Polish gay couples seeking recognition for their same-sex marriages have rejoiced after yesterday’s EU court ruling, which states that member states must recognise marriages lawfully concluded in other EU countries. At the same time, there were warnings that EU judges could increase the likelihood of conflict between Brussels and conservative governments.
Judges in Luxembourg stated in a landmark decision that if two EU citizens marry in a country where same-sex marriage is legal, and later move to another member state, that state must recognise their marriage. This is true even if same-sex marriage is not allowed in that country.
The case was brought by a Polish gay couple married in Berlin in 2018.
When they returned to Poland, their marriage was not officially recognised. The Polish authorities refused their request because Polish law does not allow marriage between people of the same sex.
EU court judges said refusing to recognise the marriage is contrary to EU law and infringes not only the freedom to move and reside but also “the fundamental right to respect for private and family life”, thereby rejecting Polish policy, despite Warsaw having passed constitutional amendments defining marriage strictly as a union between a man and a woman.
This gave hope to members of the Polish LGBT community contacted by Brussels Signal.
Jurek, a gay man from Wrocław, said he now appreciates having the option to marry abroad and return to Poland with that marriage recognised, but admitted that it “probably doesn’t change much” in his daily life for now.
Alicja, another queer woman living in Poland, echoed his sentiment. She said that she does not see it as a breakthrough, noting that Poland remains reluctant to act on LGBT issues.
However, she added that “the only way to break the mould is by gradually implementing more and more rights for the LGBT community.”
“There are a lot of young people who enjoy living in Poland, but who consider moving out in order to marry legally, myself included,” she confessed.
If the Polish state were to recognise her marriage, even if conducted abroad, she would have no doubts about coming back to her home country as she considered it to be “a good, prospering, clean and safe country”.
Others however argued the EU was overstepping its mandate and interfering in an area that has traditionally been the preserve of national governments.
Polish legal think-tank Ordo Iuris argued that the EU cannot define what “marriage” or “spouse” means, as family law is a national competence.
They stated that the “[court] judgment is yet another example of overstepping the powers conferred by the EU Treaties and will undoubtedly fuel the creation of new unnecessary conflicts between the EU and the Member States.”
Slovakia’s Conservative government has also passed a constitutional amendment banning same-sex marriages. At the time, the European Commission said it clashed with EU law.
Although judges clarified that this obligation does not require member states to legalise same-sex marriage domestically, governments now have to recognise such a marriage.
They cannot block it or treat same-sex couples differently from opposite-sex couples.
Paweł Knut and Artur Kula, lawyers for the applicants, stated that from now on, “the transcription of same-sex marriage certificates in such cases as our clients’ is mandatory”.
“Therefore, Polish administrative bodies will issue marriage certificates indicating two spouses of the same sex.
“These certificates will be no different from the marriage certificates issued to spouses of different sexes in Poland. The transcription will make it much easier for same-sex spouses to prove their marital status and will also help them to enforce their rights,” they added.
Other LGBT people in Poland welcome the international meddling.
A 27-year-old lesbian living in Wrocław, who wished to remain anonymous, told Brussels Signal that she was glad “international pressure” is being placed on her “homophobic government,” noting that this could be the first “step toward equality for LGBTQ+ citizens.”
ILGA Europe, the LGBTQI+ umbrella organisation uniting more than 700 organisations across Europe and Central Asia, welcomed the decision. It argued that the ruling marks a significant step towards the protection of same-sex couples across the EU, “notably in countries that still do not provide any legal recognition and protection to same-sex couples”.
Speaking to Brussels Signal, ILGA Europe argued that the ruling increases pressure on Poland to provide some form of legal recognition and protection for same-sex couples.
