When the Constitutional Court Is No Longer a Non-Majoritarian Institution: Equality Litigation Before Common Courts in Poland

The political shifts in 2015 influenced Polish Constitutional Tribunal practices and determined its argued loss of non-majoritarian functions. The politicized CT began to act as an extension of the government. Instead of limiting the power of the parliamentary majority by advocating for minority rights, it was incorporated into the majority’s decision-making mechanism, itself posing a threat to values such as freedom and equality. Simultaneously, one can observe a non-majoritarian mobilisation of the common courts, which openly question the CT’s ability to adequately protect constitutional rights. While lacking the formal competence to carry out constitutional review, common courts have independently assessed the constitutionality of statutes and even interpreted them contrary to the CT’s constitutional interpretation. Some judgments issued under equality provisions, including those concerning LGBT+ persons are an important example of the described practice. Polish common courts apply these provisions in ways that are consistent with the interpretation of the Constitution by non-governmental organisations specialising in anti-discrimination law and taking into account the content and meaning of the EU equality directives. In doing so – unlike the CT – they contribute to the strengthening of minority rights protection. The discrepancy between the two institutions is analysed in the paper as a form of dissensus within the judiciary. This paper is a contribution to a Special Section that critically analyses the role of non-majoritarian instruments and institutions with respect to three challenges that shape contemporary democracies in Europe: socio-economic inequality and discrimination, growing authoritarianism, and the pressing climate crisis.