The Polish Government is planning to by-pass the Constitution by introducing gender-neutral terms to recognise same-sex marriages held in other European Union member states.
The decision comes in the wake of a ruling by the European Court of Justice (ECJ) in November last year to oblige Poland to accept requests to formally register same-sex unions performed abroad, even if they are not permitted under local laws.
The ECJ’s ruling brought a close to a long-running legal fight involving two Polish men who married legally in Berlin in 2018.
After moving back to Poland, they were refused a request to have their German marriage certificate transcribed into the Polish civil registry because Polish law does not recognise same-sex marriages.
To comply with the ECJ verdict, the centre-left government led by Prime Minister Donald Tusk announced on January 16 that it is making changes in documents such as marriage certificates so they can be used by same-sex couples.
“Current document templates use the terms ‘woman’ and ‘man’, which makes it impossible to correctly enter same-sex marriages into the registry of marriages,” the ministry of digital affairs said on its website.
The changes will include replacing “woman” and “man” with “first spouse” and “second spouse”. Terms such as “father of the first spouse” and “mother of the second spouse” will also be introduced to replace gender-specific terms.
According to the Deputy Prime Minister and digital affairs minister Krzysztof Gawkowski, the alterations will be made without the need for legislation.
“Today I signed the documents that start the process of changing the templates of civil status records, so that the state operates efficiently and equally towards all citizens,” said Gawkowski.
“The ECJ’s judgment is not a matter of ideology, it is a legal obligation that Poland must comply with,” he added.
It had previously been reported that the interior ministry, controlled by close Tusk ally Marcin Kierwiński, preferred a legislative route, but that would almost certainly lead to a presidential veto by the head of state President Karol Nawrocki. The interior ministry will have to sign off on the decision.
The Polish Catholic Church has, together with Poland’s right-wing parties such as the Conservatives (PiS) and Confederation, opposed any change in the current Constitution that defines marriage as a union of man and woman.
Conservative Nawrocki has opposed any proposals to provide legal recognition to same-sex unions, believing such a move was simply a “stalking horse for same sex marriage”.
The Polish Right has also slammed the ECJ verdict as an attack on the rights of EU member states to define their own family law. The ECJ, though, maintains that it is not instructing Poland to change its family legislation but to respect that of other member states.
Poland’s constitutional court on a number of occasions has ruled that, in cases when the Constitution and European legislation are in conflict, it is the Constitution that takes precedence.
The German constitutional court has also ruled in several cases that the country’s Constitution is a higher law than EU legislation.
