sex union certificates into the Polish civil registry. While presented as a routine administrative update, the regulation represents an attempt to circumvent constitutional law through bureaucratic means.
Article 18 of the Polish Constitution explicitly defines marriage as a union between a man and a woman. Both the Civil Registry Act and the Family and Guardianship Code affirm this definition. Legal analysts argue that no ministerial signature can alter constitutional provisions, regardless of how the change is packaged administratively.
Local Governments Divide Over Compliance
The response from municipal authorities has been swift and polarized. Warsaw and Wrocław, cities that have positioned themselves as progressive leaders in Poland’s ongoing culture war, announced they would comply with the regulation. Other municipalities have refused.
The mountain town of Zakopane has made clear it will not transcribe same-sex unions, maintaining they are not marriages under Polish law. Local officials there argue their position represents the correct legal interpretation, not political defiance.
Legal Defense Mobilizes for Registry Officials
The Ordo Iuris legal institute has pledged to provide free legal assistance to every official who faces repercussions for refusing to execute orders to transcribe foreign same-sex union certificates. Attorney Magdalena Majkowska, director of the organization’s Litigation Centre, announced on May 22 that the institute would publish dedicated legal guidance and conduct webinars for local government representatives and registry officials.
The Polish Episcopate has also intervened. The Delegate of the Polish Bishops’ Conference for the Pastoral Care of Local Government Officials and Civil Servants called on registrars and local authorities to refuse compliance with the regulation, stating it conflicts with both constitutional law and the moral duty of those maintaining civil records.
Judicial Activism and European Court Intervention
The May 22 regulation represents the culmination of a process that began with judicial activism in Polish courts and escalated through the Court of Justice of the European Union. The case originated when two Polish male citizens who had contracted a union in Berlin under German law sought to have it entered into Poland’s civil register.
When the case reached Poland’s Supreme Administrative Court (NSA), a three-judge panel submitted a preliminary reference to the CJEU, framing questions in a manner that effectively invited Luxembourg to impose a transcription obligation on Poland. Critics describe this as a deliberate handoff to bypass Polish constitutional protections.
The CJEU obliged in its ruling of November 25, 2025, declaring that EU member states are obliged to recognize same-sex unions contracted in other member states. The decision provided the legal pretext the Tusk government used to introduce the May regulation.
Constitutional Crisis by Administrative Fiat
Legal experts warn that accepting the premise that administrative regulations can effectively amend constitutional provisions sets a dangerous precedent. If ministerial signatures can override Article 18 of the Constitution through procedural maneuvers, the principle extends beyond marriage law to any constitutional provision inconvenient to the government in power.
The standoff between compliant and resistant municipalities is expected to generate legal challenges that could ultimately force Poland’s Constitutional Tribunal to rule definitively on whether the regulation exceeds executive authority. Registry officials caught between contradictory legal obligations now face potential sanctions regardless of which directive they follow.
With information from Brussels Signal
