Partnerships - 8 reasons why “partner unions” should not be introduced in Poland.

Recently, the announcements of Prime Minister Donald Tusk and Minister of Equality, Catherine Kotula, have been made regarding the beginning of work on the introduction of partnership institutions into Polish law. Despite the contradiction of this thought with the Polish legal system, the ruling coalition inactive stands in the position of wanting to introduce them. lawyer Rafal Dorosinski of the Ordo Iuris Institute presents 8 reasons why “partner unions” are not allowed (and do not request to be introduced).

The reasons set out below are explained in item by Dorosiński. The justification is not only due to legal motives, but besides to social and more broadly axiological reasons.

1) The institution of the partnership is incompatible with the Constitution of the Republic of Poland - the intent of Article 18 of the Basic Act was, according to the National Assembly, to prevent specified an institution from being introduced.

The institutionalisation of concubines (hetero and homosexual) was repeatedly raised by both the Constitutional Court and the ultimate Court. Recalling the position of the ultimate Court, the Ordo Iuris Institute pointed out that at the origin of Article 18 of the Constitution there is simply a desire to prevent the institutionalisation of same-sex unions, as clearly demonstrated by the statements of the participants of the Constitutional Commission of the National Assembly. This is simply a conscious, axiological choice of the bodymaker to warrant the normative model of a household based on matrimony of man and woman.

(2) Whereas the different treatment of different types of relationships complies with the rule of equal treatment and non-discrimination;

Contrary to the claims of supporters of the institutionalisation of single-sex unions, its absence is not contrary to the prohibition of discrimination against Article 32(2) of the Constitution. First of all, those who engage in sexual activity in homosexual relationships, on the same terms as everyone can marry the other sex.

Secondly, [...] both the Polish Constitutional Court and the ultimate Court and the European Court of Human Rights indicate that the different treatment of citizens by state institutions is discriminatory only if there is no nonsubjective or reasonable justification. Therefore, “not always ... different treatment is about inequality and discrimination. The assessment of this differentiation of the situation of operators is always based on the uncovering that this differentiation can be attributed to a legitimate nature.’ And elsewhere, the TK: “The prohibition of discrimination resulting from Article 32(2) of the Constitution of the Republic of Poland is not the same as the prohibition on differentiating the situation of legal entities. It is simply a ban on unjustified, different situations of akin legal entities, in the process of legislating and applying the law." Thus even akin relationships can be treated differently if there is simply a justification for this (if there is simply a justification, different treatment simply does not constitute discrimination). All the more reason to treat different relationships differently. In another words, constitutionalists stress that in rule equality lies in "the presumption of different treatment of entities and situations which are not of a akin (identical) nature".

(3) the institution of the partnership allows for privileges, including funding, without the requirements and obligations of matrimony and thus would lead to discrimination against spouses.

The institution of the partnership is, according to the projects presented in fresh years, a duplication of a number of essential elements of the institution of marriage. These include, among others, the conclusion of a union in the USC, the change of name, the property community, joint taxation settlement, the exemption from inheritance and donations taxation or the care allowance.

In turn the actual differences between the 2 institutions came to an end (especially in later projects) mainly to ease of solution the partnership relation and the deficiency of creating legal ties between the partner and the kid of the another partner. At times, even the anticipation of unilateral termination by 1 of the partners was anticipated. This would lead, among another things, to the examination of common usage and make a situation of legal uncertainty in relations with 3rd parties.

However, as the ultimate Court pointed out, “advantageable solutions (e.g. tax, inheritance law) are a consequence of advanced requirements and expectations for matrimony and are to implement the protection of a household formed by marriage.”¹ Thus, the institution of the partnership should be considered as a mechanics for circumventing provisions establishing obligations for spouses. For this reason, institutionalisation of partnerships for other sexes would lead to discrimination against spouses.

(4) Whereas the protection of the interests of persons in single-sex unions is possible without the creation of a couple's institution;

Supporters of the institutionalization of single-sex unions argue that current regulations do not defend concubines (both consecutive and homosexual) and treat them as "legally individual".

In response, it should be noted that, first, the way to matrimony and the associated protection is available to all, and not to usage it is free of decision by circumstantial persons.

Secondly, as we have already written, there is neither a prohibition on the protection of the interests of those in specified relationships nor a prohibition on any regulation of the legal situation of specified persons that is not advocated by the drafters. As the ultimate Court pointed out, it is permissible to regulate certain legal consequences of staying in a common life². At present, both jurisprudence and doctrine state that property relations between persons surviving together are subject to evaluation by the prism of the rules applicable to those relations, i.e. the provision of services in a household or in a workplace, the rules governing the functioning of a civilian partnership (e.g. joint business), on co-ownership or unjust enrichment.

Regardless of the above, persons who are in an informal relation may, on the basis of existing legal standards, conclude a maintenance contract, actual care, appoint to inherit by will or authorise certain activities in the sphere of another person. Many times without specified a contract, the individual who remains in the common life enjoys the rights associated with this, specified as those guaranteed by the Patient Rights Act and the Patient Rights Ombudsman, or the anticipation of entering into the rental relation of the deceased governed by Article 691 k.c., as the designers themselves note. The media indicated 10 years ago³ it is clear that same-sex notarial law firms offer comprehensive services to safeguard the interests of participants of specified a relation without the request to hotel to the constitutionally contrary institutionalization of the couple-marital union.

5. partnerships are equal to the slant leading to the designation of single-sex couples as married couples.

Empirical data from countries that have introduced partnerships indicate that this is simply a minute after which the institution of matrimony does not usually regain its position. This is illustrated by the example of Germany, which “shows that the institutionalization of homosexual concubines easy leads to many serious consequences, de facto questioning the unique position guaranteed by matrimony law. This becomes possible, among others, thanks to the activism of constitutional courts. [...] Since the introduction of registered partnerships institutions in 2001, the FTK, contrary to the clear will of the legislature, verbally reaffirming its earlier case law regarding the peculiar function of marriage, has consistently extended to partnerships, social and taxation privileges which so far are only for marriages"

(6) The establishment of a partnership institution opens the way to restrict freedom of conscience and religion, economical freedom, freedom of speech and the right of parents to rise children in accordance with their beliefs.

Institutionalisation of single-sex unions will, as in another countries, trigger a process of equalising the position of specified relationships with matrimony under the slogan of equal treatment and non-discrimination. This will lead to the inevitable designation of supporters of the conventional view of matrimony as being discriminated against. Their views will consequently be ignored from public life through the increasing legal, economical and social pressures associated with the escalation of further demands: to limit freedom of conscience and religion, economical freedom and freedom of expression and to drastically restrict parents' right to rise children according to their beliefs.

The experience of countries in which the natural identity of matrimony has been undermined clearly shows this. Adoption agencies, vacation home owners, printers, wedding organizers, nursing homes, colleges, officials, bakers, florists or photographers are punished erstwhile they refuse to actively support homosexual lifestyles.

7. the institution of the partnership shall subsequently appoint children with the intention of depriving them of at least 1 of their biological parents by means of in vitro and surrogate.

The consequence of the introduction of partnerships would be to rise a further request by LGBT organisations to redefin the institution of matrimony and then the subsequent adoption of children. Polish LGBT activists talk openly about it. On 14 March 2019, the then Vice president of Warsaw, Paweł Rabej, announced that “the stage” later known as “the Rabey plan”: “Let us first introduce partnerships, then matrimony equality, and yet come time to adopt children.”

This would mean, first, agreeing to bring children with intention to life deprivation of at least 1 of their biological parentswhich would in itself be a form of violence. Secondly, consent to Trade so conceived children who buy from women for a fee to make their ‘belly available’.

(8) There is no work under global law to legally recognise single-sex unions.

The Universal Declaration of Human Rights, the global Covenant on civilian and Political Rights, the Charter of Fundamental Rights of the EU, the European Convention on Human Rights or any another global law does not imply a commitment to the legal designation of single-sex unions.

However, the European Court of Human Rights, in its judgement of 12.12.2023 in Przybyszewska and another v. Poland, stated that the deficiency of legal designation and protection of single-sex unions constitutes a violation of the right to respect for household life (Article 8 of the European Convention on Human Rights).

When it comes to axiological issues relating to the introduction of partnerships, it should be made clear that the introduction of this thought into the legal strategy would have serious consequences, leading to the deconstruction of the household and household values themselves. It would be possible to look with a permissive eye at partnerships for multi-sex couples, although with the approval of couples of teenage age (which is found in the legal systems of any U.S. states) these values will not have specified a affirmative effect in the future than in older couples and more mature ones. Nevertheless, the institution of a partnership is an institution (seeing in purely legal and axiological terms) completely unnecessary and sometimes besides damaging the natural values of household and love, while materializing both concepts.