Polish court wants European ruling on same-sex marriage

The Court of Justice of the European Union (CJEU) must set a precedent on recognising gay couples by member states, the Supreme Administrative Court (NSA) of Poland believes. Therefore, the Polish court appealed to the EU judge to issue a ruling on the issue.

Must a country recognise a gay couple that got married in another EU member state even if it does not allow such a union by its own legislation? That is the question the NSA asks the CJEU. According to Notes from Poland, the request from the Polish court is groundbreaking, because usually, courts in Poland do not refer such cases to the European level.

The court case started with two men who married in Berlin, where gay marriage is allowed. One of them was a Polish citizen; the other one had a double Polish-German nationality. Their marriage was not recognised in Poland –not by the registry office or by any court– because Poland's Constitution stipulates that marriage is a “union of a man and a woman” and that “family, parenthood and parenthood shall be placed under the protection and care of the Republic of Poland".

This led to a heated debate between opponents of gay marriage who argue that the Constitution defines marriage exclusively for a man and a woman. However, others claim that the Constitution does not prohibit gay marriage and only stipulates the protection of heterosexual marriage.

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EU

Therefore, the Supreme Court has asked the EU Court to issue a ruling on what the EU law requires. The question that lies on the table now is whether the EU law prevents a member state from refusing to recognise marriage concluded in another member state, Notes from Poland reports.

If the EU court issues a ruling, national courts are obliged to implement that in their own country. There is no possibility of appeal.

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Breakthrough

Lawyer Anna Mazurczak, who represents the couple, calls the development a “breakthrough”, she says to Prawo.

The European Union is known for its leniency towards gay couples. In 2018, the CJEU issued a ruling against Romania because the country refused to grant a visa to the non-European partner of a Romanian citizen because it did not recognise their same-sex marriage that was concluded abroad.

Poland is known for being one of the EU countries with the most traditional laws when it comes to LGBT families.