––Adam Bodnar, Professor of Law at SWPS University in Warsaw
On 20 March 2026 the Supreme Administrative Court of Poland (“SAC”) delivered a breakthrough judgment concerning legal recognition of same-sex marriages that were performed in other EU Member State.[1] This was not just another human rights case decided by a domestic court. Its significance in constitutional debate, interpretation of EU law, and broader policy considerations goes well beyond what one might typically expect.
The judgment was a result of a litigation brought by two Polish citizens – Jakub Cupriak-Trojan and Mateusz Trojan, who lived for many years in Germany, enjoying their status as EU citizens. They have entered into a same-sex marriage in Berlin. Later on, they have decided to move and live their life together in Poland. They requested a formal recognition of their marriage from the Registry Office in Warsaw. However, the Registry Office refused, claiming that Polish law does not provide for an ‘institution of marriage’ being performed by two persons of the same sex. The couple have appealed against this decision to the Regional Administrative Court in Warsaw, which shared the same view as the Registry Office, and their claim was rejected. Thus, they appealed to the SAC. At this stage, the applicants managed to convince the SAC to make a preliminary reference to the Court of Justice of the European Union (CJEU).
For the CJEU the case was pretty straightforward, considering the previous jurisprudence relating to rights of the EU citizens who are moving across EU Member States. Generally, enjoyment of the basic EU citizens’ freedom of movement and residence, as guaranteed in Article 20 and 21 of the Treaty on Functioning of the EU, should not result in discrimination, or lead to situations that may have a chilling effect on their private or family life. The Court’s caselaw includes e.g., recognition of family names, access to social benefits, enjoyment of political rights, issuance of birth certificates, but also rights of same-sex couples. Most notably, a few years ago in the Coman case, the CJEU decided that the Romanian authorities ought to have recognized the marriage of an EU citizen and a third-country national in the context of residency rights, when the couple wanted to come back to Romania.[2] Accordingly, the CJEU answered the preliminary question asked by the SAC on 25 November 2025, that provisions of Polish law should not prevent the recognition of same-sex marriage legally established in the other EU Member State by EU citizens.[3]
When the CJEU announced the judgment in the Cupriak-Trojan and Trojan case, it was met with varied social and political reactions. Human rights and LGBT+ organizations acclaimed the judgment. Politicians of the ruling coalition reacted initially positively, but later the general enthusiasm was restrained by the cold comment of the Prime Minister Tusk.[4] The right-wing politicians, unsurprisingly, accused the CJEU of following an ideological path, allegedly contrary to the Polish traditional values. Importantly, the government started the work to amend executive ordinances to the Law on the Civil Status to allow for registration of same-sex marriages and issuance of transcripts of foreign marriage documents.[5] But, one could not escape the feeling that the issue was not being treated as a matter of urgency. After the CJEU judgment, it was time for the SAC to deliver the final judgment. The Regional Prosecution Office in Warsaw, which joined the case as a third party, supported the argumentation of the applicants in the written pleas before the CJEU and the SAC. On 20 March 2026, the courtroom in Warsaw gathered a large and diverse audience, including journalists and representatives of the LGBT+ community. The same-sex couples sitting in the audience, with their hands clasped, were visibly nervous about the result. A sense of an impending breakthrough was palpable, particularly after the arguments presented by experienced LGBT rights lawyers Paweł Knut and Artur Kula.[6]
The SAC, headed by Judge Leszek Kiermaszek, decided that non-recognition of same-sex marriages established legally in other EU Member States violated Polish law. It ordered the Registry Office in Warsaw to issue a transcript of the marriage act within 30 days from the return of the case file from the court.
Considering the answer to the preliminary ruling given by the CJEU, this judgment was not a surprise. It is what an independent court should say. The SAC has retained the status of an independent court amidst the rule of law crisis, and through the turbulences concerning other apex courts in Poland—the Supreme Court and the Constitutional Court. Therefore, it is not only the judgment itself, but also the reasoning given by the SAC, that should attract special attention within the context of Polish constitutional debates.
First, the SAC referred extensively to the CJEU jurisprudence concerning EU citizens. It noted the Coman case and found that if the CJEU recognized the rights of the marriage contracted by the EU citizen and the third country national, such recognition should be a minore ad maius made with respect of marriage of the EU citizen. Moreover, the SAC has noted the almost absolute right of respect for the private life of EU citizens exercising their freedom of movement by referring to the CJEU judgment in Shipova issued just 8 days before.[7] The SAC has also referred to the need to respect individual rights, as they are guaranteed in Articles 7 and 21 of the EU Charter of Fundamental Rights, which correspond with Articles 8 and 14 of the European Convention on Human Rights (ECHR). Thus, standards coming from the Orlandi v. Italy case,[8] but also from Polish cases concerning non-recognition of same-sex unions, should apply—the SAC quoted Przybyszewska and others v. Poland,[9] Andersen v. Poland,[10] and Formela v. Poland.[11]
Second, the SAC dealt with the major argument in the Polish constitutional debate, namely the definition of marriage as provided in Article 18 of the Polish Constitution. It says 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.” According to many commentators and legal scholars, this provision makes it impossible to pass any legislation concerning same-sex marriage (or registered partnership) as well as prohibits any recognition of such marriages or unions that are legally established in other states. Some others claim that this provision only authorizes special protection by the state of different-sex marriage and cannot be regarded as a definition excluding same-sex couples from recognition. Furthermore, one should note that this provision also requires the protection of “family.”
The SAC stated that Article 18 of the Polish Constitution cannot be read as excluding all possibility of recognition of same-sex marriage performed in the other EU member state. Such an approach would be discriminatory and contrary to EU law. But, at the same time, it does not limit the competence of the Parliament to regulate domestically the status of same-sex marriage or other forms of same-sex unions. Furthermore, in the Constitution, one finds additional provisions, such as Article 30 (dignity), 31 (personal freedom), 32 (non-discrimination), or 45 (respect for private and family life), that justify recognition of same-sex marriages legally established in other EU member states. Similarly, the SAC dealt with one more argument—the public order clause—that, according to opponents, can be successfully used to prevent recognition of same-sex marriages that were legally performed in other EU Member States. In the SAC’s opinion, this clause cannot be interpreted this way. Moreover, it might even be in the interest of the state to have knowledge (as a result of registration) of same-sex marriages residing in Poland than to treat spouses living in such relationships as being alien to each other.
Finally, the SAC dealt with a possible “demon” of potential practical implications regarding the issuance of marital status transcripts. Quite often in the Polish public debate, one could hear the argument that getting relevant transcripts is not possible due to the IT system requirements of registry offices, regulated by executive ordinances. To put it shortly, one has to insert names of spouses into columns for “husband” and “wife.” Obviously, those ordinances could be easily amended and the IT system adjusted according to needs,[12] but somehow it did not happen after the CJEU judgment. Therefore, there was a risk that even if the SAC found in favour of the applicants, they would face administrative hurdles. Furthermore, one could fear that those administrative constraints would be used as carte blanche to delay implementation of the judgment. The SAC identified this danger. It declared that no executive ordinance may impede the effectiveness of individual rights, as they are provided in primary law or in legislation. If there is a problem with the IT system and relevant columns, one should use existing ones and simply make proper annotation explaining some inconsistency. But certainly, these ordinances should be changed. That is why the SAC ordered the Registry Office in Warsaw to issue a transcript within 30 days after the return of the case file. Such a direct order included in the final judgment does not give authorities any space for discussion. A transcript has to be issued, and the rights of the first same-sex couple in Poland will be recognized.
As one could expect, the pronouncement by the SAC met all expectations of the LGBT+ community. It rarely happens that after finishing reading the grounds for the verdict, and when leaving the courtroom, the judges would hear such strong applause. Please note that the LGBT+ community in Poland suffered tremendously during 8 years of illiberal regime and could not even get the new legislation regulating homophobic hate crimes.[13] Strategic litigation of cases became the only possibility to improve conditions of their life and to fight for non-discrimination and dignity. Finally, the SAC delivered a judgment that was awaited, and for such a long time.
One should, however, reflect on additional social, legal, and political dimensions of this judgment. It came when the current government was already working on the law on the status of the closest person and on the cohabitation agreement.[14] The draft law was the subject of preparation for the last two years; it has been adopted as a governmental draft law and submitted by the end of 2025 to the Parliament for further debate. In Polish conditions, even such a step is a milestone, because in the past any other law concerning same-sex unions was never prepared in the government. However, the law is quite restrictive and provides only a level of basic protection for same-sex couples, and certainly does not meet the expectations of the LGBT+ community. Furthermore, even if adopted by the Parliament, there is a small chance of getting the signature of the President of Poland – needed for the law to come into effect.
Furthermore, as a result of the SAC judgment, one should expect numerous LGBT couples seeking the possibility to register their marital status. Using the possibility of liberal legislation in numerous EU countries, they will enter into same-sex marriages as EU citizens elsewhere, and then request transcripts of their marriages domestically. This “external” way of regulating their family life could become a pattern of social behaviour, especially when there is no prospect of domestic law regulating same-sex marriage, and not even registered partnerships. Most probably, getting transcripts of marriage certificates will allow them to enjoy basic rights as married couples before Polish authorities, but also in different private relations (civil contracts, insurance, inheritance, health services, etc.). The president of the Social Security Office has already announced that he would treat such couples as a regular marriage.[15] More such developments will probably follow.
However, negative developments are also possible. The judgment has been strongly criticized by right-wing politicians and media, who accuse both the SAC and the CJEU of exceeding their powers and acting contrary to the Constitution. The “Law and Justice” party – major opposition voice – has declared that it would reverse such recognition, if it ever returns to power. It has also submitted a relevant motion to the politicized Constitutional Court, seeking reversal of relevant provisions of domestic laws regulating recognition of civil status. These reactions echo aspects of the U.S. debate surrounding the Defense of Marriage Act. They also reflect broader tensions in Poland regarding the EU integration. The CJEU is often portrayed not as an independent judicial body but as part of a European political apparatus. As a result, its rulings are frequently interpreted through a political rather than legal lens. This issue is likely to feature prominently in the 2027 parliamentary elections’ campaign, with conservatives potentially using it to criticize the European Union. Such dynamics may deepen societal polarization and further challenge the EU’s legitimacy in Poland.
Irrespectively of political considerations and developments, the practical and legal effect of the judgment is clearly noticeable and represents a real change. Like on the famous cover of the “Dark Side of the Moon” album of Pink Floyd, where a beam of light passes through the glass prism and spreads into rainbow colours, one fixed perspective can open up into something more complex. Similarly, the judgment of the Supreme Administrative Court works like a prism, breaking the previously one-sided view of marriage. It indicates that there is more than one way to understand it, especially in the context of EU integration. For rainbow families in Poland, this brings a sense of real hope—that a normal life, based on love, trust, and mutual care, might finally become possible.
Suggested citation: Adam Bodnar, Not-So-Dark Side of the Moon, Int’l J. Const. L. Blog, Apr 1, 2026 at: http://www.iconnectblog.com/not-so-dark-side-of-the-moon/
[1] No of the case: II OSK 216/21.
[2] Case C-673/16, Coman and Others v Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne, judgment of 5 June 2018, ECLI:EU:C:2018:385
[3] Case C-713/23, Jakub Cupriak-Trojan and Mateusz Trojan v. Wojewoda Mazowiecki, judgment of 25 November 2025.
[4] Prime Minister Donald Tusk stated that “- We will, of course, respect the rulings and judgments of the European courts on this matter as well. I repeat, these apply to all those who live in other European countries, and when they arrive in Poland, we will have to – and we will want to – treat them with the utmost respect, but also in accordance with Polish law”. However, he added that “no one will impose on us anything regarding this issue”. Polish Press Agency, 26 November 2026, https://www.pap.pl/aktualnosci/premier-tusk-o-wyroku-tsue-nikt-niczego-w-tej-sprawie-nie-bedzie-nam-narzucal
[5] Draft ordinance has been presented by the Minister of Digitalization on 16 January 2026, https://www.gov.pl/web/cyfryzacja/polska-przygotowuje-zmiany-w-dokumentach-stanu-cywilnego-po-wyroku-tsue
[6] There was a third lawyer on the team representing applicants—Anna Mazurczak—who could not participate in the hearing.
[7] C-43/24, Shipova, judgment of 12 March 2026, ECLI:EU:C:2026:183
[8] Orlandi and others v. Italy, applications nos. 26431/12; 26742/12; 44057/12 and 60088/12, judgment of 14 December 2017.
[9] Przybyszewska and others v. Poland, applications nos. 11454/17 and 9 others, judgment of 12 December 2023.
[10] Andersen v. Poland, application no. 53662/20, judgment of 24 April 2025.
[11] Formela and others v. Poland, applications no. 58828/12 and 4 others, judgment of 19 September 2024.
[12] According to the draft ordinance proposed by the Minister of Digitalization, instead of “husband” and “wife,” relevant columns should be “spouse 1” and “spouse 2.”
[13] It happened due to the position of the President of Poland, who referred amendments to the Criminal Code to the Constitutional Court, before signing the law. The Constitutional Court is not an independent judicial institution (see C-448/23, Commission v. Poland, judgment of 18 December 2025). It has decided that the law in question is contrary to the Constitution (judgment of 30 December 2025, Kp 3/25).
[14] Ustawa o statusie osoby najbliższej w związku i umowieo wspólnym pożyciu, druk sejmowy (Sejm’s official text) No. 2110. The title of the law is a result of political compromise within the government. The draft law is available at https://orka.sejm.gov.pl/Druki10ka.nsf/0/E5095072FE909FD1C1258D71003A801F/%24File/2110.pdf
[15] See communication of the Social Protection Office of 26 November 2026, https://www.zus.pl/-/zus-respektuje-dokumenty-sporz%C4%85dzone-przez-polskie-urz%C4%99dy-stanu-cywilnego?redirect=%2F