Polish Court’s Judgment on Same-Sex Marriage Record—An Unconstitutional Capitulation to EU Ideologues

Judgment of the Supreme Administrative Court in connection with the judgment of the Court of Justice of the European Union

On Friday, March 20, Poland’s Supreme Administrative Court issued a judgment in case no. II OSK 216/21, in which it held that the Civil Registry Office of the Warsaw Capital City is subject to the obligation to transcribe foreign civil status documents concerning same-sex unions referred to as “marriages” in another Member State of the European Union. The full written statement of reasons for the judgment has not yet been published, but it is known that it refers to the judgment of the Court of Justice of the European Union of November 25, 2025 (case no. C-713/23), which then held that “where a Member State chooses, within that margin of discretion, to provide, in its national law, for a single procedure for recognising marriages concluded by Union citizens in the exercise of their freedom to move and reside within another Member State, such as, in the present case, the transcription of the marriage certificate in the civil register, that Member State is required to apply that procedure without distinction to marriages between persons of the same sex and to those between persons of the opposite sex.” The Polish Supreme Administrative Court (NSA), in its judgment, set a 30-day deadline for its implementation. However, this is not possible without amending the regulation on the templates for civil status documents.

Already in December 2025, the Ordo Iuris Institute subjected this CJEU judgment to a critical analysis, pointing out that ” there are serious arguments for refusing to apply EU law as interpreted by the CJEU when that interpretation amounts to a breach of the principle of conferral (ultra vires).” The CJEU judgment runs counter to the uniform understanding in the case law of the constitutional guarantee of marriage as a union between a woman and a man, and also constitutes an unwarranted interference in a matter that the Polish Constitutional Tribunal, as early as in its accession judgment K 18/04, explicitly identified as belonging to the inviolable essence of sovereignty. Irrespective of the foregoing, it should be emphasized that the proceedings before the CJEU were the result of unwarranted judicial activism aimed at circumventing the legislative procedure and the majorities provided for in the Constitution. From the wording of the question posed by the Supreme Administrative Court, it appeared that it expected the CJEU to depart from its existing case law.

Meanwhile, however, on January 16, 2026, a draft regulation was published on the website of the Government Legislation Center concerning the amendment of the regulation on the templates of documents issued within the scope of civil status registration (list number: MC 37), prepared by the Ministry of Digital Affairs, which would replace in all marriage certificates in Poland the words ‘man’ and ‘woman’ with the words ‘first spouse’ and ‘second spouse’. In an official statement, Poland’s Ministry of Digital Affairs claims that the project is related to the CJEU ruling.

Marriage is a union between a woman and a man—that is what the Polish Constitution states.

The Ordo Iuris Institute, in its analysis, submitted during the public consultation process for the draft regulation, pointed out that the principle of the heterosexual nature of marriage was already expressed during the work of the Constitutional Commission of the National Assembly on Article 18 of the Constitution of the Republic of Poland. The clear intent of its drafters was to prevent the institutionalization of any form of cohabitation alternative to marriage, which by its nature is a union between a woman and a man. On February 27, 1997, during a plenary session of the National Assembly, that is, the gathering of both houses of Parliament, Senator Alicja Grześkowiak, who later served as Speaker of the Senate from 1997 to 2001, explained the necessity of “explicitly stipulating that marriage is a union of a woman and a man, and only as such a union does it become a constitutional value. This would prevent introducing into law, through the back door or outright, the possibility of entering into unions between people who have natural impediments to marrying, namely two women or two men.” In Ordo Iuris’ assessment, both today’s Supreme Administrative Court (NSA) ruling and the draft regulation are precisely such ‘loopholes’.

The Institute’s analysis also noted that the constitutional principle of the heterosexuality of marriage, including with respect to the transcription of foreign civil status documents, has been mentioned in the extensive case law of the Constitutional Tribunal, the Supreme Court, and the Supreme Administrative Court. These include, among others: order of the Supreme Court of July 7, 2004, judgment of the Constitutional Tribunal of May 11, 2005, judgment of the Constitutional Tribunal of November 9, 2010, judgment of the Constitutional Tribunal of April 12, 2011, judgment of the Supreme Administrative Court of October 25, 2016. and judgment of the Supreme Administrative Court of February 28, 2018.

A transcription resulting in a same-sex couple being designated as a so-called “marriage” would also be contrary to Article 1 § 1 of the Family and Guardianship Code, which provides that a marriage may be entered into only by a man and a woman (simultaneously present). By an order dated July 1, 2021, Poland’s Constitutional Tribunal held that “there is no doubt that the ratio legis of Article 1 § 1 of the Family and Guardianship Code was the unequivocal determination that marriage may be contracted only between persons of the opposite sex.” […] If the legislature were to enact a law permitting same-sex marriage, it would be contrary to Article 18 of the Constitution, which defines marriage as a union between a woman and a man”. For this reason, Poland’s Family and Guardianship Code uses the term “husband” 28 times and the word “wife” 2 times. Therefore the Polish Supreme Administrative Court by judgment of February 25, 2020 held that “when determining the fundamental principles of the legal order of the Republic of Poland—for the purposes of the public policy clause—Article 1 of the Family and Guardianship Code and, in particular, Article 18 of the Constitution of the Republic of Poland must be taken into account; these provisions define marriage as a union between a woman and a man, and thus give rise to the principle that in Poland only a heterosexual union is to be treated as a marriage. Thus, entering a foreign document into the Polish civil status registers that contains content contrary to the existing legal order would be incompatible with Article 1 § 1 of the Family and Guardianship Code and Article 18 of the Constitution of the Republic of Poland.”

Opposition politicians’ reaction

Immediately after the country’s Supreme Administrative Court announced its ruling, Law and Justice lawmakers announced that they would file a limited-scope motion with the Constitutional Tribunal seeking a declaration that the legal basis of today’s ruling is unconstitutional. The author of the motion, Marcin Warchoł, Ph.D., said that “the administrative court has given these provisions an unlawful, unconstitutional meaning, and we will challenge that interpretation of the norm before the Constitutional Tribunal.” This is an important step, because under Article 191(1)(1) of the Constitution of the Republic of Poland only the President of the Republic of Poland, the Speaker of the Sejm, the Speaker of the Senate, the Prime Minister, 50 Members of the Sejm, 30 Senators, the First President of the Supreme Court, the President of the Supreme Administrative Court, the Prosecutor General, the President of the Supreme Audit Office, and the Commissioner for Human Rights may submit such a motion; therefore. Among the opposition parties, only the PiS parliamentary group has a sufficient number of Mps (which does not preclude a similar motion being filed, for example, by the President of the Republic of Poland, Karol Nawrocki). Attorney Bartosz Lewandowski, Ph.D., also emphasized that “there is no such ruling of the Supreme Administrative Court (NSA), because the panel included a judge whom you referred to as a ‘neo-judge’, or possibly ‘an impostor in a robe’.” He was referring to the questioning by the ruling coalition of the status of judges appointed under the previous government.

“Judges of the Supreme Administrative Court ruled today in complete disregard of fundamental constitutional and statutory norms, for which they should face disciplinary action. The ease with which the CJEU apparatus breaks the consciences of Polish judges is proof of the validity of the Ordo Iuris Institute’s theses expressed in 2025 in the report ‘Great Reset’—a proposal for a profound, sovereignty-based reform of the EU that also includes stripping the CJEU of its quasi-legislative powers,” notes Attorney Nikodem Bernaciak, senior analyst at the Ordo Iuris Institute for Legal Culture.

See also:

• The Great Reset—an urgent need for deep reform of the EU