Many of Donald Tusk's government's actions to date have been characterised by illegality – as early as December 2023, it has been attempting to circumvent systemic and statutory standards by means of "obscious", "management" or "guidelines"... The Ministry of Digitisation task fits into this harmful trend – politically, it would most likely not have been possible to force it if it were not for regular lawlessness, to which the government had accustomed its citizens for the past 2 years – argues Adj. Nikodem Bernaciak, analyst at the Ordo Iuris Institute investigation and Analysis Centre.
On 16 January, a proposal for a regulation of the Ministry of Digital Affairs on the amendment of the form of civilian position records appeared. The terms ‘married’ and ‘wife’ would be replaced by the gender-neutral formulas ‘married 1’ and ‘married 2’. Can specified a change be made only by means of an act of lower rank, or regulation?
The current regulation on model papers issued in the field of civilian position registration, including matrimony certificates, dates from 2023. The erstwhile regulation of this kind came from 2015, with changes made in 2017 and 2020. These regulations are issued on the basis of the authorisation provided for in Article 33 of the civilian position Act 2014. The erstwhile law came from 1986 and regulations containing draft acts came from 1987, 1998 and 1999. Throughout this time, for a full 40 years, the model of the matrimony certificate has always provided that the box intended for the husband is entitled ‘man’, and the column intended for the wife is entitled ‘woman’.
Thus, while it is, as we can see, possible to change patterns on the basis of the same statutory authorisation, material compliance with another statutory and systemic standards is besides to be expected from the regulation. Meanwhile, the Law on civilian position Acts uses the concept of "man" and 6 times the word "woman", emphasising, first, the rule of dichotomous division of society into 2 sexes and, secondly, the rule of heterosexuality in relation to both matrimony and parenthood (maternity or fatherhood).
The Ministry of Digitisation has so ignored the content of Article 18 and Article 33 of the Constitution of the Republic of Poland, as well as the full provisions of the Act on the basis of which this would be a circumstantial regulation. Only Articles 48, 87, 88 and 104-107 are specifically cited in the explanatory memorandum of the draft regulation. civilian position records, with complete disregard for another provisions of the Act.
This amendment infringes § 9 (in conjunction with § 132) of the Decree of the Prime Minister on the principles of legislative technique, which states that "the terms utilized in the basic law for a given matter" should be utilized – and so the terms "man" and "woman". It besides violates § 10 of the principles of legislative technique, according to which "the same terms are utilized for the indication of the same terms and different terms are not the same terms" – while the concept of "first spouse" or "second spouse" contained in the draft may mention to both man and woman, which causes conceptual chaos.
The solution advocates describe this change as “executive” and “technical” and so without prejudice to Polish household law. Is that truly the case?
In fact, this change violates the fundamental rule of the Polish strategy and household law – the rule of heterosexuality of marriage. By a judgement of 11 May 2005, the Constitutional Tribunal ruled that "marriage (as a union between a female and a man) had acquired a separate constitutional position in Polish national law determined by the provisions of Article 18 of the Constitution. A change of that position would only be possible with the rigors of the procedure for amending the Constitution referred to in Article 235 of that Act." By judgement of 9 November 2010, he besides added that "the only normative component decoded from Article 18 of the Constitution is to establish the rule of heterosexuality of marriage".
By order of 1 July 2021, he besides reiterated this explanation with respect to the Codex: "There is no uncertainty that the ratio legis of Article 1(1) of the household and Care Code was a clear definition of the admissibility of matrimony by persons of the other sex only", and "if the legislator had introduced a regulation allowing the conclusion of single-sex marriages, this would be contrary to Article 18 of the Constitution, defining matrimony as a relation between a female and a man."
Also, the historical explanation leaves no uncertainty here – already during the process of drafting the current Article 18 of the Polish Constitution by the Constitutional Commission of the National Assembly, on 27 February 1997, Senator Alicja Grześkowiak, later Marshal of the Senate, explained the request to "clearly evidence that matrimony is simply a relation between a female and a man and only as specified it becomes a constitutional value. This would prevent the introduction of a side gate into law or the anticipation of a relation between individuals who show natural obstacles to marriage, or 2 women or 2 men."
The draft presented by the Ministry of Digitisation appears to be just specified a "side gate", seeking to breach the Constitution no longer at the statutory level (which is presently prevented for political reasons as long as the president of the Republic of Poland was Andrzej Duda for 10 years first, and now he is and will be Karol Nawrocki for at least 5 years), but at the level of an even lower-ranking act – regulation.
What will be the consequences of the government's possible adoption of the Ministry of Digital Affairs project?
Many of Donald Tusk's government's actions to date have been characterised by illegality – as early as December 2023, it has been attempting to circumvent systemic and statutory standards by means of "obsolescence", "management" or "guidelines". Sometimes these actions take on a grotesque form – specified as the celebrated “revocation of the countersignature under the decree of the president of the Republic of Poland in self-control” or “recognition of the reinstatement of the National Prosecutor to the active service as having no legal effect”.
The Ministry of Digitisation task fits into this harmful trend – politically, it would most likely not have been possible to force it if it were not for regular lawlessness, to which the government has accustomed its citizens for the past 2 years. On the 1 hand, Minister Gawkowski in his authoritative communication argues that the task is simply a consequence to the judgement of the Court of Justice of the European Union of 25 November 2025 and, on the another hand, neither the justification of the task nor the attached Evaluation of the Effects of the Regulation do they mention at all.
It so appears that, at the legislative level, the government deliberately avoids referring to this judgment, as it is aware that the task goes far beyond the advice of the TEU (which does not alter the fact that if it is understood as imposing a regulation on household matters by a associate State, it infringes Article 81(3) of the Treaty on the Functioning of the European Union and should so not be regarded by Poland as requiring any organization designation of single-sex unions).
The apparent illegality of this regulation makes it a substance of precedence that, looking to the future, it should be repealed after Donald Tusk's government has changed to a government respecting the natural identity of matrimony as a union between a female and a man. Of course, immediately after the publication of this regulation, entities certified under Article 191(1)(1) of the Constitution of the Republic of Poland (in peculiar president Karol Nawrocki, but besides a group of 50 MPs, 30 Senators or First president of the ultimate Court) under Article 188(3) of the Constitution should appeal them to the Constitutional Court.
However, the current government is celebrated for the notorious failure to print the Court's judgments and does not apply to them, so this path, although crucial and essential for future systemic healing, will not be full effective in practice. Meanwhile, the Ordo Iuris Institute offers full legal support to civilian position officials who, contrary to their conscience, would be forced by their superiors to draw up civilian position records misdetermining the monosexual relation as alleged ‘marriage’. The current situation calls for specified acts of "citizen disobedience" and to express opposition to the unconstitutional, illegal actions of the government hitting the identity of the marriage.
Thank you for talking.
Peter Relich
"Brussels locuta, causa finita". Homodictation under EU aegis
