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The legal and sociological situation of same-sex marriage in Poland

Sociological background of the same sex couples

According to the latest CBOS survey "Stosunek do osób o orientacji homoseksulanej i związków partnerskich" [The attitude to people with homosexual orientation and partnerships contracts] carried out on November 2-12, 2017, only 16% of respondents consider homosexuality as something usual.

More than half of Poles (55%) treat homosexuality as a deviation, which should be tolerated in social life. 24% of respondents consider homosexuality as something which should not be tolerated, and is not a normal attitude.

In another survey, researchers have shown that the perception of homosexuality is affected by personal encounters with homosexual people. Those who know gay or lesbian persons perceive this sexual orientation as something normal, more often than others. 32% of respondents (7-8% more than in 2010-2013) declared that they know a gay or lesbian person personally.

No tolerance for same-sex marriages is declared twice more often by men than women. On the other hand, the belief that homosexuality is something normal is usually expressed by the inhabitants of the largest cities, who are not religious practicers.

Lifestyle of the same-sex couples is accepted by 32% of respondents. 30% of respondents are in favor of, and 64% of respondents are against, the right of same-sex couples to marry. 84% of the respondents are against the adoption of children by same-sex couples. The latest survey pointed out that in recent years, the scale of acceptance of homosexual marriages and of adoption of children by same-sex couples has slightly increased.

When it comes to legalization of male and female partnerships, approval of such relationship is expressed by 89% of respondents; only 8% of respondents are against it. More than half of Poles (53% of respondents) admitted acceptation of only heterosexual partnerships. A small percentage of respondents (1%) allow only homosexual relationships to be legalized.

The disapproval of the legalization of partnerships is totally favored by respondents of older age (65 years and more). It is also important to note that complete approval of the legalization of such relationships is favored by respondents up to 45 years of age, with higher education, living in large cities, not participating (or not participating systematically) in religious practices.

Legal background

Basic principles of the legal order are not only the constitutional principles, but also the principles governing individual areas of law, including family law (Postanowienie Sądu Najwyższego z dnia 26 lutego 2003 r. sygn. II CK 13/03) [The decision of the Supreme Court of 26 February 2003]. The basic principles of the legal order of the Republic of Poland are set out in the Constitution of the Republic of Poland of 2 April 1997. Art. 18 of the Constitution provides "marriage as a union of a woman and a man [...] is under the protection and care of the Republic of Poland." The concept of marriage is regulated in the Constitution of the Republic of Poland, as well as the Ustawa z dnia 25 lutego 1964 r. - Kodeks rodzinny i opiekuńczy [Law on Family and Guardianship Code of 25 February 1964], Ustawa z dnia 28 listopada 2014 r. Prawo o aktach stanu cywilnego [Law on Civil Status Records of 28 November 2014] and Rozporządzenie Ministra Cyfryzacji z dnia 14 grudnia 2017 r. zmieniające rozporządzenie w sprawie wzorów dokumentów wydawanych z zakresu rejestracji stanu cywilnego [Ordinance of Minister of Digitization of 14 December 2017 on the forms of documents issued in the processing of registration of civil status].

There is no constitutional principle which would make possible to recognize the marriage certificate of two people of the same sex. Article 18 of the Constitution, which explicitly defines marriage as a union of a woman and a man protects, among others, family as founded by the people of different sex. The Constitution remains the supreme law of the Republic of Poland in relation to all international agreements binding the Republic of Poland. The concept of marriage expressed in the Constitution is autonomous and independent from other legal acts, both national and international. In the Polish legal order, the requirement of heterogeneity is without a doubt the essence of marriage.

The provisions of the Law on Family and Guardianship Code clearly indicate that marriage is concluded when a man and a woman enter into a marriage relationship. None of the provisions of this Code provides the possibility of a marriage being concluded by two people of the same sex.

According to Law on Civil Status Records of 28 November 2014 (art. 107 point 3) “the director of the registry office is obligated to refuse to register a marriage certificate if it was contrary to the basic principles of the legal order of the Republic of Poland”.

Anti-discrimination law on same-sex marriage

The Supreme Administrative Court, in its judgment of 17 December 2014 (II OSK 1298/13), states that the model of a marriage between man and women is not a manifestation of discrimination by public authorities. Article 18 of the Constitution of the Republic of Poland indicates, therefore, the protection of marriage as a union of a woman and a man, not stating that other marriage relationships are not subject to such protection. The Polish legal system does not recognize a marriage relationship other than heterosexual.

According to the CJEU jurisprudence, (see the judgments: C-411/10 and C-493/10) any discrimination due to sexual orientation is prohibited. The different treatment based on sexual orientation must be objectively justified and proportionate according to EU law standards.

European overview

The Supreme Administrative Court in Poland does not deny that, currently, there is an accepted tendency in many member States to legally recognize and protect same-sex unions. It does not change the fact that this tendency has not found the possibility of implementation on the basis of Polish law, which is obligatory for both authorities and courts. On the other hand, no act of EU law constitutes the source of such duty. In particular, it needs to be emphasized that ECtHR jurisprudence of the admissibility of marriage to the persons of the same sex was left to be regulated in the national law of the Member States (judgment of 24 June 2010 case of Schalk and Kopf v. Austria).

The ECHR also pointed to the recommendations of the Parliamentary Assembly and the Committee of Ministers of the Council of Europe, encouraging member states of the Council of Europe to introduce legal regulations allowing formal legal recognition of same-sex couples and granting them legal protection. Very often, the applicants are referring, among others, to the judgment of the European Court of Human Rights of 21 July 2015 Oliari and others versus Italy. In this case, the ECHR ruled that, according to its established case law, the permanent cohabitation of two people of the same sex is "family life" within the meaning of art. 8 of the Convention, and, hence, is subject to protection under this article.

Further information:
- PDF document “Court cases on same-sex marriage in Poland”,
- Current debate on same-sex marriage (February 2018).

20 March 2018