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Same-Sex Marriage in Islam

By:
Junaid Jahangir, Hussein Abdullatif
Source:
Oxford Islamic Studies Online What is This? Online-only content developed by noted scholars is continuously added to the site, part of our ongoing efforts to expand our coverage of the Islamic world.

Same-Sex Marriage in Islam

Sexual expression in Islam is regulated through a legal contract, which traditionally comprises both nikāḥ (marriage) and concubinage. Any sexual activity beyond such a legal contract is viewed as a transgression based on verses 23:5–7. Procreation is not necessary to legitimize a relationship, as verse 30:21 is clear that the purpose of marriage is love, affection, harmony, and peace between spouses. It is therefore not surprising that many jurists define the purpose of marriage in terms of sexual enjoyment (Ali, 2006, p. 179). In Sunnī Islam the Ḥanafī and Ḥanbalī jurists understand the word nakaha (the transitive verb for nikāḥ) to mean sexual intercourse (Kamali, 2005, p. 163). Likewise, in one of the Shīʿī lexicons, the meaning of the word nikāḥ is deemed equivalent to the word waṭʾ, which means sexual intercourse sanctioned by marital contract (Rispler-Chaim, 2006, p. 47).

Ḥifẓ furuj (Protection of the Private Parts) and the Principle of Permissibility

Based on the fact that marriage is viewed as a legal contract for sexual intercourse, where procreation it not necessarily essential, it would seem that Islam could allow for same-sex marriage. However, since same-sex sexual acts were addressed by past jurists in the context of ubnah (anal disease) and pederasty (and therefore condemned in the classical Muslim period), a legal contract for same-sex couples has never been addressed in Islamic jurisprudence. In contemporary times, neo-traditionalist Muslims, who wish to superimpose classical juristic opinions, are taking the tersely mentioned condemnatory positions from classical juristic manuals and using them to reject Muslim same-sex marriage. Such classical opinions have occasionally been presented in the form of legal maxims or juristic rules, one of which is applied to marriage and by analogy or extension to same-sex marriage.

Neo-traditionalists reference verses 23:5–7 and the juristic rule, al-aṣl fī al-ʾabḍāʿ al-taḥrīm (“the default status of accessing female pudenda is prohibition”), seemingly derived from these verses, to prohibit same-sex marriage. This juristic rule is presented in contemporary times to indicate that any sexual activity is prohibited unless expressly allowed by the primary texts. However, such a representation of the legal maxim is not supported from the primary texts and is not a point of consensus, especially as it was formulated on the basis of ijtihād (independent reasoning) hundreds of years far removed from the message of Islam. Moreover, the rule, which was understood in the past as the prohibition of accessing a woman’s private parts unless through the permitted path of marriage or concubinage cannot be applied to sexual activity within the confines of a legal contract, which could include same-sex marriage. Contemporary juristic opinions prohibiting same-sex marriage are based on ijtihād, or a derived position, and the rule on which this prohibition relies (based on verses 23:5–7) can be contested on the basis of at least five reasons as follows.

Non-binary gender and the khuntha mushkil (indeterminate gender).

First, this juristic rule is framed in the context of a binary understanding of gender, based on the dhakar and the unthā, which respectively connote non-receptive and receptive entities. As such, the rule is sometimes mentioned as “the default status of female pudenda is prohibition (Haddad).” This means that nakaha is based on the assumption of female passivity, which is clear from the jurist Shāfiʿī’s (d. 820) reasoning that a man is the one who marries or takes a concubine and stands over a woman, and a woman is the one who is married or taken as a concubine and does not stand over a man, simply on the basis that she is different (Ali, 2010, pp. 178–179). Such an understanding of gender allowed Shāfiʿī and other jurists to view mahr (dower) as the “vulva price,” that is, payment made to have legal access to the wife’s private parts (Ali, 2006, pp. xxv, 4). In essence, this juristic rule is about legal sexual intercourse through ownership of the female private part. However, such a binary understanding of gender and marriage is contested.

The exegete Qurtubi (d. 1273), referenced verse 42:50 and verse 28:68, which states that “He creates whatever He wills,” and argued that these verses include all the variations of intersex individuals (Qurtubi, verse 42:49–50). While Qurtubi did not expressly mention the marriage of intersex persons, such a non-binary understanding of gender allowed the Ḥanbalī jurist Khiraqi to let the khuntha mushkil (ambiguous gender) marry the gender they are attracted to, as he considered their “sexual orientation,” which was assumed to rest on their gender orientation in that a disposition toward men would entail a female gender and vice versa, as the most important factor in this decision (Kuwaiti Encyclopedia of Fiqh). Jurists like Khiraqi gave the khuntha mushkil the final authority to determine their gender based on the principle, as captured by al-Āmidī (d. 1233), that jurists could decide only on overt and not on hidden matters. While such jurists allowed the khuntha mushkil to assume the binary role of the male and female for marriage, it is also true that they accepted that the underlying gender was never clearly male or female. As such, the juristic rule is not limited by a binary understanding of gender and has not been a hindrance in cases of marriage beyond a cissgender, heterosexual context, despite the absence of express permission from the primary sources of Islam, the Qurʾān and sunnah (the Prophet’s teachings and practices).

Unanimity versus dissent—minority juristic opinions.

Second, even in a gender binary context, the juristic rule that is used in the argument against same-sex marriage has also been contested. The Ḥanafī Mufti of Aleppo, al-Kawākibī (d. 1685), asserted that there were those who deemed liwāṭ with male slaves permissible (El-Rouayheb, 2005, p. 124). Such opinions also have precedent in weak Athar (trace) texts, wherein some women contested with the Caliph ʿUmar (d. 644) on taking male concubines, and his friends asserted that “They disputed you on the book of God,” thereby suggesting that they did not deem the understanding of the women as completely wrong (Ibn ʿUthmān, p. 537). While such an opinion may be deemed shaath (absurd), especially by those who find same-sex sexual expression disturbing, such opinions reflect the fact that alternate opinions and arguments do exist even on matters that are projected as unanimous or without dissent.

Contesting opinions—permissibility of acts not expressly allowed.

Third, the interpretation of verses 23:5–7 that gives rise to the juristic rule has itself been contested. Traditionally, the verse has been interpreted to prohibit any sexual activity, including masturbation, outside marriage and concubinage. Mālik (d. 795) opined that verses 23:5–7 defined the masturbator as one who exceeded limits (“Masturbation,” 1991), whereas, Shāfiʿī, using a similar argument, deemed masturbation to be prohibited (Islam QA, 1997). However, some past scholars allowed for sexual acts without express permission from the Qurʾān and sunnah. Likewise, through a linguistic analysis of the verses, some contemporary scholars indicate that there is no general principle or injunction that deems masturbation as prohibited or undesirable (Ghamidi). This substantiates the case that the interpretation of verses 23:5–6 and therefore any derived juristic rule is far from unanimous and therefore contested.

The permissibility of legal contracts on social transactions.

Fourth, the juristic principle on marriage is not one of prohibition but one of permissibility, because the Qurʾān refers to marriage as mīthāq ghalīẓ (a firm covenant) in verse 4:21 (El-Menyawi, 2012, p. 474) and according to the Ḥanbalī jurists, in the absence of a clear text that prohibits contracts, the normative position on contracts including marriage is ibāḥa (permissibility). Additionally, matrimonial laws fall in the category of muʿāmalāt (social transactions) (Kamali, 2007, p. 151), which means they are subject to changes contingent on changing social conditions. This allows for the permissibility of a legal contract that is not restricted to being between men and women. Indeed, the permissibility of a legal contract for same-sex couples can be substantiated on the basis of verse 4:19, which teaches that contracts are to be based on mutual consent and on the basis of the observation that consent alone is construed as creating binding rights and responsibilities (Kamali, 2007, p. 162). Additionally, such an argument can be supported on the basis of the observation that according to Ḥanafī jurists, a valid contract requires freedom of ikhtiyār (choice) and riḍā (consent) (El-Hassan, 1986), both of which are fulfilled in the case of Muslim same-sex marriage.

Deriving positions based on first principles.

Fifth, reading the juristic rule as requiring an express text to allow for same-sex marriage is problematic because past jurists were able to go against predominant positions based on the principle of ʿadl (justice) as opposed to explicit Qurʾānic backing. Jurists like Najm al-Dīn al-Ṭūfī (d. 1316), Muḥammad ʿAbduh (d. 1905), and Muḥammad Rashīd Riḍā (d. 1935), for example, advocated deriving rules even if they were not directly confirmed by the texts (El-Menyawi, 2012, pp. 419, 421). Likewise, Kamali suggests deriving positions even if no specific authority is found for their justification (Kamali, 2005, p. 48), as such efforts toward justice would always be in harmony with the Sharīʿah (Kamali, 2007, p. 174).

Thus, given these five reasons, the juristic rule to limit marriage to between men and women and therefore prohibiting same-sex marriage is not maʾlum min al din bil darura (religious teaching known by necessity).

The Texts on Lut’s People

While deriving the prohibition of same-sex marriage on the basis of verses 23:5–7 and the associated juristic rule is contested above, such a position often rests on the alleged immorality of same-sex sexual activity, as derived from the verses in the Qurʾān that condemn the people of Lut. However, while neo-traditionalists generalize from the story of Lut a blanket condemnation of all same-sex activity and desire, not only at the time of Lut but for all time and all peoples, a pro same-sex marriage position recognizes that such a deduction cannot be logically supported by the story as it exists in the Qurʾān. This latter view, which rests on understanding the Qurʾān by the Qurʾān, recognizes the distinction between the hostile behavior of Lut’s people against his guests and consensual marital bonds and relationships. A detailed exposition on these verses, the ḥadīth, exegetical and juristic literature, and contemporary opinions on the issue can be found in Jahangir and Abdullatif (2016).

Analogy and Anal Intercourse

In the absence of saḥīḥ (authentic) or mutawātir (constant and continuous) texts, any position against same-sex marriage is derived through qiyās (analogical deduction) and/or alleged ijmāʿ (consensus). However, challenges to both these branches of Islamic jurisprudence appeared early in Islamic history.

Shafīʿī advocated for the primacy of ḥadīth in response to the problematic overuse of consensus, and Ibn Ḥanbal (d. 855) collected the biggest collection of ḥadīth to avoid analogy, as he believed that scholars made most of their errors in analogical reasoning. The simplistic analogy between Lut’s people and LGBTQ Muslims on the basis of the shared feature of anal intercourse fails because for any analogy to work, there must be important shared features between the two cases being compared and an absence of significant factors that would render the analogy void. Exegetical literature does not allude to any possibility that Lut’s people ever claimed to be married to the men they penetrated. Therefore, there is no prohibitive position on Muslim same-sex marriage that is hukm qati (absolute injunction), qati al dilala (unquestionable in purport) or based on qati al thubut (indisputable evidence) (Jahangir and Abdullatif, 2016, p. 181).

Any supposed prohibition of anal intercourse does not hinder a legal contract between two women or two men, even if anal intercourse were accepted as prohibited. Additionally, the texts that prohibit anal intercourse have been criticized by ḥadīth scholars of the past and none of them appear in the books of Bukhārī (d. 870) or Muslim (d. 875). In contrast, Saḥīḥ Bukhārī alludes to the permissibility of anal intercourse as an opinion attributed to the Companion Ibn ʿUmar (d. 693) in the context of verse 2:223 on the tilth (Bukhārī. ḥadīth 4526 and 4527).

The Texts on Covering Private Parts

Likewise, any supposed prohibition of same-sex marriage on the basis of the texts that forbid men and women from looking at the private parts of other men and women is equally contestable (Mizzi, 13, pp. 273–274). Such an argument suggests that heterosexual marriage should also be forbidden, as the prohibition is much stronger between members of the opposite gender, for while the prohibition of same-sex sexual conduct is based on analogy, the prohibition of heterosexual intercourse is based on express verses such as 17:32 and the general corpus of Qurʾānic and ḥadīth teachings against sexual intercourse outside a legal contract. As such, the awrah (private parts) texts are about upholding modest conduct and not about preventing marriage.

Permissibility of Acts and Permanent Celibacy

Given that a legal contract for same-sex couples is not thwarted by the primary Islamic texts, same-sex marriage can be affirmed on the basis of ijtihād.

First, it has to be recognized that sexual acts are not qabīḥ (evil) per se and that any prohibition is due to a lack of a legal contract that legitimizes them. According to scholars like ʿAbd al-Jabbār (d. 1025) (Hourani, 1971, pp. 69–70); Abū al-Ḥusayn al-Baṣrī (d. 1044) (Reinhart, 1995, p. 41); and Sharīf al-Murtaḍā (d. 1044) (Reinhart, 1995, p. 42) an act is qabīḥ if it is characterized by ʿabath (uselessness) and taklīfu mā lā yuṭāq (imposing unattainable obligations), in the absence of which the act is deemed permissible. This indicates that instead of same-sex sexual expression, it is actually the prohibition of a legal contract which pushes people to sin that is qabīḥ, since this prohibition creates an unnecessary, useless, and unattainable obligation of permanent celibacy.

Second, permanent celibacy is not an Islamic value and even injunctions to patience are not lifelong but temporary measures. Permanent celibacy causes unnecessary asar (undue hardship) and ignores al-ṭarīq al-wasaṭ (the middle path). Indeed, contemporary Muslim scholars counsel those who refuse to marry to not fight against human nature (Amjad). Prescriptions on patience based on verse 24:33 and the ḥadīth on fasting to diminish sexual desire (Bukhārī, 5065 and 5066) are temporary, based on the commentary of Ibn Kathīr (d. 1373), which indicates that Allah encouraged both free men and servants to get married and promised enrichment from His bounty if they were poor (Qurʾān Tafsīr Ibn Kathīr).

As in the past where injunctions to patience were construed as temporary measures, in contemporary times Muslim Chaplain Habeeb Alli has expressed that the directive of fasting, where one abstains from food and sex, is not easily adoptable for everyone and that fasting can actually stimulate desire instead of inhibiting it (Alli, 2011, p. 12). Additionally, some state that “patience is a finite thing and one cannot expect people to be abstinent for years” (Husni and Newman, 2011, p. 61). Indeed, according to Shāṭibī (d. 1388), some human dispositions are so inherent that to deny them would be to harm human beings irreparably (Emon, 2010, p. 175). These arguments indicate that permanent celibacy cannot be sold as a test as it violates Islamic norms.

Nikāḥ and Legal Contract

In his book The Straight Path, commenting on verse 4:28 which indicates that Allah wants to lighten difficulties, Ibn Taymīyah acknowledges that human beings were created sexually weak, so there has to be a legal path to meet the human need for intimacy. As such, same-sex marriage can be affirmed through either a nikāḥ or an alternate legal contract.

A nikāḥ for same-sex couples can be justified on the basis of verses 30:21 and 2:187, which root marriage on mawadda (affection), raḥmah (compassion) and as an institution through which spouses find tranquility and companionship as they become a libās (protective garment) for each other, guarding each other’s dignity and honor (Kamali, n.d.), and also on verse 9:71 that depicts mutual protectorship of men and women and verse 2:187 that depicts cooperation and harmony between them (Ali, 2006, p. 183). Given that sterile couples and elderly women are allowed to get married, there seem no reasonable grounds to prohibit the realization of these benefits for same-sex couples.

Logistical Issues and Innovation

The establishment of a legal contract for same-sex couples may require Muslim jurists to navigate through the logistical issues, which can be readily addressed. Nikāḥ is a legal contract, which means stipulations can be placed in a marriage contract against polygamy, for the right to divorce for both partners, the optionality of a walī, and for the economically better off spouse to uphold family responsibility. Given that marriage is no longer viewed as an ownership based contract and that offspring don’t necessarily have to belong to the father’s tribe, the understanding of mahr (dower) can be recast through its symbolic value and the spouse who is better off socially and economically can offer the mahr (Kugle, 2010, p.208). Additionally, the purpose behind ʿiddah (waiting time) is to reveal any hidden pregnancy; a rule that may be relaxed in the case of elderly women and sterile couples, irrespective of their sexual orientation. Finally, just as prohibition of marriage to paternal and maternal aunts of one’s wife was extended from the prohibition of marrying to two sisters at the same time (Islam QA, 2010), the prohibition of same-sex incest can be deduced from the prohibition to one’s mother and sister in verse 4:23. Moreover, according to the body fluids theory of incest (Van Gelder, 2005, p. 96), ties between people established due to blood, milk, and semen prohibit sexual relationship between them.

The formulation of a same-sex legal contract cannot be deemed as bidʿah (innovation). According to Shāṭibī (d. 1388) matters that can be rationally understood, in that they are not merely taʿabbudi (based on obedience) like worship rituals, and whose goodness and badness can be known include marriage, for which the term bidʿah (innovation) is not applicable (Masud, 1997, p. 222). Additionally, the opposition to same-sex legal contracts on the basis of hawā (whims) and bidʿah can be counterbalanced by alluding to baghy and istibdād bi-l-raʾy that refer to indulging in self-righteousness, imposing one’s opinion on others, and denouncing those who oppose it (Kamali, 1997, pp. 131, 146).

In essence, guided by strong inferences from verse 4:28, contemporary Muslim scholars can look freshly, sensitively and widely into their rich heritage to legitimize same sex marriage in Islam.

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