Resumen de Do the same-sex couples have the right to marry under the rules of the Universal Declaration of Human Rights and the Constitution of Republic of Poland from 1997?
The right to marry is clearly expressed in the art. 16 of the Universal Declaration of the Human Rights. Also Polish Constitution from 1997 regulates the institution of marriage in its art. 18. The main aim of the presentation would be to analyse if the same-sex couples have, regarding the mentioned rules, right to marry.
The introductory analysis leads to the conclusion that these rules do not establish the right to marry for the same-sex couples. The UN Human Rights Committee in Joslin vs. New Zeland stated that art. 23 of the International Covenant on Civil and Political Rights establishing right to marry concerns only opposite sex couples. The mentioned rule is similar to the art. 16 of the Universal Declaration of the Human Rights.
The Polish Constitutional Tribunal in its verdict on the constitutionality of the Treaty concerning the accession of the Republic of Poland to the European Union (K 18/04) supported by the majority of constitutional law experts stated that under art. 18 of the Polish Constitution which states that “Marriage, being a union of a man and a woman […] shall be placed under the protection and care of the Republic of Poland”, the marriage could be regarded only as the union of a man and a woman.
However, further research could lead to the opposite conclusions. The art. 16 of the Universal Declaration of the Human Rights only states that “men and women […] have the right to marry”. Men and women are plural nouns, hence this rule could be interpreted as establishing the right to marry for all persons of both sexes. It does not exclude the situation when two “men” or two “women” get married. Moreover, art. 2 of the Universal Declaration expresses the entitlement of everyone to all rights and freedoms set forth in this Declaration, without distinction of any kind, e.g. sexual orientation. This would mean that homosexual persons could be the subject of the right to marry, as they are “men” or “women”.
Recently, some constitutional law experts in Poland presented the opinion that art. 18 of the Polish Constitution does not expressly prohibit the marriage of the same-sex couples. These opinions were supported by the recent judgement of Warsaw Voivodeship Administrative Court. However, such interpretation of this rule brings serious doubts based on language-logical, teleological and historic-legal methods of legal interpretation.
