—Wojciech Zomerski, Visting Fellow, European University Institute
From Ban to Recognition
Although family law formally remains beyond the competence of the EU jurisdiction, recent case law of the CJEU increasingly shapes domestic family law regimes through the “backdoor” of free movement. Already in 2018, in the widely discussed Coman judgment, the Court required Romania to recognise a same-sex partnership for the purposes of residence rights under EU law. Most recently, in its landmark Trojan judgment of 25 November 2025, the CJEU went a step further and required Poland to recognise same-sex marriages lawfully concluded abroad, in this case by transcribing German marriage certificate in the Polish civil register.
The latter judgment triggered an intense debate in Poland as to whether such an obligation can be implemented without amending the Constitution. Since Article 18 of the Polish Constitution provides that “marriage as a union of a man and a woman (…) shall be placed under the protection and care of the Republic of Poland” some scholars argue that this provision defines marriage as exclusively heterosexual, thereby precluding any form of legal recognition of same-sex marriages. Others, such as Ewa Łętowska, argue that since language of Article 18 does not suggest any exclusivity, its practical implication is that it sets a minimum constitutional standard that may be extended at the legislative level.
The legal debate was resolved by the Supreme Administrative Court, which in its judgment of 20 March 2026, obliged civil registry offices to carry out the transcription of foreign same-sex marriages. In its decision, the Court adopted a progressive interpretation of Article 18, emphasising that it must be read in the light of other constitutional principles, such as the prohibition of discrimination and the principle of equal treatment, as well as in the context of the CJEU case law.
In this blog post, I situate Article 18 of Polish Constitution within its broader historical context, tracing its evolution from a provision often interpreted as a systemic prohibition – one that permeated the entire legal order and effectively precluded even the most basic forms of protection – to a norm increasingly subject to more progressive interpretation. In conclusion, however, I caution against excessive optimism. Politically, the judgment was met with severe criticism, and it is clear that right-wing actors will seek to challenge its effects before captured Constitutional Tribunal. Although the Tribunal is ignored by the government, in light of a possible change in office in 2027, the ruling may ultimately prove to be a precarious – if not pyrrhic – victory.
Putting Article 18 in Historical and Comparative Context
Legislative works of Article 18 date back to mid-1990s and took place within the Constitutional Commission. At the time, already a few countries had formalized same-sex partnerships. These developments likely resulted in the initiative of conservative members of the Commission, acting under the Catholic Church’s pressure, to supplement Article 18 with the phrase “marriage as a union of a man and a woman.” During these well documented debates, conservative politicians expressed condemnation of homosexuality, which they perceived as a socially unacceptable ’pathology’ or ‘madness’ (bulletin no. XVII, p. 31-34).
The Commission approved Article 18 by 23 out of 31 votes. Unlike most early post-communist constitutions (e.g. Czechia, Slovakia, Romania), Poland linked marriage to different-gender spouses, although not as explicitly as Hungary’s 2011 Constitution or the amended Slovak Constitution of 2014.
As the provision is open to interpretation, its conservative reading is often justified by appealing to the alleged intentions of the drafters. This approach, however, is problematic. Leaving aside the theoretical question of whether intention should matter at all in constitutional interpretation, the claim that Article 18 was clearly intended to preclude any recognition of same-sex marriage faces two major difficulties. First, more explicit alternatives – such as introducing a direct definition of marriage (“marriage is a union of…”) or including an unambiguous constitutional ban – were rejected by members of the Commission (bulletin no XXIX, p. 136). Second, experts participating in the Commission expressed scepticism about the effectiveness of the adopted wording. One warned that the provision would not, in fact, prevent the future legalisation of same-sex marriage (bulletin no. XVII, p. 34), while another criticised it as an attempt to arrest social change through constitutional means (bulletin no. XVII, p. 31; bulletin no. XXIX, p. 136).
Against this background, while the voting outcome itself is clear, the intentions behind it appear arguably indeterminate. It allows for a range of possible motivations: support based on the belief that the provision introduces a binding prohibition; support grounded in the opposite view, namely that it merely expresses a constitutional minimum without excluding future legislative extension; opposition rooted in the conviction that the provision is too restrictive; or, conversely, that it is insufficiently so.
The Life of Article 18: When Systemic Prohibition Begins to Crumble
What is less controversial is that, in the early years following the entry into force of the 1997 Constitution, the ordinary judiciary tended to apply Article 18 as if it established a broad and formally binding “principle of heterosexuality,” thereby rejecting alternative interpretations that viewed it as a programmatic provision – namely, a clause expressing only a constitutional minimum.
This tendency was particularly visible in case law concerning “remaining in a factual cohabitation,” which under Polish law triggers among others certain tenancy rights, criminal law protections, as well as certain healthcare rights in and access to social benefits. Although the relevant provisions did not explicitly link protection with gender of spouses, courts often interpreted them through the lens of Article 18. The reasoning was roughly as follows: the term “factual relationship” is the legal expression for concubinage, which has traditionally been understood as a relationship analogous to marriage, albeit without formal recognition. Given the constitution entrenched “principle of heterosexuality,” courts concluded that these protections could apply only to different-sex relations.
This approach received some additional backing from the Constitutional Tribunal in its 2005 ruling on the compliance of the Lisbon Treaty with the Polish Constitution, which, in obiter dictum, affirmed the normative content of Article 18 in framing marriage exclusively as a heterosexual institution. Yet, it was precisely during this period that some ordinary courts began to extend the rights associated with factual cohabitation to same-sex couples, emphasizing that, since the relevant provisions make no distinction based on gender, it is not the role of the interpreter to introduce such a distinction. Not all courts shared this approach, however. This divergence ultimately led to the 2010 Kozak v. Poland case, in which the ECtHR ruled on a situation where a male partner in a same-sex concubinage was denied inheritance of tenancy by a local municipality, a decision upheld by the domestic courts. The judgment held that interpreting provisions on cohabitation so as to exclude same-sex couples constitutes unjustified discrimination on the grounds of sexual orientation. The 2010 ECHR decision subsequently inspired the supreme chambers of Poland’s Supreme Court – both civil (2012) and criminal (2016) – to issue legally binding resolutions settling the controversy. These resolutions required ordinary courts to apply factual cohabitation rights to same-sex partners as well.
What Drives Change? When the World Changes, So Does the Law
Each time the understanding of Article 18 evolves, it is met with conservative outrage. A striking example is a dissenting judgment of one Supreme Court judge to the 2016 resolution, who argued that such developments could lead to the recognition of “various types of polygamous relationships or communities of a sectarian nature.” In the domestic, increasingly illiberal context, the most recent judicial reinterpretation of Article 18 is perceived as acting ‘ultra vires,’ inspired by political influential actors and ‘European ideologues.’
While it is important not to dismiss anyone’s general right to engage in political debate or to critically assess the judgments of apex courts, when legal scholars themselves adopt the tone of political outrage, this reflects their reliance on descriptively flawed, static legal theories of law. Viewed through the lenses of mainstream legal theories, associated with positivist (Hart) and non-positivist traditions (Dworkin), the evolution of the understanding of Article 18 can be seen as unsurprising: law always acquires its final content within a social context. This context has changed dramatically over the years.
It was only in 1990 that the WHO removed homosexuality from the list of diseases. Couple years later, in 1994, the UN Human Rights Committee held that criminalization of homosexuality violates international standards. Yet, homosexuality continued to be criminalized long after these developments, with some parts of the Western world to decriminalize it in early 2000s (e.g. Texas).
At the time of drafting the Polish Constitution, and during the subsequent debates in the Constitutional Commission, no legal system in the world recognized same-sex marriage. Since then, Poland joined the EU. This development resulted in the adoption of a pro-EU interpretive directive favouring interpretations that fulfil EU obligations. Today, over half of EU member states recognize same-sex marriage, and majority of them include some other form of same-sex unions. Same-sex unions enjoy the support of half of Polish society, indicating that an increasing number of Poles view homosexual relationships as falling within the scope of constitutionally protected “family” (Article 18) and “private and family life” (Article 47). It is in this context that Article 18 acquires a new normative content.
A Precarious Victory?
Against this background, the Supreme Administrative Court’s ruling of 20 March 2026 (II OSK 216/21) constitutes yet another chapter in the “life of Article 18.” At the same time, its significance can hardly be overstated, as it marks the first instance in which an apex court in Poland has rejected the conservative reading of Article 18. However, this is likely where the good news ends. The path from this decision to any meaningful institutionalization of same-sex partnerships remains long and, given the current political climate, highly uncertain.
Firstly, this is due to the limited scope of the ruling, which was made in the context of freedom of movement and is legally binding only for such cases. Secondly, the political right-wing remains convinced that Article 18 excludes not only same-sex marriages but also any form of institutional recognition for same-sex partnerships. For this reason, President Nawrocki has already suggested a veto for the pending parliamentary bill on the status of the “close person,” which would otherwise have provided one of the weakest forms of protection for same-sex partnerships. Thirdly, politicians from PiS have already declared that they will seek intervention from the politically subordinated Constitutional Tribunal. It is very likely that the Tribunal will rule that relevant provisions, if understood as requiring the transcription of same-sex marriages concluded abroad, are unconstitutional.
Although under current circumstances – where the government ignores the Constitutional Tribunal – this potential ruling will not have any legal effect, this may change following a potential right-wing electoral victory in 2027. In this sense, the Supreme Administrative Court’s ruling represents a symbolic yet fragile victory: it establishes an important legal precedent, but its concrete impact on the institutional recognition of same-sex partnerships remains contingent on broader political developments. At present, those prospects appear rather bleak.
Suggested citation: Wojciech Zomerski, The Curious Life of Article 18: Is Poland Moving Toward the Recognition of Same-Sex Marriage? Int’l J. Const. L. Blog, Apr. 10, 2026, at: http://www.iconnectblog.com/the-curious-life-of-article-18-is-poland-moving-toward-the-recognition-of-same-sex-marriage/