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The Polish government’s has issued a regulation that amends the marriage certificate templates to allow the Polish civil registry to list two people of the same sex as spouses.
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Before the regulation was issued, the Ordo Iuris Institute presented the Polish government with a legal opinion criticizing the latest version of the draft resolution, in which the designations “first spouse” and “second spouse” had been dropped, and instead two identical fields, “Man/Woman** — select as appropriate,” had been introduced, which allows for a “Man/Man” or “Woman/Woman” pairing. A similar structure was used in the parents’ sections.
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In its opinion, the Ordo Iuris Institute argues that the regulation drafted by the Ministry of Digital Affairs is inconsistent with Article 18 of the Constitution of the Republic of Poland, the Family and Guardianship Code, the Act on Civil Status Records, and the Principles of Legislative Technique.
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In the explanatory memorandum for the latest version of the draft, the proponent abandoned reliance on the Court of Justice of the European Union’s judgment of November 25, 2025, and cited, as their sole basis, the Polish Supreme Administrative Court’s judgment of March 20, 2026, that is, a ruling issued in breach of the resolution of seven judges of the Supreme Administrative Court of December 2, 2019. The constitutionality of the March 20 judgment is currently the subject of proceedings before the Constitutional Tribunal.
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Poland’s Ministry of Digital Affairs should have discontinued further work on the draft. The new regulation will most likely be challenged before the Constitutional Tribunal pursuant to Article 188(3) of the Constitution of the Republic of Poland.
On May 13, the Ministry of Digital Affairs sent back for another round of public consultations a draft regulation amending the regulation on the templates of documents issued in the field of civil status registration (list number: MC 37). Within the deadline set by the Ministry—by May 18, 2026, at 12:00 p.m.—the Ordo Iuris Institute, as one of the recipients of the letter, submitted a detailed legal opinion prepared by Attorneys Nikodem Bernaciak and Rafał Dorosiński. The said regulation was eventually adopted by the government of Donald Tusk on May 22 (??https://www.gov.pl/web/cyfryzacja/transkrypcja-zagranicznych-aktow-malzenstwa–rowne-traktowanie-dla-wszystkich-obywateli??).
A new form with the same goal as before
In the original version of the draft regulation from January 2026, the authors intended to replace the words “man” and “woman” in the marriage certificate with the terms “spouse one” and “spouse two.” In the current version—after a wave of criticism—the authors of the draft introduced the terms “Man/Woman**” (with an asterisk and the instruction “select as appropriate,”) while at the same time changing their logic: instead of separately designating one spouse as a man and the other as a woman, the draft introduces two identical fields in which one can independently choose “Man” or “Woman.” The new form thus permits both a constitutionally compliant pairing and pairings that are constitutionally and statutorily impermissible—”Man/Man” and “Woman/Woman.” The same solution has been applied in the fields concerning the spouses’ parents (“Mother of the man/woman**,,” “Father of the man/woman**”), which, when the draft is read literally, opens the way to recording two women or two men in the Polish civil registry as the parents of the person entering into marriage.
Inconsistency with Poland’s Constitution and Family Code
The Ordo Iuris opinion identified four areas of the regulation’s non-compliance. First, under Article 18 of the Constitution of the Republic of Poland, which provides that “Marriage, being a union of a man and a woman, as well as the family, motherhood and parenthood, shall be placed under the protection and care of the Republic of Poland.” Secondly, under Articles 1 § 1 and 2 of the Family and Guardianship Code: since the statute reserves marriage exclusively for “a man and a woman present at the same time,” and drawing up a record contrary to this norm opens the way to an action for a declaration of the nonexistence of a marriage, any record concerning two persons of the same sex would be continually exposed to such an action, which would lead to drastic uncertainty in legal acts. Thirdly, with the Civil Status Records Act Fourthly, from § 9 and § 10 of the Rules of Legislative Drafting, which require the use of the terms employed in the basic act and the uniform designation of the same concepts.
Change to the reasoning: the CJEU judgment has disappeared
In January 2026, the authors of the regulation relied, according to a public communication, on the CJEU judgment of 25 November 2025 in case C‑713/23 Cupriak-Trojan. In the May 13, 2026 version, the explanatory memorandum to the draft no longer mentioned that judgment, relying solely on the Supreme Administrative Court (NSA) ruling of March 20, 2026 (II OSK 216/21) and subsequent judgments of the Voivodeship Administrative Courts in Olsztyn (March 3, 2026, II SA/Ol 248/24) and Gorzów Wielkopolski (April 15, 2026, II SA/Go 673/25). As Ordo Iuris emphasizes in its legal opinion, this change in the legislative concept itself confirms the government’s awareness that the CJEU judgment—as it was rendered beyond the scope of its competence—cannot serve as a binding basis for amending national law.
Reliance on the Supreme Administrative Court (NSA) judgment of March 20, 2026, also does not cure the defects of the regulation. This judgment was handed down in contravention of the resolution of a seven-judge panel of the Supreme Administrative Court dated December 2, 2019 (II OPS 1/19), which, under Article 269 of the Law on Proceedings before Administrative Courts, is binding on regular panels of the Supreme Administrative Court. Moreover, the constitutionality of the interpretation of Article 104(5) and Article 107(3) of the Law on Civil Status Records adopted by the Supreme Administrative Court is currently the subject of proceedings before the Constitutional Tribunal in case K 10/26, in which Ordo Iuris submitted an amicus curiae brief.
An implementing act may not amend a statute
The legal opinion delivered by Ordo Iuris points out a fundamental violation of the hierarchy of sources of law. Pursuant to Article 92(1) of the Constitution of the Republic of Poland, regulations are issued on the basis of specific authorization contained in a statute and for the purpose of implementing the statute—not for the purpose of circumventing or amending it. An attempt to correct case law that contradicts the statute’s plain wording by amending an implementing regulation constitutes a gross violation of Articles 87 and 92 of the Constitution of the Republic of Poland.
The regulation should not have been adopted
In the conclusion of its opinion, Ordo Iuris calls on the Ministry of Digital Affairs to halt any further processing of the draft regulation. Since it was eventually adopted, the entities entitled under Article 191(1)(1) of the Constitution of the Republic of Poland (in particular, the President of the Republic of Poland Karol Nawrocki, the First President of the Supreme Court, a group of 50 Members of the Sejm or 30 senators) should, pursuant to Article 188(3) of the Constitution of the Republic of Poland, challenge the regulation before the Constitutional Tribunal. A parallel ruling by the Constitutional Tribunal (TK) in case K 10/26 could, however, remove the very basis of the regulation’s justification—if the decision is favorable to the applicants, the proposed regulation will lose any statutory basis, even in its authors’ own narrative.
“At the very beginning, the explanatory memorandum to the draft regulation stated that the regulation was intended to adapt, among other things, the form of the marriage certificate “to the legal framework taking shape as a result of the administrative courts’ case law concerning the transcription of foreign civil status records. This opening sentence alone exposes the flaws of the regulation’s entire legislative framework. The legal framework in Poland is shaped by the legislature, not by the administrative courts. The latter apply the law, and their judgments are binding only in individual cases. A regulation, pursuant to Article 92 of the Constitution of the Republic of Poland, serves to implement a statute, not to correct it. Meanwhile, the regulation’s authors have reversed this hierarchy: through subordinate legislation, they seek to modify the scope of the institution of marriage as defined in the Constitution and in the Family and Guardianship Code,” concludes Atty. Rafał Dorosiński, member of the Board of the Ordo Iuris Institute.
Source of cover photo: iStock
