Abstract

Heterosexuality of spouses determines marriage as an exclusive relationship of man and woman. The principle of heterosexuality of spouses is universally adopted as absolutely mandatory under Polish matrimonial law. However, Art. 18 of the Polish Constitution, explicitly defining marriage as a relationship of woman and man, does not exclude marriages of a different personal structure. The fact that this provision has been placed in the Constitution determines that the heterosexual marriage, family, maternity and parenthood are under a qualified, constitutionally guaranteed protection as compared with other forms. Therefore, it is a programme norm addressed to public authorities and substantiating the postulates to expand or not to lessen the level of protection. Neither from this norm nor from its placement arises any prohibition to grant legal protection to competitive or alternative relationships, both at the constitutional level and, all the more so, at the level of ordinary legal acts. However, there is still discrimination of people with respect to their sexual orientation in the Polish legal system. Such differentiation based solely on sexual orientation is inadmissible under the Convention for the Protection of Human Rights and Fundamental Freedoms. As one of the most intimate elements of private life of a person sexual orientation is protected under Art. 8 of the Constitution. When realising the rights and freedom guaranteed by the Convention Art. 14 of the Convention provides protection against discrimination of persons in a similar situation, applied without objective and rational justification. In light of the judgments of The European Court of Human Rights homosexual couples, just like heterosexual couples, can enter into stable, permanent relationships, and find themselves in a substantially similar situation to heterosexual couples as regards the need for legal recognition and protection. The fact that in the Polish system there is no institution protecting homosexual relationships constitutes a violation of Art. 8 of the European Convention on Human Rights.