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Czech Constitutional Court ruled out the possibility of concluding 'same-sex marriage' and homoadoption

Published: 25.08.2021

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The Constitutional Court of the Czech Republic ruled that the constitution excludes the legal possibility of equating civil partnership with the institution of marriage understood as a union between a woman and a man.

This is in response to the ongoing work in the Czech Parliament on a law on so-called marriage equality, which aimed to introduce 'same-sex marriages'.

The Constitutional Court also ruled that the Czech constitution does not allow same-sex couples to adopt children. Back in 2015, this court ruled out the possibility of adoption by couples other than married couples.

Thus, the Constitutional Court ended the state of uncertainty that had arisen in connection with the decisions of the common courts, which had ruled several times in favour of the possibility of adoption by civil partnerships.

The judgement is also a message to the European Commission, which recently proposed to impose an obligation to recognise same-sex parenthood, despite the Union's lack of competence to regulate this issue.

The Czech Constitutional Court ruled as far back as 2006 on the essentially superior role of the Czech constitution over EU law.


The Constitutional Court of the Czech Republic, addressing the doubts raised by the common courts, ruled that under the Czech constitution, there is no legal possibility for same-sex couples to adopt children. Czech law allows adoption only by married couples, which, according to the constitution, can only be entered into by a man and a woman. These adoption law regulations are dictated, according to the court's reasoning, by concern for the child's welfare and the scientifically proven better psychosocial growth of children raised in homes with both male and female role models. Back in 2015, the same Constitutional Court rejected the possibility for unmarried couples to adopt children and argued at the time that such relationships were less stable. In the current ruling, it reiterated that 2015 judgement. The court also reiterated that it was necessary to prioritise the best interests of the child.


In connection with the draft in the Czech parliament aimed at introducing so-called marital equality, and thus leading to the implementation of the institution of 'same-sex marriage' in the Czech Republic (the institution of a civil partnership has been operating in the Czech Republic since 2006), the Constitutional Court also recalled that the Czech constitution does not provide the possibility of equating any other form of relationship with marriage understood as a union of a woman and a man. As in Poland, in the Czech Republic the institution of marriage remains under constitutional protection.


The judgement of the Czech Constitutional Court is also very important in the context of the European Union's increasingly unlawful attempts to interfere in the family law of member states. In April 2021, the European Commission announced that it would begin working on a regulation on the recognition of parenthood between Member States. The preliminary assumptions of the document indicate that the regulation will aim to bring about the acceptance of adoptions conducted in another country by same-sex couples. Despite the fact that on the basis of the EU Treaties, family law is the exclusive competence of the Member States, the European Commission is planning a profound interference in the system of family law by forcing Member States to formally accept situations in which another state has recognised same-sex parenthood.


In its judgement, the Constitutional Court of the Czech Republic in principle leaves no other option than for the Czech Republic to veto the proposed regulation when the Council starts considering it. Due to the unanimity rule, one vote 'against' may lead to the rejection of the regulation.


As early as in 2006, the Czech Constitutional Court recognised that the recognition of primacy of EU law is only of conditional character (ref. Pl. US 50/0453), and in its judgement of 26 November 2008, it explicitly stated that the Czech Constitutional Court has the power to "issue final decisions and may adjudicate whether EU legal acts do not exceed the competences transferred to the Community bodies (ref. Pl.US. 19/08). The line of jurisprudence developed by the Czech Constitutional Court has also already been successfully used to challenge the CJEU judgement on the so-called Slovak pensions. 


'The Czech Constitutional Court recalled and confirmed the constitutional values on which the entire local legal and social order is based. Without a doubt, the verdict, which confirms the identity of marriage as a union of a woman and a man, the primacy of the child's welfare over the ambitions of adults, and the concern for the best conditions for the development of a young person is opposed to political correctness, is a very important step reminding us that we all live in a legal order that must be respected regardless of political trends. In view of the increasing attempts of the European Union to interfere with the family law of the Member States, this judgement should also be interpreted as an announcement of opposition to the violation of the Union's competences in this area', commented Anna Kubacka from the Center for International Law.

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