Certainly, one of the goals of this dissertation is to inform the reader of the current situation regarding the legalization of intimacy in Mexico. It is important to understand the real legal obligations and the limits of an individual’s liability before engaging in intimacy; however, to have a merely informative purpose would not be an ambitious objective. The arguments that will be introduced throughout this research are a reflection on the issues of intimacy, privacy, gender, sexuality, and human rights (among others); and they will enable any reader to develop a more critical reasoning for the analysis of these matters. Hopefully, a more informed opinion will prepare the ground for a more proactive attitude towards the legalization of intimacy. Because only a proactive reaction from individuals can catalyze change, and undoubtedly, many changes are necessary to fight the current discriminatory legislations that
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37 See in particular Chapter 6: Inness, Julie C. Privacy, Intimacy, and Isolation. New York: Oxford University Press, 1992, pp. 74-94.
38 Especially regarding the concept of intimacy. Prager, Karen J. The psychology of intimacy. New York: Guilford Press, 1995.
39 Supreme Court of Justice of the Nation (Mexico).!Constitutional Injunction 402/2007. May 23, 2007.
Case registration number: 171883.!
prevent many same-sex couples from engaging in intimacy; and those that create injustices within intimacy, even for opposite-sex couples. One of the most important intentions of this research is that when the reader comes to the end of this work, the concept of intimacy and the way it is regulated will have been understood. This applies to the specific case study of Mexico presented here, but it is also applicable in the broader international context. After this comprehension in depth, readers will be able to ask themselves; how they want to legalize their intimacy, whether they are doing it appropriately, or whether they want to engage in intimacy at all. In any case, it will be clear that individuals have the capacity and the right to determine and to define the rules for their own intimacy.
There must be a shift of paradigm in the legalization of intimacy. And changing these paradigms requires engaging all stakeholders, including legislators, judges, and the citizenry in general. As Cohen has pointed out: “Rather, from the perspective of the reflexive legal paradigm, determining the appropriate forms of regulating self-regulating of intimate association, and for which purpose, can become a topic of discussion. What must replace the moral (and medical) assessment of sex acts and object choice is an egalitarian morality of intimate relationships…Freedom of intimate association should go together with regulations fostering equality fairness and responsibility.”40 In other words, when it comes to legalizing intimacy, the current paradigm in contemporary societies is to regulate a formula or a prescription for intimacy that imposes a specific morality, based on generalized or “normalized”
ideas of acceptable sexuality, sexual practices, admissible family ties, idealized parenthood, and religious fundamentalism. Yet, one can only wonder, have these formulas really worked? They might have for some people, but they do not work for everybody. Individuals should be able to decide what they want for themselves and their intimate lives. This is the idea behind the paradigm shift in the legalization of intimacy; the legislations must be enacted in such a way that they include provisions that allow people to self-regulate their intimate behavior and rules. Only this way can individuals truly enjoy their privacy, equality and self-determination. This dissertation is also promoting this paradigm shift; as mentioned before, the conclusion in Chapter VI summarizes the ideas of this research and puts the methodology and theory into
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40 Cohen, Jean L. Regulating Intimacy: A new legal paradigm. USA: Princeton University Press, 2002.
pp. 114-115.
21 practice, suggesting a new proposal for the legalization of intimacy in the 21st Century.
The goal is to deliver this message at all levels, not only at the academic level, but also at the political and personal ones; because intimacy is not only an abstract and ethereal construct debated by academics, it has an impact in real life, and in individuals of all social classes, genders, cultures, ages, and backgrounds. The chapters to follow will show every aspect in the realm of intimacy, and particularly in its legalization, hoping that the hypothesis presented here will have a powerful and effective impact on the legalization of intimacy in present and future generations.
II.1. Introduction
Before the actual analysis of the legalization of intimacy in Mexico, it is crucial to discuss the question of intimacy. The four sections in this chapter will provide an insight into intimacy. First, the definition of intimacy will be dismantled in order to answer the following question: What is intimacy? Such a broad concept demands a deep analysis. Using a specific classification of connotations, the concept will be assessed at different levels. The contrast of fourteen different definitions of intimacy, including the one developed by this research, will clarify the interpretation of this word throughout the rest of the text. Second, a study of the discourse on sexuality and intimacy is necessary to be aware of the evolution of societies. The idea of the discourse of intimacy will be developed from the discourse of sex, predominantly using the discourse of sexuality observed by Michel Foucault, and the transformation of intimacy, as it is perceived by Anthony Giddens. This discourse analysis will situate the current debate on the legalization of intimacy within the contemporary epoch. Third, this chapter also includes the introduction of what shall be called the Spheres of Intimacy. The complexity of intimacy has been broken down into five different domains. These spheres of intimacy and their interaction will be analyzed individually. The emotional, moral, sexual, economic and constructive spheres will show how the legalization of intimacy affects more than one particular area of an individual’s personal and private environment. Fourth, it will be explained how intimacy and its spheres function within a specific structure, and such structures are called Structures of Intimacy. The description of the structures of intimacy will entail the definition of traditional marriage, same-sex or gay marriage, common-law marriage, putative marriage, civil unions, domestic or registered partnerships, and a biblical analysis of marriage. At the end of this chapter, it will be easier to grasp the essence of intimacy and to identify it in the subsequent sections of this thesis, because the legalization of intimacy cannot be understood if the concept of intimacy is not intelligible. In particular, the abstraction of the spheres of intimacy and the structures of intimacy is necessary to comprehend the issues that will be developed later on.
Both the spheres and the structures of intimacy will be used as tools of analysis for II.THE QUESTION OF INTIMACY
the legalization of intimacy. Therefore, beyond their theoretical or hypothetical inception, they will have a practical use in the following discussions.