Though his proposal was of a conciliatory nature, he assumed this would enable to avoid the risk of the act being unconstitutional. This concept was supported by a Civic Platform (Platforma Obywatelska, PO) deputy, Jacek Żalek, who prepared a bill “on cohabitation”, which does not give rise to a new “marital status” but facilitates functioning at a number of levels in relationships that will remain informal anyway.
I do have a problem with the bill. Mainly because it originates from the proposition that Article 18 of the Polish Constitution excludes the possibility of having civil partnerships institutionalised. Yet, the provision states that “[m]arriage as a union of a man and a woman, as well as the family, motherhood and parenthood, shall be placed under the protection and care of the Republic of Poland.” Interpretation leaning towards excluding the possibility of institutionalising civil partnerships is based on one hand on the meaning embedded in the content of the Constitution and on the other – on conjuring the meaning of “protection and care”.
Meaning embedded in the Basic Law
In a discussion on the interpretation of Article 18 of the Constitution, an argument appeared of a constitutional legend nature. Deputy Minister Michał Królikowski said in the Sejm that in his opinion, Article 18 was unique as it resulted from a meeting held on 2 March 1997 with the then Speaker of the Sejm Józef Zych and the Joint Committee of the Episcopate. He reported that the meeting had ended with a compromise, i.e. with a provision regarding the family in the form we know today, “which will prevent introduction of homosexual partnerships in the future” without the need to change the Constitution. Józef Zych, however, denied it, saying that he held no negotiations and he did not reach any compromise (quoted after wyborcza.pl). I will not comment on that.
A footnote to the opinion of the First President of the Supreme Court about the civil partnerships bill authored by Civic Platform deputy Artur Dunin, said that “[from] the comments of the members of the Constitution Committee of the National Assembly it was clear that the wording of Article 18 of the Constitution was aimed at preventing institutionalisation of same-sex partnerships” and it was recognised as “satisfying the demands of the Episcopate” (footnote 3). It is, however, worth pointing out that the argument from preliminary drafts may only be considered complementary. Linguistic interpretation is not the only one available. One may not interpret a legal text against its literal wording by referring to preliminary drafts to a mysterious compromise with the Episcopate. If the rights and freedoms of individuals, rather than by the wording of the Constitution, were decided upon by the alleged intentions of some of its authors, we could not claim to live under the rule of law. In addition, if the authors of the Constitution feared institutionalisation of civil partnerships already in 1997, then “meeting the needs” of the Episcopate would probably take the form of a clear prohibition to introduce civil partnerships.
Another argument quoted to support the proposition that Article 18 of the Constitution excludes institutionalisation of civil partnerships is the one that “[i]t is constitutionally preferred that a family be formed by marriage” (quoted after the opinion of the First President of the Supreme Court). Janusz Piechociński from the Polish People’s Party (Polskie Stronnictwo Ludowe, PSL) added that “[w]e will not allow this to legally reduce the preference for marriage and hamper the position of the family.” Preference is, however, not equivalent to care. Jan Woleński is right when he writes that “[o]ne can prefer something to something else but neither care nor protection assume that at all. Indeed, care and protection of A may assume preference of A to some B but this must be clearly stated”. The wording of the Constitution fails to state it though. Protection of marriage set forth in the Constitution means that one may not waive the protection of marriage understood as a union of a woman and a man and that it is necessary to provide marriage with legal protection. As accurately pointed by Wojciech Sadurski, it does not follow from the Constitution that the legislator may not deem some other unions to be able to benefit from a similar or even an equal status as the marriage protected by the Constitution.
Moreover, even if we assume there exists a constitutional preference for marriage, this does not automatically entail a prohibition to create alternatives in the form of civil partnerships. This would be similar to a situation where renting apartments and having a housing policy is forbidden to protect ownership. The preference may possibly be seen as a requirement to provide marriage with the widest scope of rights (as indicated by Professor P. Winczorek). If the balance between the institution of civil partnership and marriage is positive for the latter, then everything is (constitutionally) fine.
Offering a “third way” that consists in abandoning the idea for an act institutionalising civil partnerships and pursuing the concept of amendment of some acts may appear rational. However, such a concept originates from an interpretation of the Constitution that is far-fetched, illogical or even conjured. At the same time, it is unjustified as it is based on the Constitution-defying assumption of the lack of legal protection of family understood in a way different than a traditional marriage.