Towards a dialogue on Muslim same-sex unions

- by Dr. Junaid bin Jahangir

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As in Christianity and Judaism, there has been a shift in the Islamic position on ‘homosexuality’. Archbishop Desmond Tutu has said that he would not worship a homophobic God. Likewise, Rabbi Harold Schulweis has stated that the counsel of celibacy is contrary to the Judaic affirmation of sexuality.

In Islam, US based Imam Suhaib Webb has expressed regret on his referral to a reparative therapy group and argues against the discrimination of gay congregants. Likewise, Sudan based Sheikh Hashim Al-Hakim has indicated that while, he used to be hard against homosexuals, he has ‘learned to respect their humanity’. US based Imam Johari Malik has said that ‘It’s time to get past our homophobia to help human beings’.

In contrast to traditional Muslim views, several church denominations and synagogues bless same-sex unions. However, Muslim discourse is not shaped by alternative voices in the Judeo-Christian tradition. Groups like Muslims for Progressive Values work towards supporting Muslim LGBTQ rights. However, in contrast to Judaism and Christianity, the discussion on same-sex unions in Islam is fairly recent.
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• Orientation

Traditional Muslims believe that any homosexual conduct is prohibited. Several Muslim medical professionals argue that homosexuality was declassified as a disorder due to pressure from gay activist groups. However, Rabbi Gershom Barnard indicates that medical opinion gradually evolved from hormonal treatment to psychoanalysis to behavioral conditioning to saying that there is no treatment to finally indicating that there is nothing to treat.

Professor Hashim Kamali of the International Institute of Advanced Islamic Studies in Malaysia has stated that both Islamic jurisprudence and science confirm that sexual orientation is inherent. Dr. Qazi Rahman from the University of London and co-author of the book ‘Born Gay: the Psychobiology of Sex Orientation’ also affirms the innateness of ‘homosexuality’.

According to Dr. Bassem Nathan, three medical opinions existed among medieval Arabs. According to one school of thought, ‘homosexuality results when the maternal sperm prevails over the paternal sperm’. Like Al Razi (d. 925 CE), the Nestorian Christian Hunain Ibn Ishaq (d. 873 CE) and the Melkite Christian Qusta Ibn Luqa (d. 912 CE) also subscribed to the view that ‘homosexuality’ was an inherent trait. 

According to Dr. Sahar Amer, Al Kindi (d. 873 CE) and Ibn Masawayh (d. 857 CE) respectively stated that ‘lesbianism’ was explained on the basis of physical traits and exposure to the effects of certain foods during infancy. In contrast, traditional Muslims reject the prevailing psychiatric view of homosexuality and reference the works of reparative therapy groups.  It is striking to note that reparative therapy groups offer suggestions that include a ‘Dad exposing his penis to his young son in the shower’.
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• Promiscuity, anal intercourse, fatal diseases, alcoholism  and celibacy

Traditional Muslims attribute suicidal behavior to ‘homosexuality’ rather than societal prejudice. They associate fatal diseases with ‘homosexual behavior’, specifically understood as male anal intercourse, rather than promiscuity. They allude to the statistics on HIV infections among ‘MSM-men who have sex with men’ and indicate that ‘homosexuality’ leads to ‘fitna-social chaos’.

In contrast, dissenting Muslims distinguish between orientation and the act of ‘anal intercourse’. They indicate that anal intercourse, while strongly disliked, is permissible with the wife’s consent in Shia jurisprudence. Furthermore, they indicate that while many heterosexuals indulge in the act, many monogamous long-term gay couples do not have anal sex.

Dissenting Muslims also distinguish between gay men and the ‘MSM’. The latter are occasionally heterosexuals, who indulge in homosexual acts for financial reasons or because of lack of access to women in prisons or in gender segregated cultures. According to Nadya Labi, writer of ‘The Kingdom in the Closet’, a Filipino expatriate in Saudi Arabia indicated that Saudi men stop calling him for sex after their wives are no longer pregnant or menstruating.

Dissenting Muslims indicate that we do not erroneously associate high AIDS cases in Sub Saharan Africa with heterosexuality. They state that HIV and other diseases should be associated with stigma and promiscuity rather than orientation. However, traditional Muslims analogize ‘homosexuality’ with alcoholism and prescribe celibacy to homosexuals just as they prescribe self control to alcoholics. They view ‘homosexuality’ as a test of life justified by a great reward in the Hereafter. In contrast, the 14^th century mystic poet Hafiz stated that ‘not even seven thousand years of joy can justify seven days of repression’.

Dr. Abdul Azeem Abozaid and Dr. Asyraf Wajdi Dusuki indicate that the Sharia provides alternatives in lieu of a prohibition. They allude to the permissibility of ‘Nikah-marriage’ in lieu of adultery, many food and drinks in lieu of pork and wine and many trade based contracts in place of usury and gambling. However, no such substitute exists for gays and lesbians. Thus, dissenting Muslims argue that it would not be appropriate to create an analogy between a basic intimacy need and craving for a liquid for which exist many alternatives.

Dissenting Muslims further argue that celibacy is a value foreign to Islam. They indicate that Islam, like Judaism, acknowledges basic intimacy needs and affirms a legitimate avenue for their expression. They also warn of ‘fitna-social chaos’ in the absence of a legitimate avenue for sexual expression. The Rabbis, who wrote for the Committee on Jewish Law and Standards on homosexuality, state that many celibate clergy have found it impossible to fulfill their vows.

However, traditional Muslim scholars caution young Muslims against making homosexual behavior compatible with Islamic teachings. In contrast, Rabbi Schulweis states that the ‘Jewish law was not instituted to make life miserable’ and that denying intimacy to innocent people would violate his Jewish sense of fairness and compassion.
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• Jurisprudence

Traditional scholars are bound by a forbidding legacy that either prescribes flogging or the capital penalty for ‘liwat-male anal intercourse’. These punishments were either based on analogizing ‘liwat’ with fornication or on texts that were discredited by several jurists like Imam Abu Hanifa and Ibn Hazm as inauthentic. Contemporary Muslim scholars like Sheikh El-Shinqiti also reject these narratives based on the doubts raised by Bukhari, Muslim and other Hadith experts.

Rejecting the analogy with fornication, these jurists suggested a ‘tazeer-discretionary’ penalty by equating ‘liwat’ with other sexual conduct. However, the absence of correction for constitutional homosexuals and the absence of consent in analogizing ‘liwat’ with bestiality and necrophilia limits the scope of any discretionary penalty. As such, some contemporary Muslim scholars like India based Asghar Ali Engineer, Maulana Abu Zafar Hassan Nadvi and Maulana Zaheer Abbas Rizvi are prone to the decriminalization of ‘homosexuality’.

Several past scholars like Imam Abu Hanifa, Ibn Taymmiah and Al Razi assumed that ‘liwat’ was a one-sided conduct. They reasoned that in the absence of disease or financial reasons, the passive partner does not desire ‘liwat’ as it results in hatred and humiliation. However, Archbishop Tutu questions any reason to deny that homosexual love leads towards compassion.

Professor Scott Kugle distinguishes between ‘liwat’, a later juristic term, and ‘amal qaum lut-actions of Lot’s people’, which is associated with apostasy, highway robbery and rebellion in some texts that allude to the Companions. This further emphasizes that any homosexual conduct was viewed as non-consensual by past authorities.

Acknowledging such limitations, some traditional Muslims argue on the basis of the ‘awrah-nakedness’ texts or verses 4:15-16. However, the ‘awrah’ texts are as irrelevant to ‘Nikah-marriage’ as verses 4:15-16, by scholarly unanimity, are for homosexual conduct.
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• Qur’anic Analysis

While addressing ‘liwat’, the Muslim tradition does not deal with the anachronistic issue of same-sex unions. Nonetheless, the eventual arguments used to prohibit same-sex unions are based on the verses on Lot’s people and verses 23:5-7 on ‘Hifz Furuj-guarding private parts’.

Based on a holistic contextual analysis, dissenting Muslims argue that the verses on Lot’s people refer to acts of coercion and inhospitality. They argue that the part ‘you approach males and commit highway robbery’ in verse 29:29 refers to coercion. Whereas, the part ‘Have we not forbidden you from (entertaining) others?’ in verse 15:70 refers to inhospitality.

The part ‘we have no right on your daughters’ in verse 11:79 also emphasizes coercion over orientation as the word ‘Haqq-right’ has been used in lieu of the word ‘Irba-desire’. In the context of verse 7:80, Ibn Katheer mentions that Lot’s people invented deeds unfamiliar to men and other creatures that existed before them. In contrast, historical record places homosexual conduct in Bronze Age Mesopotamia (3000 BCE), Stone Age Brazil (12,000 years ago) and several continents in the Paleolithic Age prior to the time of Lot’s people (1800 BCE or 2300 BCE).

In contrast, some Muslims argue that the phrase ‘ma sabaqakum-none preceded you’ in verse 7:80 serves to emphasize the gravity of the crime of Lot’s people. As such, they disagree with the understanding of Ibn Katheer and other commentators on verse 7:80.  Likewise, dissenting Muslims indicate that these verses are not referring to constitutional gays but sexual violence committed by, to borrow Ronnie Hassan’s words, “a lunatic fringe of humanity”.

Dissenting Muslims substantiate these arguments by secondary texts, which, according to Professor Kugle, are relatively difficult to forge. These texts that provide the context for the conduct of Lot’s people appear in ‘Tarikh Tabari’, ‘Qisas Al Anbiya’ and the ‘Jalalyn Tafseer’. Of the various texts, three are reproduced below as examples.

[Lot’s people] said: make it your tradition that if you take a stranger in your country, you penetrate him, and make him pay four Dirhams.  People will not come to your place if you did that.  (Tafsir Jalalyn)

Greed and miserliness bid them follow its call, to the extent that if any strangers stopped to ask for their hospitality, they would rape them (fadahahu) without sexual need, in order to dishonor them. They persisted in this behavior until they began to search out men and force themselves on them. (Qisas Al Anbiya by Al Rawandi)

[Yunus à Ibn Wahb à Ibn Zayd]: Concerning God’s statement, “And you commit abominations in your meetings”, their meetings were the assemblies, and the abomination was their disgusting act which they would perform. They would accost a rider and seize him and mount him. (Tarikh Tabari)

Based on a linguistic analysis, dissenting Muslims argue that the phrase ‘atatoona ldhukrana-approaching males’ in verse 26:165, traditionally understood as consensual homosexual conduct, refers to coercive action. They argue that the verb ‘atatoona’, based on Edward Lane’s Lexicon, also connotes the meanings of ‘pursue’, ‘hasten’, and ‘the act of propelling or impelling – particularly of an arrow from a bow’.  Whereas, based on Lisan Al-Arab, the noun ‘ldhukrana’ connotes a non-receptive entity in contrast to the noun ‘untha-female’ that connotes a receptive entity.

As such, Dr. Hussein Abdul Latif argues that in Classical Arabic usage, consent is assumed to exist between a male and a female. However, such implicit consent is assumed to be absent between males. This substantiates reading the phrase plausibly as ‘pursuing non-receptive entities’. France based Imam Tarek Oubrou has confirmed that the Qur’anic narrative on Lot’s people depicts ‘violent sexual relationships’. Likewise, Dr. Youssef Seddik writes in ‘We never read the Koran’ that ‘homosexuality’ is not forbidden in the Qur’an.

Based on Dr. Khaled El-Rouayheb’s work, scholars like Ibn Hajar Al-Haytami (d. 1566 CE) and Abd Al-Baqi Al-Zurqani (d. 1688 CE) walked a thin line on non-penetrative sexual conduct. The Rector of Al Azhar, Shaykh Muhammad Al-Hafni (d. 1767 CE) summarized the contrasting opinion of the scholars for the permissibility of ‘liwat’ in Paradise.
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• Revisiting Jurisprudence

Dissenting Muslims argue that verses 23:5-7 that confine legitimate sexual relations between opposite gender spouses are open to exceptional cases. They allude to past jurists who allowed ‘khuntha mushkil-intersexuals’ to marry based on their inner constitution.  According to the Kuwaiti Encyclopedia of Fiqh, the Hanbali jurist Al-Kharqi reasoned as follows.

‘If he [khuntha] said that he is a man and that he desires women, then he can do it [marry a female].  If he said that he is a woman and he desires men, then he can do it [marry a male].  This is because only he can decide and no one other than him can decide this.  So, his word is accepted as the word of the woman is accepted on menstruation.  He, the Khuntha may know himself according to the desires as he sees which of the two sexes he desires.’

These Muslims eventually reference the juristic framework of ‘maslaha-public interest’ and ‘darura-dire necessity’ to argue for Muslim same-sex unions. The Shafi’i jurist Shihab Al-Din Ahmad Al-Ramli (d. 1550 CE) is recorded to have stated that kissing the object of one’s affection was a duty if in line with the then medical theory such frustration would contribute to the lover’s death.

In contemporary times, the European Council for Fatwa and Research, while recognizing usury as a major sin, allow for home mortgages on the principle of equating ‘Hajah-need’ with ‘darurah-dire necessity’ and restrict this ‘rukhsa-facility’ to those Muslims in a real need for a house. Likewise, Sheikh Hashim Al-Hakim implicitly uses the ‘darurah’ framework when he states that if ‘homosexuals’ are to continue, they must practice safe sex to avoid harm.

Traditional Muslims may reject the scope of ‘aql-reason’ and such juristic frameworks by associating them with ‘hawa-desire’. They argue that the ‘necessity trumps prohibition’ maxim might apply to consuming pork but not sexual conduct. However, dissenting Muslims appeal to a higher ethic based on the Prophet’s teachings.

They emphasize the Prophet’s words paraphrased as ‘do not harm and accept no harm’, ‘wish for your brother what you wish for yourself’, ‘when some Muslims hurt other Muslims ache’, ‘facilitate, do not cause difficulties or cause people to detest the law’ and ‘do not fall into extremities but seek the middle path’.

US based Dr. Emran El-Badawi paraphrases Egyptian scholar Gamal Al Banna as stating that ‘Imam al-Shaf’i was great, but I am greater than him, because I learned from him and I have the benefit of centuries’ worth of knowledge beyond him’. Given our increased knowledge of sexual orientation and the injustice of condemning people to celibacy, the issue of gays and lesbians deserves to be revisited with a renewed perspective. As such, Netherlands based Imam El-Ouazzani and Spain based Abdennur Prado, President of the Junta Islámica Catalana, have indicated to make the issue more debatable.

In 2006, based on human dignity, Conservative Jews sanctioned same-sex unions. Their reasoning included a reference to Rabbi Eliezer’s quote that ‘Let your neighbor’s dignity be precious to you as your own.’ Likewise, in the context of gays and lesbians, Indonesia based Dr. Siti Musdah Mulia has pointed to the Islamic emphasis on ‘Ird-dignity’ of human beings. As such, Muslim scholars are invited to heed the words of Ibn Taymmiah.

When the scholars find out that their decisions are causing lots of suffering, or that people are looking for worse loopholes than the actual prohibition, or that people end up living in the ‘Haram’, then it is time for the scholars to think again about their conclusions.