Out in the World: European court rules Poland violated same-sex couples' rights

  • by Heather Cassell, BAR Contributor
  • Friday December 29, 2023
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The European Court of Human Rights has ruled that the Polish government has violated the rights of five same-sex couples who wanted to register to marry. Photo: Courtesy the European Council
The European Court of Human Rights has ruled that the Polish government has violated the rights of five same-sex couples who wanted to register to marry. Photo: Courtesy the European Council

The European Court of Human Rights recently ruled that Poland violated five same-sex couples' rights by denying them the ability to legally recognize their relationships when they attempted to register to marry.

The court issued its decision December 12 but announced it in a December 19 news release.

The court, based in Strasbourg, France, is led by its president, Justice Alena Poláčková. The court voted 6-1 in favor of 10 unidentified Polish plaintiffs born between 1963 and 1991 who individually attempted to register to marry their same-sex partner at their local civil registries in Cracow, Łódź, and Warsaw, according to the release.

"This verdict is proof that individual resistance changes reality," said attorney and coalition coordinator Pawel Knut in a December 12 statement from Polish LGBTQ organization Campaign Against Homophobia, responding to the ECHR decision.

"Our coalition is testimony to the fact that when politicians fail, ordinary people take matters into their own hands and effectively fight for their rights," Knut added. "The consistent persistence of five couples moved the country. From today we start living in a new reality in which the roles have been reversed. Same-sex couples no longer have to ask for recognition in court or office. Thanks to the tribunal's judgment, the state must start explaining why it has not yet introduced appropriate legal protection."

The decision places Poland's newly elected pro-European Union Prime Minister Donald Tusk's government in the hot seat to follow through on his campaign promise to improve LGBTQ Poles' lives, including to legalize same-sex marriage, reported Pink News.

In October, the ruling right-wing Law and Justice party was upended by Tusk's Civic Platform centrist party, reported the New York Times. Tusk previously served as prime minister from 2007 to 2014. Polish President Andrzej Duda's Law and Justice Party had been in power since 2015.

The case

Polish government officials rejected the couples' applications to marry based on Article 18 of Poland's Constitution, which states marriage is a "union of a man and a woman, as well as the family, motherhood, and parenthood."

In 2017 and 2018, the couples sued Poland at the ECHR, arguing that provisions of the Central European country's Family and Custody Code were incompatible with the country's constitution.

The court decided to examine the applications jointly in a single judgment, according to the release.

The release stated that two applicants' constitutional complaints were dismissed by the court December 15, 2021, stating that the argument same-sex marriage should be characterized as a legislative omission was "outside" the court's "competence." That meant the applicants could file a case at ECHR since they exhausted all legal avenues in their home country. The court dismissed the Polish government's argument that the couples hadn't exhausted all legal avenues in the country's legal system.

The other eight applicants' constitutional complaints have not yet been examined. The court noted that the other complaints were "almost identical" to the dismissed complaints and "would probably result in the same outcome," according to the release.

The decision stated the 10 plaintiffs based their argument on the right to respect for private and family life (Article 8) and the prohibition of discrimination (Article 14) in Poland's Constitution. Additionally, the couples complained of a lack of any form of legal recognition and protection for same-sex couples in Poland.

The couples noted in their argument that most member states of the Council of Europe offer marriage equality or some form of civil union. The couples asserted the lack of being able to have their relationships legally recognized disadvantaged them in taxation, social rights, and family law.

According to the release, the court dismissed the government's objection that eight of the applicants had not exhausted all national legal avenues since their constitutional complaints were still pending. The court also admonished Poland's argument that the issue was at its "wide discretion," stating traditional marriage between a man and a woman constituted its "social and legal heritage," which echoed Russia's argument against legally recognizing same-sex couples in the Grand Chamber's January 17 decision for Fedotova and Others v. Russia.

In that case, three same-sex couples sued Russia for refusing to register to marry them.

Russia banned same sex-marriage in 2021, reported the Washington Blade. The same year, the ECHR ruled Russia violated the European Convention on Human Rights by not providing same-sex unions to same-sex couples, reported Amnesty International.

The court stated Poland's case "did not concern same-sex marriage." The judges noted that other E.U. countries were able to implement a legal mechanism to recognize and grant rights to same-sex couples.

"It was important that the protection afforded by member states to same-sex couples was adequate," the court stated in the decision.

The court determined that Polish same-sex couples in "stable and committed" relationships were not protected by the current Polish legal framework, limiting them from managing their lives together on issues from taxation to inheritance. Additionally, Polish same-sex couples' "relationship held no weight in dealings with the judicial or administrative authorities."

The court also considered the anti-LGBTQ rhetoric and environment propagated by high-ranking Polish leaders, such as Duda and members of the Law and Justice party, in its decision, according to the release.

Polish Judge Krzysztof Wojtyczek wrote the dissenting opinion.

Got international LGBTQ news tips? Call or send them to Heather Cassell at WhatsApp/Signal: 415-517-7239, or [email protected]

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