Polish Constitutional Court Overturns Recognition of Same-Sex Marriages Concluded Abroad

Path through the courts

In response to the Luxembourg ruling, Poland's Supreme Administrative Court issued an order in March that transposed the ECJ decision into Polish law. Interior Minister Kierwinski then issued a corresponding regulation that all registry offices would have had to implement by the end of August. Members of the right-wing conservative opposition party PiS brought the case against this regulation before the Constitutional Court.

The Constitutional Court in Warsaw is predominantly staffed with judges who were appointed during PiS's time in government and are close to the party. With its current ruling, the court is overruling the highest European authority and deepening the conflict between Warsaw and Brussels over the interpretation of EU law.

Constitutional law versus EU law

The Polish Constitution explicitly defines marriage as a union between a man and a woman. The Constitutional Court based its decision on this provision. At the same time, it rejected the argument that EU law could displace national regulations in this area.

Critics accuse the court of further undermining the independence of the judiciary with its decision. Since the body consists predominantly of judges close to PiS, observers see the ruling less as a legal than as a political turning point.

Possible consequences for those affected and Brussels

The decision is likely to have far-reaching consequences for same-sex couples who move to other EU countries or have married there. They thereby lose any legal protection of their marriage in Poland, for example with regard to residence issues, inheritance rights, or social benefits.

With its ruling, Poland is largely isolated within the European Union. The EU Commission could now initiate infringement proceedings against Warsaw, as a member state is generally obliged to implement ECJ rulings. Polish government representatives have so far dismissed corresponding threats from Brussels.

The PiS had criticized Kierwinski's regulation as a violation of the Polish Constitution. With the ruling, the opposition party achieves a domestic political success that could mobilize its conservative core electorate. At the same time, the decision calls into question the authority of the European Court of Justice and could become a precedent for further conflicts between national constitutional law and EU law.