The Shariah, Homosexuality & Safeguarding Each Other’s Rights in a Pluralist Society

In recent days there has been much debate over Islam’s position on homosexuality. Anyone who has read any Persian poetry, read a forthright travel guide to the Gulf or heard Pakistanis or Afghans joking knows that same-sex attraction and activity has not been unusual in Muslim societies. A wealth of top quality scholarship has demonstrated that Islam, Muslim societies and the Shariah tradition did not conceive of ‘homosexuality’ as an identity. But they did acknowledge that same-sex attraction occurred, often for ‘natural’ reasons (e.g. it was considered normal for men to be attracted to beardless youths, who shared feminine beauty). It is only specific actions, such as sodomy (in Arabic, Liwat)^[1], that show up on the Shariah radar as sins or punishable offenses. It is not same-sex attraction or desires that the Shariah prohibits. It is acting on them.

In the wake of the Orlando shooting, however, Islam’s disapproval of same-sex acts has come under renewed scrutiny. Some critics have argued that any disapproval of homosexuality is homophobic, and that any indulgence of homophobia lays fertile ground for violence against the LGBTQ community. Others have made more specific objections, namely that the death penalty for sodomy (Liwat) in the Shariah creates a particularly slippery slope towards violence against gays. If the Shariah prescribes death for homosexuality, they contend, then wasn’t the Orlando shooter just executing God’s will? Isn’t that a huge problem?

Disagreement over the Punishment for Sodomy in the Shariah

In response, some Muslim scholars have presented arguments that, though certain same-sex actions are prohibited in Islam, there is no death penalty for homosexuality in the Shariah. The problem with this argument, however, is that, far from uncovering a popular misconception about Islam or discovering some long-hidden true teaching of the religion, it simply reproduces millennium old debates within the Shariah tradition. Yes, the main position in the Hanafi school of law for many centuries was that someone convicted of sodomy (which in all the schools required four witnesses to the act of penetration) was not executed but only given a milder punishment or perhaps only disciplined by a judge. But the other three Sunni schools of law did consider sodomy to be a death-penalty offense (at the very least for the active partner). This disagreement exists because of how different schools of thought in the Shariah weighed evidence from the Quran and the Prophet’s precedent and how they interpreted it. For the schools of law that upheld the death penalty for sodomy, their evidence was 1) several Hadiths of the Prophet in which he states that those who commit ‘the act of the people of Lot’ should be killed, the main one being the Hadith of Ibn ‘Abbas^[2]; 2) an analogy between sodomy and Zina (heterosexual fornication or adultery), which was often punishable by death; and 3) the rulings of many Companions of the Prophet and other early Muslim scholars. The Hanafi school differed with this position because 1) the school did not permit declaring something to be a Hudud crime (see below) by analogy (sodomy might be analogous to Zina, but God and the Prophetﷺ had commanded Muslims to seek the most minimal possible application of Hudud laws, so extension by analogy was indulging) ^[3]; 2) Hanafis argued that the Hadiths asserting the death penalty for Liwat were of debatable authenticity^[4]; and 3) there was far too much disagreement over the proper punishment for sodomy amongst early Muslim scholars to suggest that death was the clear conclusion.^[5]

Respecting the Law of the Land

There is another problem with the ‘no death penalty for homosexuality in Islam’ argument in the context of debate since the Orlando shooting. Although there has been great disagreement amongst Muslim scholars over the appropriate punishment for Liwat in Islam, there has been no disagreement over Liwat being prohibited in Islam.^[6] So the objection of critics remains: Islam’s disapproval of same-sex acts is homophobic, and homophobia is a slippery slope towards violence against gays.

Lost in this discussion is something that should be obvious to everyone: your personal morality is not the law, and you don’t take the law into your own hands. Regardless of what law one lives under, it is the job of the recognized organs of justice to apply it. Regardless of how vile you consider an act to be, it is the law of the land that determines if that act is a crime and what its punishment should be.

According to the Shariah, Muslims living in the West (or other non-Muslim states) are essentially visitors from the perspective of the sacred law. The standard definition amongst Muslim scholars for the Abode of Islam (Dar al-Islam) was those lands where the Shariah reigns.^[7] Muslims outside that space reside in lands and countries as guests of whatever legal or religious system reigns there. If the law of the land were to prohibit Muslims from carrying out a duty required by the Shariah, such as prayer, or require them to do something clearly forbidden in Islam, such as drinking alcohol, the standard opinion amongst classical Muslim scholars was that Muslims could no longer reside there (a second opinion was that they should remain so that the religion of Islam would not vanish there). Otherwise, Muslims must respect the law of the land. Their decision to reside in those lands represents their agreement to a contract with the governments ruling them. As the Quran commands Muslims, “be true to your agreements” (Quran 5:1), and as the Prophetﷺ taught, “Muslims are bound by the conditions [of their agreements].”^[8] The Shariah continues to govern Muslims’ private worship and whatever areas of law the local system leaves open (such as contracts, inheritance and marriage in the US), but Muslims must respect and abide by the restrictions, duties and regulations placed upon them.

'Kill the one who has committed sodomy' & The Rule of Law in the Shariah

How do Muslims reconcile the principle of the rule of law with the commands of their sacred scriptures? The Quran echoes the Bible in its tone regarding justice. ‘A life for a life, an eye for an eye…’ (Quran 5:45) has an immediacy about it, as does the Prophet’s Hadith (contested, as mentioned above) ‘Whoever you find committing the act of the people of Lot, kill the active and passive partners.’ Aren’t commands like this directed at us as individuals?

This question was posed to the most famous scholar of thirteenth-century Cairo (and Damascus, for that matter). Ibn ‘Abd al-Salam was asked whether a person who had committed a grievous crime or mortal sin was allowed to take the law into his own hands and kill himself. The answer was no, ruled the scholar. If the person wants to be punished, he should confess before a judge so that he could be dealt with ‘in the legal manner (‘ala al-wajh al-shar’i).’ Scriptures like the Bible and the Quran address mankind at the level of conceptual default, as individuals unmediated by governments. At that level, Ibn ‘Abd al-Salam explained, it was indeed individuals who sought justice for wrongs done them, who exacted ‘an eye for an eye.’ But, he continued, the Shariah delegated this power and role to governments because of the serious risk of abuse.^[9]

This became the standard position of Muslim scholars regarding punishing people for the Hudud crimes as well as for handling crimes like murder. In the Hanbali school (my school), the position has been clear: “For us the principle is delegating the Hudud to the authority (imam), because it is right of God, so it should be delegated to His deputy [on earth].” A later Hanbali scholar explains that this is because enforcing such laws “requires exercising discernment and reason (ijtihad)” to make sure that justice is being done.^[10] In the case of murder, the family of the victim has a God given (even natural) right to see justice done and to see the killer punished. But if a family member kills the murderer himself, without permission from the ruler or judge, he can be seriously punished. If someone kills the murderer when the judge has explicitly ordered they not be touched, then the vigilante will themselves be charged with murder. There can be no execution of a murderer, even one whose guilt is known, without permission from the ruling authority (these are examples from the Hanafi and Shafi schools of law).^[11] As summed up by the late, great Muslim jurist Wahba al-Zuhayli, “It is an agreed upon principle that applying the punishments of the Hudud and Qisas (eye-for-an-eye crimes) as well as other discretionary punishments falls under the special purview of the authorities (imam).”^[12]

How Was Homosexuality Dealt with in Pre-Modern Islamic Civilization?

The short answer is that it wasn’t. Like a DEA agent watching a Keith Richards interview, the guardians of the Shariah (judges, concerned scholars, market police, etc.) turned a blind eye to the private lives of the populace. Thus, despite the endless production of poetry extolling the beauty of young boys, instances of people being punished for Liwat are exceedingly rare (I have only come across a few examples in Islamic history). Of course, Muslim jurists knew that homosexuality existed all around them. And they disapproved. As Ibn ‘Abd al-Salam wrote, people only seem concerned about sins if they were socially rejected, not if they were objectionable to God. People were mortified by eating in public during Ramadan, he complained, but they saw no problem with ubiquitous sodomy.^[13]

Why this dissonance between the rules of the Shariah and their application? This dissonance only existed for the Hudud crimes, those ‘Limits of God’ whose punishments had been laid out clearly by the Quran and the Prophet’s precedent (adultery/fornication, sexual slander, certain kinds of theft, intoxication, apostasy from Islam and banditry/violent robbery). Though some of these crimes were grave threats to public order (e.g. banditry, theft), and others included violations of the rights of other members of society (e.g. slander), what unified the Hudud crimes was that they were also seen as transgressing the ‘rights of God.’ They were particularly offensive to Him. But because God is most merciful, the Quran and the Prophet’s teachings made it almost impossible to actually punish someone for one of the Hudud crimes. The Quran ordains that the punishment for fornication is 100 lashes, but it also requires four witnesses who saw penetration occur to prove it (the Quran adds that, if someone makes this accusation without four witnesses, s/he is punished with 80 lashes for slander) (Quran 24:2-4). Furthermore, in a commandment that has been central to the application of justice in Islamic history, the Prophet ordered judges to “Ward off the Hudud from the Muslims as much as you can, and if there is a way out for [the accused] then let him go. For it is better for the authority to err in mercy than to err in punishment.” Muslim jurists encapsulated this rule in their maxim ‘Ward off the Hudud by ambiguities (shubuhat),’ compiling vast lists of all the procedural technicalities by which Hudud punishments could be set aside. For example, if a thief stole an item below a certain value, or from an unsecured location, or if the thief simply denied he’d stolen it, he could not be punished with the Hudud punishment of having his hand chopped off (see the appendix for a list of the ones for theft). That does not mean that the thief would escape punishment. His crime would simply drop from the Hudud-level theft (sariqa) to a lower level of theft, which was punishable by a duty of restitution and perhaps a punishment like a year in prison. Since the majority of Sunni schools of law considered Liwat to be an extension of the Hudud crime of Zina, the same procedural safeguards applied. If there was any ambiguity, the Hudud punishment would not be applied. As with the Hanafi school’s ruling on Liwat, dropping the Hudud punishment didn't mean that the guilty party was not punished. But the punishment would be much less severe.

Beyond the general caution with which Hudud crimes were punished, there was also a widespread cultural acceptance of same-sex attraction in Muslim societies. Muslim scholars and judges agreed that Liwat was a grievous sin, but it was too widespread not to treat it with humor. And appreciating male beauty was not unknown to them. A thirteenth-century scholar visiting Cairo from Bukhara would play on his own name and the famously strict criteria that the great Hadith scholar al-Bukhari had for evaluating the soundness of Hadith. When this scholar saw a handsome boy he would say, ‘This is sound according to the criteria of al-Bukhari!”^[14] An influential ninth-century Sunni scholar and chief judge of Baghdad was well known for delighting in encountering handsome young men – and writing poetry about it - to the extent that a critic devoted a whole poem to “a judge who would apply the Hudud punishment for adultery but who sees nothing wrong with Liwat.” But all of this was just fodder for the judge’s banter with the caliph during their meetings.^[15]

The Red Herring of Intolerance in Pluralist Societies

In an interview the other day, I was asked if Islam’s position on same-sex sexual acts meant that Muslims could not live in the West. That question is very odd if you think about it. There are lots of features of life in America that Islam (and Muslims, presumably) disapproves of: drinking alcohol, premarital sex, eating pork, wearing revealing clothing, the list could go on. Intoxication is a Hudud crime in the Shariah, punishable by eighty lashes, and premarital/extra-marital sex is condemned as severely as sodomy. Yet there is no appreciable evidence that Muslims seek to carry out the Hudud punishments for these acts in the US. In fact, Muslims live around such practices every day in the US without incident. Despite Donald Trump’s claim that Muslims have failed to integrate into American society, they seem quite willing to accept the plurality of American lifestyles and even to stand up for the rights of other Americans to hold beliefs Muslims might not share. A recent Pew survey shows that 45% of Muslims in the US say homosexuality should be accepted by society (vs. only 36% of evangelical Protestants).

Although I’d hesitate to trace this feature of the Muslim community to some strain in Islamic history, it’s hardly surprising that Muslims would have this attitude. In classical Islamic civilization, Muslim authorities allowed Zoroastrians to engage in brother-sister marriage, Jews to charge interest, and Christians to cultivate wine and pigs. [Author's Note and Correction: In the initial publication of this article I added ‘Muslim judges could even hear such cases brought by non-Muslim litigants by applying the laws of their respective communities instead of the Shariah.’ I cannot actually find any evidence to back this up. To the contrary, all evidence seems to be against this.]. Tenth-century rabbis in Baghdad acknowledged that Jews were settling their divorces and registering properties in Muslim courts, and Muslim scholars in fourteenth-century Damascus figured out how a Muslim judge was supposed to appraise the value of a Christian’s wine stock (either by its value in a sales contract or by its grape juice equivalent).^[17]

Towards the end of his Social Contract, Rousseau asserts, “It is impossible to live at peace with those we regard as damned.” Translated into our time, his rule might read ‘It’s impossible to live in peace with those whose core identities you refuse to validate.’ This is the assumption underlying one school of thought about tolerance in liberal societies (you might call it the ‘don’t judge’ school). At its base it’s both principled (can you really treat as equal citizens those of whom you profoundly disapprove?) and practical in an instrumental sense (teaching children that judging others is wrong is the best way to shape a peaceful society). And this assumption provides the basis for the position that any moral or religious disapproval of homosexuality is a dangerous impediment to the LGBTQ community receiving equal rights and enjoying security in a society.

But Rousseau’s rule is also simply wrong in the context of American society. It’s flawed in principle because it unduly restricts freedom of conscience and religious belief; it’s not uncommon for religions to teach that non-adherents are damned and misguided, and it’s very hard to maintain a belief in a code of ethics and rules if you can’t disapprove of those who violate at least some of them. In a society filled with diverse, sometimes polar opposing views on religion, politics, lifestyle, etc., forcing uniform approval or mutual validation from all parties would leave few belief systems, political positions or worldviews standing.

Rousseau’s rule is also empirically wrong in the American context. Americans have lived and continue to live side by side with fellow citizens whose beliefs and lifestyles they deplore. As a Muslim, everyday I encounter (in fact, am related to) people who think it’s absurd to believe in God, idiotic to believe in Islam, and barbaric to uphold Muslim values. Being a believing Muslim is core to my identity, but demanding that everyone else consider my views morally or metaphysically valid would be absurd. One might object that being gay is not a choice, while being religious/Muslim is. But being religious might well be genetically determined (can we be so sure it’s not?). Furthermore, a central premise in the argument for recognizing transgender identity is that it is a person’s subjective understanding of their own identity, not their objective biological features, that we should validate. Saying that my religiosity is any less core to my identity than my sexuality is to privilege a narrow conception of both these aspects of identity, and it’s precisely such imposition that the LGBTQ movement opposes.

In pluralist societies like the US, people have dramatically different beliefs and worldviews. They might even consider those who don’t share them to be morally deficient or even less than human (see current presidential election sloganeering or right wing invectives against President Obama for the past 7 years). Given all the diversity of belief systems and worldviews held by Americans, it is totally unrealistic to propose eliminating all their aspects of disapproval or condemnation. It is much more feasible to emphasize that moral disapproval or religious condemnation cannot be allowed to violate the rule of law that safeguards us all.

The Orlando Shooting and Muslims' Stance on Homosexuality in America

We often hear the question ‘What’s wrong with Islam, that so many Muslims are terrorists?’ The obvious answer: there is nothing wrong with Islam that makes Muslims terrorists, since the percentage of the world’s 1.5 billion Muslims who engage in terrorism is a statistically insignificant 0.01% (rounding up).^[18] Omer Mateen’s horrendous act of violence shocks us all, but he was just one person. His act does not in any way show that Muslims’ views on homosexuality represent some real threat to the safety of the LGBTQ community. It only does so if we assume the Rousseau rule to be true and then read the Pulse shooting as proof of that. How many other acts of violence towards gays have been carried out by Muslims in the US? A 2011 Pew poll of Muslim Americans’ views showed that 45% of them felt that homosexuality should be discouraged by society. When I check to see what percentage of the Muslims who hold that view have engaged in violent attacks on the LGBTQ community, I get 0.0001% (rounding up).^[19]

As a Muslim American, I support the right of same-sex couples to have civil marriages according to US law. Islam does not approve of same-sex acts, but I don’t believe that the social or religious traditions of any one group should dictate what sort of contracts or unions those of other beliefs can engage in. I want to preserve my right to have my Shariah marriage contract with my wife recognized by US law even though I know many Americans consider Islam’s conception of marriage to be unpalatable. I don’t see the desire of gay couples as any different. Like Muslim judges adjudicating incestuous Zoroastrian marriages, acknowledging that we live in morally and religiously pluralist society does not mean condoning everything done in it. I believe that it is the right of every religious community to advocate for its own vision of sexual propriety. As the Supreme Court held in the historic Obergefell v. Hodges case, “it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.” This right is as important and sacrosanct as the right of minorities (be they Muslims or the gay community) to engage in unions and contracts free from the hobbles of majoritarian bias.

As we all attempt to deal with the shock of Omer Mateen’s bloody crime in Orlando, we should keep in mind what was truly criminal in his actions. Many find his religious beliefs revolting. Many find his homophobia disturbing. But Americans have a right to disagree on these things. The crime Mateen committed wasn’t believing that God declared that same-sex acts are sinful. The crime he committed wasn’t hating gays. The crime he committed (with all asterisks for presumption of innocence, etc.) was that he intentionally, knowingly and with malicious intent shot, killed and even executed in cold blood 49 innocent people, wounding dozens of others. He might have thought he was doing God’s work, but the Shariah has made it clear since the beginning of Islam that it is not for individuals to take God’s law into their own hands. Even if Mateen were living in some medieval, idealized Muslim city, ruled by the Shariah and free from all the evils of the modern world, he would be dragged in chains before the kadi (judge) on the charge of mass murder. The people he killed had not been given a trial or even formally accused of the crimes he imagined. Even if they had been tried, it’s highly unlikely that a Muslim judge would have found them guilty of a Hudud crime. And whatever the verdict, it would only be the recognized legal authority that could have punished them.