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Why the Banning of Gay Marriage May Not Be Required by Islamic Legal Norms

Muslims and Same Sex Marriage

by FAISAL KUTTY

Can Muslims accept same-sex marriages?

This has been a thorny question since the first jurisdictions began legalizing same-sex marriage. It took on a new urgency in the wake of the Defense of Marriage Act ruling from the US Supreme Court last June. Now, the heat is on as state courts continue to strike down same-sex marriage bans.

Islamic law, as interpreted today, unanimously classifies same-sex sexual activity as haram (prohibited). Islamic law encompasses fiqh (from pre-modern times to contemporary times) as well the state sanctioned derivatives and laws. The prohibition is derived from the normative Islamic position that the institution of the family (preservation of which is one of the maqasid al Sharī’ah, higher objectives of the Sharī’ah) created through marriage is the only sanctioned avenue for sex. This policy objective is reinforced through comprehensive regulations found in classical fiqh, which is the human articulation of God’s will as expressed in the Sharī’ah.

Under this public policy guise, homosexuality — as well as extra and pre-marital sex — are all outlawed ostensibly because they threaten the narrowly defined institution of family. Indeed, even the sexual space within marriage is further restricted through prohibitions against bestiality, anal intercourse (liwaat), masturbation, necrophilia and other such conduct considered unnatural.

The prohibition of the homosexual act is traced back to the biblical teachings against sodomy. Despite the unanimity on the prohibition, there are major disagreements on the criminalization of homosexuality, its categorization and even the punishment it should attract, if any. Three of the four classical Sunni schools (Shafi, Hanbali and Maliki) classified liwaat as a hadd (serious crime against God with severe penalties including death) while the fourth (Hanafi) classified it as ta’zir (crime for which the state can exercise discretion in punishment).

A growing number of contemporary traditionalist sunni and Shia scholars including Shaikh Mohamed El-Mochtar El-Shinqiti and Zaytuna College’s Shaikh Abdullah Bin Hamid Ali — while affirming the immorality of the act — assert that there is no temporal punishment stated in the two primary sources of Islamic law, the Quran and the Sunna (teachings and sayings of the Prophet), for merely being homosexual. Prominet Iranian scholar Abdolkarim Saroush even notes that any persecution or discrimination on the basis of sexual orientation would be wrong.

Like the punishment for adultery and fornication, there is strong basis to argue, as many scholars have done, that the punishments are really for public indecency within the context of Muslim society. In fact, this is reinforced by the fact that even in the classical Muslim era, evidence of homosexuals in Muslim lands abounded but with minimal instances of prosecution. This may have been partly due to the combined effect of Islamic law’s strict evidentiary requirements and the prioritization and pre-eminence of privacy rights.

Though classical jurists deemed homosexual conduct immoral, they appear to have had a more sophisticated take on the issue. Shaikh Hamid Ali in his The Homosexual Challenge to Muslim Ethics, documents how some jurists attempted to understand those who behaved effeminately (mukhannath) based on whether it was innate or by choice. He quotes Shaikh Yahya b. Sharaf al-Nawawi (1277 CE) as writing that “there is no blame, censure, sin, or punishment on this type [one acting out of natural inclination] because he is excused by virtue of having no hand in that condition.”

Shaikh Ali also refers to classical jurist, Hafiz Ibn Hajar al-Asqalaini (1448 CE) who cited Imam Ibn Jariri al-Tabari (922 CE) to conclude, that when men exhibited feminine characteristics due to their innate nature then rather than being condemned they should be taught to gradually unlearn thisn, because they may have been created this way.

Islamic law did not seek to regulate feelings, emotions and urges, but only its translation into action that authorities had declared unlawful. Indeed, many scholars — including prominent 11th century jurist Abu Muhammad Ali Ibn Hazm — even argued that homosexual tendencies themselves were not haram but had to be suppressed for the public good.

Though not what the LGBTQ community wants to hear, it reveals that even classical Islamic jurists struggled with this issue and had a more sophisticated attitude than many contemporary Muslims. Moreover, such fiqh works offer Muslims some lessons on how to live with differences.

A case in point is a ruling by Shaikh Ibn al Qayim al Jawziya, a prominent Hanbali jurist of the 14thcentury, who was asked whether the Muslim state should ban the Zoroastrian institution of self-marriage whereby men were encouraged to marry their mothers and sisters. While affirming that this was unlawful and morally repugnant under Islamic law, Ibn al Qayim (a student of the puritanical Ibn Taymiyaa) ruled that the state could not ban this practice and that in fact the institution ought to be recognized under two conditions:

1) the matter is not brought to a Muslim court; and

2) the Zoroastrian community recognized self-marriage as a valid tradition.

Given the dynamism and sophistication inherent even in classical Islamic jurisprudence, it can be argued that there is plenty of room to accommodate differences within, particularly in a secular liberal democratic context. To make it workable though, both sides of this debate need to understand the other.

The question is not about legalizing sex outside of traditional marriage. That ship sailed long ago. It left the port with the sexual revolution, and sailed off with the Supreme Court’s decision in Lawrence v. Texas; which effectively legalized consensual sex among adults. Moreover, considering that most Muslims have no problem extending full human rights to those – even Muslims – who live together “in sin” (both homosexuality and sex outside of marriage is referred to as indecent – fahisha in Islamic law), it seems hypocritical to deny fundamental rights to same-sex couples. Moreover, as Mohamed Fadel points out, this is not about changing Islamic marriage (nikah), but about making “sure that all citizens have access to the same kinds of public benefits.”

Similarly, same-sex advocates must accept that others cannot be forced to approve of what they sincerely believe is wrong. They can demand full constitutional entitlements, but not the right to dictate or interfere in the religious dogma of others. The essence of religious freedom is that individuals and communities must have freedom to determine their core doctrinal beliefs and they must be tolerated in the public sphere. As Ronald Dworkin says:

“We can’t ask people to set aside their most profound convictions about the truth of deep moral and ethical issues when we are also asking them to make…the most basic and fundamental moral and ethical decisions…”

Faisal Kutty is an assistant professor of law at Valparaiso University Law School and an adjunct professor of law Osgoode Hall Law of York University in Toronto. Follow him at Twitter@FaisalKutty.