Constitutional Tribunal: Transcription of Records Formalizing Same-Sex Unions Is Contrary to Poland’s Constitution

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‘Man’ and ‘woman’ in a single field

On Tuesday, July 28, Poland’s Constitutional Tribunal delivered its judgment in case no. U 2/26, concerning the regulation of the Minister of Digital Affairs of May 22, 2026, amending the regulation on the templates of documents issued in the field of civil status registration (Journal of Laws 2026, item 667). That regulation altered the templates of marriage certificates, replacing the separate fields “Man” and “Woman” with two fields reading “Man/Woman,” and thereby made it possible to transcribe into the Polish legal order foreign civil status records attesting to the formalization abroad of same-sex unions. At the same time, it left unchanged the field concerning “children born of this marriage,” which could in the future lead to extra-legal attempts to recognize, on that basis, the adoption of children by same-sex couples. The Tribunal held the regulation incompatible with Poland’s Constitution insofar as it allows the formalization, in Polish civil status records, of a union other than a union of a woman and a man. The presiding judge, President of the Constitutional Tribunal Bogdan Święczkowski, emphasized that — in accordance with the Constitutional Tribunal’s judgment of September 23, 2025 (ref. P 3/25) — “a judgment delivered by the Tribunal and announced in the courtroom, even if it has not been formally promulgated in the Official Journal of the Republic of Poland, produces legal effects and must be unconditionally applied by public authorities.”

The origins of the case before the Tribunal

The case was initiated by an application filed on June 3, 2026, by a group of Law and Justice (PiS) deputies represented by Marcin Warchoł. The applicants argued that “the foundation of the existing social order in the Republic of Poland on monogamous marriage, being a union of a woman and a man, has the status of a constitutional principle, which unequivocally indicates that the ordinary legislator cannot enact regulations that would conflict with Article 18 of the Constitution of the Republic of Poland. It should be recalled that Article 18 of the Constitution of the Republic of Poland formulates the constitutional principle of surrounding marriage with protection and care, which in itself constitutes sufficient justification for the obligation to treat marriage and spouses separately and preferentially in relation to all other (even potential) alternative unions and the persons participating in them.” Referring to the judgment of the Court of Justice of the European Union (CJEU) of November 25, 2025 (ref. C-713/23) and the judgment of the Supreme Administrative Court (NSA) of March 20, 2026 (ref. II OSK 216/21), the applicants stressed that “the status of marriage as a union of a woman and a man, as determined by Article 18 of the Constitution of the Republic of Poland, is an element of the constitutional identity of the Republic of Poland par excellence. It is therefore inadmissible, in light of Article 90 of the Constitution of the Republic of Poland, to transfer to an international organization or international body the power to define or recognize what is and is not a marriage. […] EU law cannot determine at all which union may or must be treated as a marriage in the Polish legal order.”

Ordo Iuris’s involvement in the legislative process

As early as January 2026, the Ordo Iuris Institute took part in the public consultations on the draft regulation (list number: MC 37), submitting to the Ministry of Digital Affairs its opinion, in which it pointed out that the draft violates Article 18 of the Constitution of the Republic of Poland — under which marriage is always a union of a woman and a man — as well as Article 1 § 1 of the Family and Guardianship Code, under which a marriage may be entered into only by a man and a woman who are simultaneously present. The opinion recalled that, both for the Constitutional Commission of the National Assembly, which drafted Article 18 of the basic law, and for the Constitutional Tribunal, which has ruled on this matter many times over the past 30 years, it was and remains obvious that this provision precludes the institutionalization of any form of cohabitation alternative to marriage, which by its nature is a union of a woman and a man.

In March 2026, journalists at TVN24 published an article titled “The Inside Story of the Government’s Dispute over the Transcription of Marriages. The Interior Ministry’s Position Aligns with Ordo Iuris”, in which they reported that arguments similar to those formulated by Ordo Iuris were adopted not only by the Ministry of National Defense and the Ministry of Infrastructure (associated with the Polish People’s Party, PSL, i.e., the centrist agrarian party that is part of Donald Tusk’s governing coalition), but even by the Ministry of the Interior and Administration (associated with the Civic Coalition, the party of Prime Minister Tusk). Ultimately, however, in May the Ministry of Digital Affairs published a second version of the draft and announced renewed public consultations — this time lasting only four days — along with review by the individual ministries, the results of which were never made available to the public. The Ordo Iuris Institute nonetheless managed to submit a second opinion, in which it once again stressed the draft’s incompatibility with the Constitution and the Family and Guardianship Code, suggesting that, should the draft be adopted, the bodies entitled under Article 191(1)(1) of the Constitution of the Republic of Poland (including a group of 50 deputies or 30 senators) should seek to file, under Article 188(3) of the Constitution of the Republic of Poland, an application for a declaration that the regulation is incompatible with the Constitution of the Republic of Poland and the Family and Guardianship Code. And so it happened.

On July 23, the Ordo Iuris Institute submitted its own amicus curiae (“friend of the court”) opinion to the Constitutional Tribunal, in which it stated that “the only normative novelty that the challenged regulation introduces into the Polish legal order comes down to adapting Polish civil status records to the registration of ‘marriages’ between persons of the same sex. Its elimination from the legal order is therefore desirable and will not, moreover, create any legal gap, because the heads of civil registry offices will be obliged to apply the previously binding templates, which are fully consistent with the Constitution of the Republic of Poland.” At the very start of today’s hearing, the President of the Constitutional Tribunal, Bogdan Święczkowski, confirmed that the Ordo Iuris submission had been delivered and added to the case file, enabling both the judges and the participants to review it.

The practical effects of the judgment

The Constitutional Tribunal’s judgment confirms the merit of the “Rebellion for the Constitution” campaign launched by Ordo Iuris on June 11, 2026. At that time, the Ordo Iuris Institute pledged free legal assistance to any official who faces consequences for refusing to carry out an unlawful transcription. It also published a guide for local governments and Civil Registry Offices setting out the proper course of action. Thanks to the Constitutional Tribunal’s judgment, from now on every employee of a Civil Registry Office may, invoking that judgment, refuse to recognize a same-sex union as a purported “marriage” if the order to do so was issued on the basis of the unconstitutional regulation. The right of refusal will also extend to other persons who might be given such an unlawful order. On July 8, the Ordo Iuris Institute disclosed documents confirming that the Ministry of Family, Labor and Social Policy is systematically pressuring social-security institutions — the Social Insurance Institution (ZUS), the Agricultural Social Insurance Fund (KRUS), the Pension Board of the Ministry of the Interior and Administration (ZER MSWiA), the Military Pension Office, and the Pension Office of the Prison Service — to grant spousal benefits to persons who have entered into formalized same-sex unions abroad. From now on, however, employees of pension authorities (like, for example, employees of the National Health Fund (NFZ) and employers, to the extent they were required to unlawfully add same-sex partners to health insurance) will be able to invoke the Constitutional Tribunal’s judgment as the basis for their refusal.

“This regulation, following the failure of the ‘closest person status’ act, was yet another attempt to unlawfully impose on Polish citizens an obligation to recognize same-sex cohabiting relationships as purported ‘marriages.’ From now on, anyone, invoking the Constitutional Tribunal’s judgment, may refuse to carry out unconstitutional orders of this kind,” notes Nikodem Bernaciak, an attorney and senior analyst at the Ordo Iuris Institute.

See also:

• President Nawrocki Vetoes Act on Same-Sex Partnerships in Poland
• Abortion and Transcription of Same-Sex Unions – Candidate for Poland’s Commissioner for Human Rights Chooses European Court Rulings over the Constitution
• Prime Minister Fico Pushes Back Against the European Union’s Institutions. Slovakia Will Not Recognize Foreign “Same-Sex Marriages”
• Act on Same-Sex Civil Partnerships Adopted by the Polish Sejm: Time for President Nawrocki’s Veto
• Poland’s Constitution Does Not Allow the Transcription of Foreign Same-Sex Marriage Certificates, Says Ordo Iuris Opinion for the Constitutional Tribunal

Source of cover photo: iStock