The EU’s Court of Justice ruled on Tuesday that a member state must recognize a same-sex marriage legally concluded in another EU country, even if its own law does not allow such unions.
Former Constitutional Tribunal president Andrzej Zoll told state news agency PAP the judgment is binding in Poland by virtue of its EU membership.
Asked whether it could become a source of political conflict in Poland, he replied that it could.
Zoll pointed to Article 18 of the Polish constitution, which states that “marriage as a union of a woman and a man, the family, motherhood and parenthood are under the protection and care of the Republic of Poland.” He noted that the provision protects not only marriage but also the family.
In that context he referred to the government’s draft law on partnerships, the bill on the status of the “closest person” in a relationship and on a cohabitation agreement, which is to be submitted to parliament later this year. The expert observed that the draft refers to a “closest person”.
“I believe there is no need to amend the constitution, because one can say that the constitutional concept of family also covers closest persons – it can be extended in this way and, consequently, the constitution remains in order,” Zoll said.
He added that the bill should explicitly state that provisions relating to marriage also apply to the closest persons.
Tomasz Pietrzykowski, a professor of law and vice-rector of the University of Silesia for international and domestic cooperation, agreed that the TSUE ruling should be reflected in the partnerships bill or more broadly in Polish legislation.
“This should be taken into account in that statute or in Polish law in general, and not only on the assumption that any legal decisions in Poland will be based solely on the TSUE ruling itself,” he said.
However, Pietrzykowski cautioned that turning the judgment into statutory provisions would “directly place the matter in a parliamentary dispute and create a risk of a presidential veto”.
In his view, the ruling opens a new front in Poland’s so-called culture war. Regardless of how many such cases arise, each will provide a pretext to conduct “this kind of worldview-legal dispute under the spotlight,” he said.
The expert argued the decision could strengthen anti-EU narratives in a propagandistic way and “rekindle the relationship between the constitution and EU law”. He noted that Article 18 of the constitution is worded in a way that allows different interpretations, which could be used to claim that the TSUE ruling conflicts with the constitution.
The case before the TSUE concerned two Polish citizens who married legally in Berlin in 2018 and later moved to Poland. Polish authorities refused to transcribe their German marriage certificate into the domestic civil registry because national law does not allow same-sex marriages, prompting the Supreme Administrative Court to seek guidance from the EU tribunal.
(jh)
Source: PAP, IAR