The Constitutional Battle for Intimacy

Chapter III.3. introduced some of the cases regarding the legalization of intimacy in Mexico City. These cases showed the constitutional conflict generated by the legalization of same-sex matrimony with the amendment of the Civil Code in Mexico City. Now that intimacy has been analyzed from a constitutional and a human rights perspective, the constitutional battle for intimacy can be revisited. This battle has two parties, the Legislative Assembly of Mexico City (with a left-wing majority) and Mexico’s Attorney General (representing the Federal Government by the ruling conservative party.) Exactly one month after the Legislative Assembly (LAFD) passed the bill that allowed same-sex couples to get married; the Attorney General filed a Motion of Unconstitutionality.⁹³ With this measure, the Mexican Supreme Court had the jurisdiction to solve the dispute and to determine whether that bill was valid or not. This triggered a national debate around the rights of same-sex couples for intimacy and adoption. Supreme Court Justice Sergio Valls was nominated to manage the case, and unofficially, the Motion of Unconstitutionality 2/2010 was called the “Valls Project.”

Attorney General v. Legislative Assembly of the Federal District and Mayor

The Attorney General (AG), Mr. Arturo Chavez, justified the motion of unconstitutionality according to five premises:

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93 According to Art.105.II.C MexCon.

a. The Legislative Assembly did not justify the need to pass the bill. The AG argued that the LAFD was obliged to justify and motivate its legislative acts as described in Art. 16 of the Constitution.

b. This legislation damages the ideal [heterosexual] family model. The AG claimed that Art. 4 protects a heterosexual type of family formed by a husband, a wife, and children. Therefore, matrimony between same-sex partners violated this constitutional guarantee.

c. Adoption by same-sex couples damages and discriminates children. The AG declared that the rights of children were not protected if adoption was available for sex spouses. He mentioned that children adopted by same-sex parents would not find an appropriate environment for their development, and would be disadvantaged in comparison to children raised by opposite-sex parents.

d. It diverts the federal order, with the recognition of same-sex matrimony in the entire country. The AG was preoccupied, because civil acts recognized in one state must be recognized by all other states in the federation, as stipulated in Art. 121. IV.

e. It violates the constitutional normative hierarchy. The AG considered that the LAFD had attempted to override the constitutional supremacy with a legislation that was beyond its powers.

On February 23, 2010, in response to the motion submitted by the AG, the LAFD submitted a report before the SCJN.⁹⁴ Maria Alejandra Barrales Magdaleno was the President of the Governmental Commission in charge of this defense. The fifty-five-page report was very comprehensive and it was divided into three sections, each of them presenting counterarguments for the AG’s allegations. The report described the motivations of the LAFD to pass this bill, but also, it informed the SCJN of the situation around homosexuality and same-sex matrimony in general, including comparative law.

Section I. The AG challenged Art. 391 CCFD in Motion 2/2010. Nonetheless, as pointed out by the LAFD, the article was not amended. The LAFD had originally

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94 LAFD V Legislature. Report 2/2010. Maria Alejandra Barrales Magdaleno. Mexico City: CIDE, February 23, 2010.

planned to change this article to limit adoption for same-sex couples. The legislators had thought that it would have been easier to pass a bill allowing same-sex marriage if the bill banned adoption for same-sex spouses. At the end of the debate rounds, the legislators decided to go ahead with the whole package, allowing same-sex partners not only to get married, but to adopt children as well. Therefore, the AG’s arguments against Art. 391 could not be assessed by the SCJN because they lacked a foundation;

there was no amendment to judge.

Section II. This part of the report is by far the largest; it provides the SCJN with an extensive analysis on the issue of homosexuality. The study included the criminal repression of homosexuals in the nineteenth and twentieth century in Europe and in Mexico, using examples such as the trials of Oscar Wilde and theories of Michel Foucault; the pathologization and stigmatization of homosexuality; and the persistent stigmatization of homoparental adoptions. The report cited the official opinion of the American Association of Psychiatry in 2002:

“Numerous studies over the last three decades consistently demonstrate that children raised by gay or lesbian parents exhibit the same level of emotional, cognitive, social, and sexual functioning as children raised by heterosexual parents. This research indicates that optimal development for children is based not on the sexual orientation of the parents, but on stable attachments to committed and nurturing adults. The research also shows that children who have two parents, regardless of the parents’ sexual orientations, do better than children with only one parent.”⁹⁵

Furthermore, the LAFD argued that after the years of repression, homophobia is now on a second phase trying to disguise homosexuality, with actions like those of the Attorney General. The arguments in the report directly accused the AG of homophobic behavior, with his attempt to position homosexual individuals as second-class citizens using authoritarian techniques whose purpose is to keep the balance in favor of heterosexuality.

Moreover, the LAFD affirmed the constitutional rights to equality and to freedom of speech. Quoting the South African Constitutional Court, the LAFD stated

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95 Ibidem, p. 10.

that the evolution of science and constitutional transformations now lead to the recognition of homosexuals as subjects of rights, not as objects of injuries, persecution and stigmatization. Consequently, matrimony between same-sex partners is a part of the right to equality and non-discrimination. It adds, excluding same-sex partners from the institution of matrimony deprives them of their constitutional protection for the organization and development of the family as detailed in Art. 4.

This hypothesis was supported with jurisprudence in comparative law.⁹⁶ The LAFD perceives matrimony as an expressive conduct as well. Thus, protected by the constitutional guarantee to freedom of speech in Art. 6 as a spiritual liberty. The symbolic dimension of matrimony falls within the scope of freedom of speech because individuals can express their love and commitment publicly.⁹⁷ This very liberty contributes to the free development of an individual’s personality, also defended by the SCJN in the Constitutional Injunction 6/2008.⁹⁸ The LAFD considers that recognizing this freedom of speech for persons who have sexual preferences different to those of heterosexuals regarding matrimony must be interpreted as a constitutional imperative due to its importance in the democratic debate in a pluralistic and diverse society. The report criticized the declarations of Catholic Cardinal Norberto Rivera, who openly expressed his dissent and constantly used a rather aggressive and offensive language to condemn the legislation passed by the LAFD.

Section III. This final section responded directly to every allegation in the strict order of the AG’s submission.

a. The LAFD reiterated there was no violation of Art. 16, legislators must not justify their acts in this matter, because this legislation grants individuals more rights. They would have justified a legislation that would deprive citizens of their rights, but considering they were recognizing and legalizing a right to

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96 Minister of Home Affairs and Another v Fourie et al (Doctors for Life International and Others, Amicus Curiae) (CCT 60/04); Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others (CCT 10/05), South Africa, December 1, 2005.; Stan Barker et al. v. State of Vermont, 170 Vt. 194, 744 A.2d 864 (1999), United States.

97 The report made a reference to!Halpern et al. v. Attorney General of Canada et al., Ontario Appeals Court, Canada, June 10, 2003.!

98 Constitutional Injunction 6/2008. Regarding the amendment of a birth certificate for a transsexual individual. Lead Justice: Sergio Valls. January 6, 2009.

marry one’s partner without gender discrimination, the justification is not necessary, but rather evident.

b. Although the AG claimed that the constitution protected a heterosexual concept of family, the LAFD sustained that Art. 4 protects all types of family, there is no explicit definition of the term and therefore, its broadest protection for individuals is applicable, not limiting the interpretation of that concept to opposite-sex constellations.

c. Regarding adoption in connection with matrimony, the LAFD pointed out that the AG had not demonstrated how children adopted by a homoparental matrimony would prejudice a child’s welfare. This allegation was unfounded and did not rely on any empirical research unlike the argument the LAFD used with the survey of the American Association of Psychiatry. Also, the LAFD was not obliged to justify the effects on children of homoparental matrimonies, because the legislation did not change any provision regarding adoption. The LAFD detailed Arts. 20 and 21 of the Convention on the Rights of the Child and jurisprudence of the European Convention on Human Rights.⁹⁹

d. The LAFD demonstrated that according to the jurisprudence of the SCJN, civil acts celebrated in one state must be recognized in all states even if they contradict an internal regulation of that state. There is no conflict of laws in this case, because the civil act is celebrated within the jurisdiction of the Federal District and it is only the recognition of that act that must be acknowledged by other states, but they are not involved in the process of the civil act.

e. According to the line of arguments submitted in the report, there is no violation of Art. 133 and the constitutional supremacy is recognized and respected by the LAFD. The AG, with the premise that the legislation was in conflict with Art. 4, argued the supposed violation of that article in its definition of a family. However, as explained in (b), there is no contradiction because that article does not constrain the definition of the concept of family in the constitution. Therefore, the LAFD admits the constitutional supremacy at all times.

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99 E.B. v. France (Application 43546/02), January 22, 2008, and Karner v. Austria (Application 40016/98), October 24, 2003.

The Valls Project concluded that matrimony by same-sex spouses in Mexico City was constitutional. The decision by the court ratified that the legislation had been enacted by the LAFD within the scope of its faculties. This decision supported the bill and recognized the validity of same-sex matrimony in the entire country. In addition to solving the Motion of Unconstitutionality 2/2010 submitted by the Attorney General, Justice Sergio Valls asked the National Autonomous University of Mexico (UNAM) to prepare an amicus curia report regarding the matters challenged by the AG. That ad hoc report concluded that legalizing same-sex marriage could have a positive effect in the Mexican society, contributing to fight intolerance, segregation, violence, discrimination and homophobia. Also, the UNAM found out that biological or adopted children with homoparental households had little or none psychological or social impact in comparison to children raised by heterosexual parents. Justice Valls decided to expand the project and, although Art. 391 CCFD had not been amended;

he submitted a proposal before all Justices to pronounce the opinion of the court regarding adoption by same-sex spouses. Subsequently, a couple of days after the defense of the legalization of same-sex marriage, the SCJN declared that adoption by same-sex matrimonies was also constitutional.

IV.5. Conclusion

This Chapter has presented the fundamental rights around intimacy, including the constitutional analysis, the human rights issues and the international and comparative perspective on this matter. Privacy is protected by the individual guarantees in the Mexican Constitution; as explained before, the jurisprudence has determined that this constitutional protection of privacy includes the protection of intimacy as well.

Specifically, this can be found in Articles 6, 7, 10 and 16. The difference between privacy and intimacy was established with the analysis of the SCJN jurisprudence.

These 96 cases handling the issue of intimacy have reaffirmed the contemporary relevance of intimacy and the different connotations of these concepts. The definition introduced by Justice Olga Sanchez serves as a reference in the decision-making process for the court, although it has not been consolidated as a doctrine. The rank of privacy and intimacy with regard to other constitutional rights has been determined in the domains of the due process cause, visitation rights, alimony and warrants. In order to understand the difference between privacy and intimacy, it was important to

include this research’s approach with the three layers of privacy. The interpretation of intimacy in its dyadic form can be best identified while taking into account that there is an intrinsic privacy of individuals, that there is a shelter and an atmosphere of privacy where intimacy exists as a bridge that links the intrinsic privacies of two persons. Understanding this difference and the connection between these two concepts is fundamental in the analysis of intimacy. Moreover, the human rights survey of intimacy lead this research to the particular study of recent constitutional amendments, to international treaties ratified by Mexico and to case-law in the United States that is relevant for the deeper comprehension of intimacy. The most important change with the constitutional amendments of June 2011 is that it gives international treaties and jurisprudence the same rank as direct constitutional law. This development now allows individuals to submit constitutional injunctions based on a broader spectrum of rights at a national and international level. Also, the changes include a more gender-neutral language and wording that reflects the intention of the legislators to evolve towards a more impartial legal system in terms of gender equality.

All the international treaties that were reviewed in this chapter talk about a right to privacy and a right to form a family. However, they lack a specific right to intimacy.

Even though it is clear in the jurisprudence that intimacy lies within privacy, the right to intimacy per se as a separate right still remains to be developed.

The U.S. case-law detailed here has provided a comparative example of the debate around intimacy, from the marital protection of intimacy in Grisworld, to the right to abortion in Roe and the liberty of sexual practices in Lawrence. These cases confirm and support an individual’s right to privacy and intimacy. However, the ideas discussed in this chapter were best characterized by the constitutional battle for intimacy in the case of the Attorney General of Mexico v. the Legislative Assembly of Mexico City. The SCJN has now endorsed same-sex marriage in Mexico City and, voluntarily, adoption by same-sex couples. The first phase of this process, ratifying the current Mexico City law, has enabled the possibility of a second phase in the evolution of the legalization of intimacy in Mexico: the acknowledgement that same-sex matrimony is constitutional can lead the SCJN to the conclusion that banning same-sex matrimony in the rest of the country is, thus, unconstitutional. Just the mere fact the same-sex matrimony has ben legalized in Mexico City confirms that the

Mexican legal system has the capacity to legislate in intimacy-related issues in general, and specifically, to modify the current status of intimacy.

The contemporary legal reality of intimacy can and will eventually have to be changed, because the current trend within Mexico and at an international level is now demanding it. These changes are necessary not only for political purposes, but rather as an improvement in human rights conditions. Again, quoting the words of former U.S. Secretary of State Hillary Clinton, gay rights are human rights and human rights are gay rights. The urgent recognition and legalization of same-sex intimacy is a human rights issue that cannot be ignored anymore by any democracy in the twenty-first century.

In addition to the legal approach to this matter, there are different perspectives in the debate about intimacy and marriage. So far, this research has made an emphasis on the law of the Civil Code in Chapter III, and the Constitution, International Treaties and Jurisprudence in Chapter IV. With this solid legal basis, it is also important to evaluate the debate from other, rather social points of view, such as:

political parties, political actors, interest groups, activists, gender and religion. They cannot be disregarded in this research, because they are the catalysts of the eventual legal changes that can be produced. These stances require an extensive and inclusive review; therefore, they will be discussed in detail in the forthcoming pages.

V.1. Introduction

A deeper reflection on legislative processes will lead us to the conclusion that the legal is political and the political is legal. At some point, it becomes rather difficult to draw a line between a legal and a political or sociological phenomenon taking place, because both of them are the same.

In this context, it is crucial to analyze different perspectives on the issue of intimacy. In Chapter II, the question of intimacy was introduced. It included the conceptual framework, the analysis of discourse, the spheres of intimacy and the structures of intimacy. The following chapter reviewed the evolution of legal intimacy in Mexico, going through the different spheres and structures as they are identified in Mexican Law. Chapter IV provided a constitutional examination of intimacy in its relationship with human rights, at a national and international level. Now, it is quite relevant to discuss the diversity of perspectives and approaches to intimacy that end up influencing lawmakers and lawmaking in general. These perspectives are developed with different ideas regarding sex, gender, laicism, religion, justice, human rights and state intervention. In this chapter, these components will be explored in connection with the legalization of intimacy.

First of all, it is important to study the relevance of conservatism and religion in Mexico, including the Catholic Church, the Prolife Movement and the Conservative party in Mexico that has controlled the federal government for over a decade. Their ideas have an impact on the legalization of intimacy in Mexico. Second, a review of the issue of gender will go over feminism, masculinities (in plural), gay and queer. In this section, it will be important to understand the concept of heteronormativity, the idealization of heterosexual paradigms, and how it permeates the legalization of intimacy. The notion of heteronormativity will also help us understand what will be described as the fallacy and algebra of gay marriage, and the paradox of privacy. This formulation of gay marriage would ask gay activists the following question: Do you really want gay marriage? The net effect of gay marriage is not necessarily equality. The claim for equal rights can be misleading in this sense.

V.ARAINBOW OF PERSPECTIVES:RECONSIDERATIONS ON LAW AND GENDER

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Third, after the discussion on gender, the obstacles of legalized gender will be identified easily. This comprises the requirements for birth certificates and marriage licenses and provisions for transsexuals. Furthermore, this subsection will relate the case of Quintana Roo in the legalization of intimacy; a rather unexpected case of a

Third, after the discussion on gender, the obstacles of legalized gender will be identified easily. This comprises the requirements for birth certificates and marriage licenses and provisions for transsexuals. Furthermore, this subsection will relate the case of Quintana Roo in the legalization of intimacy; a rather unexpected case of a