Poland’s Constitution Does Not Allow the Transcription of Foreign Same-Sex Marriage Certificates, Says Ordo Iuris Opinion for the Constitutional Tribunal

New interpretation of the provisions of the Law on Civil Status Records

The Ordo Iuris Institute submitted an amicus brief to Poland’s Constitutional Tribunal in case no. K 10/26. The case was initiated by a group of deputies to the Sejm of the Republic of Poland who petitioned the Constitutional Tribunal to issue an interpretive judgment concerning two provisions of the Act of November 28, 2014, on Civil Status Records (“Law on Civil Status Records”) currently in force. These are the provisions governing the so-called mandatory transcription (Article 104(5) of the PASC) and the public policy clause precluding transcription (Article 107(3) of the PASC). This is related to the March 20 ruling of the Supreme Administrative Court, which ordered the Warsaw Civil Registry Office to transcribe the records of so-called same-sex marriages entered into in another country.

The aforementioned provisions have remained unchanged since they entered into force (i.e., on March 1, 2015) and for years were uniformly interpreted by the courts as prohibiting the transcription of a ‘marriage’ certificate for a marriage contracted between persons of the same sex, due, inter alia, to the wording of Article 18 of the Constitution of the Republic of Poland. This case law was consistent with the judgments of the Constitutional Tribunal and the Supreme Court concerning the content and meaning of Article 18 of the Constitution of the Republic of Poland.

Despite this, Poland’s Supreme Administrative Court (NSA) presented a new interpretation, completely different, indeed entirely contrary to the wording of those very provisions. According to it, the transcription of the record of a “marriage” contracted abroad between persons of the same sex is possible, and even necessary.

It is precisely this new legal norm, created by the judicial authority that is the Supreme Administrative Court and ascribed by that Court to Articles 104(5) and 107(3) of the Law on Civil Status Records, that was challenged in an application filed by a group of Members of the Sejm of the Republic of Poland on March 27, 2026.

The practical import of the case pending before the Constitutional Tribunal boils down to determining whether the heads of civil registry offices may transcribe same-sex “marriages” entered into abroad and, if a head of a civil registry office refuses, whether a court can order them to carry out such a transcription.

In the Ordo Iuris Institute’s assessment, the answer to both questions is negative, and the opposing position is (in light of the cited provisions and Article 18 of the Constitution of the Republic of Poland, as well as in light of the explicitly expressed intentions of the Constitution’s framers and settled case law) contrary to the Constitution.

Draft of a new regulation amending the templates for marriage certificates

Resolving the above issue is all the more urgent because the Minister of Digital Affairs, Krzysztof Gawkowski, announced on May 13, in a statement posted on social media, the signing of a new draft regulation amending the templates for marriage certificates. As the minister stated, “the transcription of same-sex marriages entered into abroad will be possible at any Civil Registry Office in Poland. The marriage certificate will include a clear description indicating whether it is a marriage between a woman and a man, a woman and a woman, or a man and a man.” The Ordo Iuris Institute wrote about an earlier version of the draft regulation prepared by the Ministry of Digital Affairs in a separate analysis (in Polish), which was submitted to the ministry.

This is not unrelated to the statement by Prime Minister Donald Tusk, who on May 12, before a meeting of the Council of Ministers, announced: “I direct [Digital Affairs] Minister Gawkowski and [Interior] Minister Kierwiński to urgently and as quickly as possible finalize the wording of the regulation, and I call on parliamentarians to work as quickly as possible wherever legislation is necessary to set out the consequences of this decision.”

Judgments of the CJEU and the Supreme Administrative Court

The Prime Minister cited Poland’s Supreme Administrative Court (NSA) judgment of March 20, 2026 (case no. II OSK 216/21), in which the court ordered the Civil Registry Office of the Capital City of Warsaw to enter into the Polish register a foreign “marriage” certificate of two men. At the same time, the Polish NSA set a 30-day deadline to implement the judgment, which is, however, practically impossible without first amending the regulation that specifies the templates for civil status documents (the current templates have fields for “husband” and “wife”, rather than the neutral “spouse one” and “spouse two”).

The NSA, in turn, based its ruling on the judgment of the Court of Justice of the EU dated November 25, 2025, in case C‑713/23, in which the CJEU held that if a Member State allows the transcription of marriage certificates, it must apply this procedure equally to unions entered into by opposite-sex couples and same-sex couples alike. Importantly, Donald Tusk’s government, in the course of the proceedings before the CJEU, supported the position that the Court ultimately adopted, and the prosecutor, in the proceedings before the Supreme Administrative Court (NSA), supported the complainants’ request.

Amicus brief of the Ordo Iuris Institute to the Constitutional Tribunal

In the amicus brief submitted by the Ordo Iuris Institute to Poland’s Constitutional Tribunal, the following fundamental arguments were identified, among other things, supporting the view that the new interpretation of Article 104(5) and Article 107(3) of the Law on Civil Status Records adopted by the Supreme Administrative Court is inconsistent with the Constitution of the Republic of Poland.

First, regarding the content and meaning of Article 18 of the Constitution of the Republic of Poland. This provision contains a definition of marriage that delimits its scope, and the constitutional legislator does not establish the identity of marriage therein, but merely confirms the understanding shaped over centuries, according to which marriage is a union of a woman and a man. Article 18 thus sets out two fundamental characteristics of marriage: monogamy and a difference in sex between the spouses. In light of the Constitution of the Republic of Poland, unions lacking these characteristics are not and cannot be marriages. Importantly, the framers deliberately placed Article 18 in Chapter I of the Constitution (“The Republic”), which sets out the fundamental principles of the constitutional order—thus establishing that the protection of the identity of marriage as a union between a woman and a man constitutes one of the supreme principles of the legal order of the Republic of Poland, and any modification thereof would require the stringent requirements specified in Article 235(5) and (6) of the Constitution of the Republic of Poland (with the possibility of holding a confirmatory referendum).

Secondly, the opinion demonstrates in detail that from the principle that marriage is afforded protection and care—expressed in Article 18—there also follows a prohibition on the institutionalization of unions that compete with or are alternative to marriage, whether between persons of different sexes or of the same sex. In light of constitutional axiology, such relationships should remain a matter of legal indifference. The mere fact of legal registration creates a new family-law status, bringing it closer to marriage, which is unacceptable, regardless of the name, the number of participants, or the scope of rights and obligations granted.

Thirdly, the Ordo Iuris Institute points out that the foregoing interpretation of Article 18 of the Constitution of the Republic of Poland finds unequivocal confirmation in the intentions of the framers of the Constitution. The final wording of Article 18 was adopted by the National Assembly (i.e., the gathering of the Sejm and Senate of the Republic of Poland) on March 21, 1997, by a majority of 432 votes out of 477 voting—as Amendment No. 47, which protects the identity of marriage by defining the word “marriage” with the phrase “as a union between a woman and a man”. It is clear from the work of the Constitutional Commission of the National Assembly that the purpose of this wording was to exclude the possibility that ordinary legislation could define marriage as a union other than one entered into between a woman and a man.

Fourth, the opinion recalls the well-established and consistent case law of the Constitutional Tribunal, the Supreme Court, and the Supreme Administrative Court confirming the understanding of Article 18 of the Constitution of the Republic of Poland set out above. The Constitutional Tribunal, already in its accession judgment of May 11, 2005 (K 18/04), held that “marriage (as a union of a woman and a man) has acquired, in the domestic law of the Republic of Poland, a distinct constitutional status determined by the provisions of Article 18 of the Constitution” and that “under no circumstances, including on formal-legal grounds, could a change in the nature or status of marriage in the Polish constitutional legal system take the form of a ratified international agreement.” The Constitutional Tribunal consistently upheld this position in subsequent rulings. The Supreme Administrative Court (NSA) has also repeatedly emphasized—including in judgments from 2016, 2018, and 2020—that, when determining the fundamental principles of the legal order of the Republic of Poland for the purposes of the public policy clause, Article 18 of the Constitution must be taken into account, from which it follows that only a heterosexual union is to be treated as a marriage in Poland.

Fifth, the Ordo Iuris Institute points out that the CJEU judgment of 25 November 2025 in case C-713/23 was issued ultra vires (beyond the issuing authority’s powers) and, from the perspective of the law in force in Poland, it changes nothing. There are several arguments in favor of this position. CJEU judgments do not constitute sources of generally applicable law in Poland. Pursuant to Article 5(2) of the Treaty on European Union, the Union acts solely within the limits of the competences conferred upon it by the Member States, and in the area of substantive family and matrimonial law no such conferral has ever taken place. Moreover, in light of Article 90(1) of the Constitution of the Republic of Poland, it is impermissible to transfer to an international organization the authority to define what constitutes marriage—this was expressly confirmed by the Constitutional Tribunal in judgment K 18/04, which held that the status of marriage could not be changed even by means of a ratified international treaty.

Sixth—and this is an argument of particular importance, the Ordo Iuris Institute notes that the CJEU in case C-713/23 derived the obligation to recognize a “marriage” entered into between persons of the same sex, inter alia, from Article 7 and Article 21(1) of the Charter of Fundamental Rights of the European Union. At the same time, the scope of application of the Charter with regard to Poland was clearly limited by Protocol No. 30 on the application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom, which forms an integral part of EU primary law. Article 1(1) of the Protocol unequivocally precludes the CJEU from finding that Polish provisions or practices are incompatible with the Charter. Thus, deriving from the Charter obligations incumbent upon Poland—as the CJEU did in Case C-713/23—constitutes a flagrant disregard of binding EU primary law and, in itself, renders this judgment an ultra vires ruling.

Seventh, the opinion explains in detail the nature of mandatory transcription, emphasizing that the public policy clause in Article 107, point 3, of the Law on Civil Status Records applies equally to mandatory and optional transcription. The legislature has not provided for any reservations or exclusions in this regard. The mandatory nature of transcription means only that a Polish citizen is required to apply for transcription if they request further civil status registration procedures. It does not in any way relieve the head of the Civil Registry Office (USC) of the obligation to refuse a transcription that is contrary to the fundamental principles of the legal order of the Republic of Poland. Adopting the contrary view would constitute an interpretation contra legem (contrary to law). Moreover, as the Polish Supreme Administrative Court (NSA) aptly pointed out in a resolution of a seven-judge panel dated December 2, 2019 (II OPS 1/19), under the public policy clause it is the legal effects of recognizing a given act—and specifically the effects of its transcription, rather than the content of the foreign act itself—that must be irreconcilable with the fundamental principles of the legal order of the Republic of Poland in order to justify refusing transcription. In the case of same-sex “marriages,” these effects are of course incompatible with Article 18 of the Constitution of the Republic of Poland.

In summary, the Ordo Iuris Institute indicates that the challenged legal provision was created by a body not empowered to legislate, in violation of the principle of separation of powers (Article 10 of the Constitution of the Republic of Poland), the principle of legality (Article 7 of the Constitution of the Republic of Poland), and the fundamental principles of the social order of the Republic of Poland (Article 18 in conjunction with Article 90(1) of the Constitution of the Republic of Poland). The constitutional status of marriage falls within the catalog of powers that may not be transferred pursuant to Article 90(1) of the Constitution of the Republic of Poland. Therefore, it is impermissible to undermine the exclusive status of marriage in Poland’s constitutional legal order by means of international agreements, and a fortiori by acts issued by EU institutions. The CJEU judgment in Case C-713/23 was delivered ultra vires and in breach of Protocol No 30. It is not subject to the principle of the primacy of EU law and cannot serve as a basis for reinterpreting Article 18 of the Constitution of the Republic of Poland. Consequently, the Ordo Iuris Institute petitions the Constitutional Tribunal to declare that the challenged normative content of Article 104(5) and Article 107(3) of the Law on Civil Status Records is inconsistent with Article 7, Article 10, and Article 18, in conjunction with Article 90(1), of the Constitution of the Republic of Poland.