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ABSTRACT
The aim of this paper is to concentrate on responses by Muslim scholars to both the Orlando incident and the United States Supreme Court Judgment on same-sex marriage. I first provide some comments on the Orlando incident in relation to the issue of Muslims, violence and homophobia. More importantly and central to my argument, I consider what the import of these responses are for Muslims – especially Muslims who identify as LGBTIQ or at least experience same-sex sexual attraction or participate in same-sex sexual conduct – and also what do such responses suggest about the prospect of same-sex sexuality being seriously considered, understood and accepted within the contemporary Islamic tradition and the possible consequences thereof. I make the case that the Islamic tradition, by way of its self-identified and proclaimed scholarly interpreters and representatives, urgently need to engage with the issue of same-sex sexuality in a more robust, dynamic and imaginative manner or risk a deepening epistemological crisis.
Acknowledgements
I would like to thank Professors Farid Esack and Scott Kugle, Dr Iqram Bux, the editors of this journal and the anonymous reviewer for their comments. I am also indebted to Professor Amina Wadud for indulging me in discussing some of the issues that appear in this paper and to Professor Jonathan Brown for reviewing the article and offering insightful comments and critiques of the arguments.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes on contributor
Nadeem Mahomed is a lawyer and a doctoral candidate in the Department of Religion Studies at the University of Johannesburg, South Africa.
Notes
1 Some of the earliest arguments articulated in favour of a sexuality sensitive reading of the Qur’an and Hadith were by people working within the nascent LGBTIQ Muslim sector during the 1990s. Imam Muhsin Hendricks, the founder of the South African LGBTIQ Muslim organisation The Inner Circle enunciated some of these novel readings of Islam’s sacred scripture and traditions of the Prophet Muhammed which can be accessed in a more recent article titled “Islamic texts: A Source for Acceptance”. A good overview of the literature on the subject is Geissinger’s “Islam and Discourses of Same-Sex Desire”.
2 I do not deal with the etiology of homosexuality or sexual orientation as it is beyond the scope of this paper. It suffices to say that it is quite apparent that people, including LGBTIQ people or people who do not identify with a sexual identity but experience same-sex sexual desire or participate in same-sex sexual conduct, do not consciously and deliberately “choose” their sexual feelings or the objects of their sexual arousal. Even though it is becoming increasingly common, at least in Western societies, for people to identify with a sexual orientation or sexual identity, I am cognisant that some people prefer not to have a sexual identity label attached to their sexual proclivities and/or activities. My intention in this paper is to deal with the issue of same-sex sexual desires and conduct within the Muslim community and therefore the question of identity, at least to this extent, is irrelevant to my argument. Therefore I do not draw a neat distinction between those people who claim a sexual identity and those who do not. Accordingly, I use the terms LGBTIQ, homosexual, queer and same-sex desire interchangeably as markers of people who experience same-sex sexual attraction and find same-sex sexual conduct both sexually fulfilling and expressive of romantic love and emotion.
3 On the topic of homosexuality, an example of this sentiment in its more extreme form is Ayaan Hirsi Ali’s article “Islam’s Jihad Against Homosexuals”, where she states that the Orlando incident “is not primarily about guns or immigration. It is about a deeply dangerous ideology that is infiltrating American society in the guise of religion. Homophobia comes in many forms. But none is more dangerous in our time than the Islamic version.” See also Nawaaz, “Admit It: These Terrorists are Muslims,” where Nawaaz attempts to establish a continuity between dominant and general Muslim attitudes on a subject such as the proscription of homosexuality and the exceptional violent actions of a gunman who targeted a gay nightclub.
4 Greenwald, “Stop Exploiting LGBT Issues to Demonize Islam.”
5 Mahomed and Esack, “The Normal and Abnormal,” 224–243.
6 See Goldman et al., “He Was Not a Stable Person”; CBS News, “Man Who Says He Was Omar Mateen’s Gay Lover Speaks Out”; Hennessy-Fiske, “FBI Investigators Say They Have Found No Evidence”; Rustling, “Omar Mateen’s Final Text.”
7 Norton, The Muslim Question. Norton argues very convincingly that the Muslim Question in the West has not much to do with the claim of the incompatibility between Muslims’ religious beliefs and Western values, but rather about the crisis facing Western societies in respect of their own commitment to cosmopolitan and plural societies.
8 This is not to suggest in any way that Islam or Muslim communities have a monopoly on treating queer people with disdain, bordering on disgust, or as people who are immoral, sinful, unhealthy and unethical. Homosexuality and non-heterosexual sexual identities and desires have for most of modern history in the West been considered a medical disorder. Homosexual sex, particularly sodomy, was criminalized and there was (and to some extent still is) a complete disregard for the emotional and psychological effects this has on people. Until very recently most states within the USA refused to recognize same-sex unions and there still exists a visible and trenchant anti-LQBTIQ sector. These efforts are not connected to Islam or Muslims and are solidly grounded in the conservative culture of American Christian religion.
9 An example of this position can be seen in Abdullah bin Hamid Ali’s reflections on same-sex marriage after the Supreme Court of the United States ruling on the issue, “Reflections on a Supreme Court Verdict: Gay Marriage.” Ali is the head of Zaytuna College’s Islamic law program, labelled America’s first liberal arts Muslim college. Ali says “Islam throughout all of its history has upheld the view that homosexual intercourse is an invalid form of intimacy. Similarly, the homosexual impulse has been the subject of condemnation. What this means is that while Islamic jurists have differed about the appropriate penalty prescribed for when two consenting adults engage in homosexual public indecency (i.e. intercourse), there is no disagreement that attraction to a person of the same gender is unnatural. A man being attracted to another man is no more natural than a man being attracted to his mother or daughter.” For scholarship on the premodern attitude toward same-sex sexuality see El Rouayheb, Before Homosexuality; Wright and Rowson, Homoeroticism in Classical Arabic Literature; Babayan and Najmabadi, Islamicate Sexualities; and Andrews and Kalpakli, The Age of Beloveds.
10 A few examples of such video clips are the following: Abdullah Hakim Quick, “Homosexuality.” When speaking on the position of Islam on homosexuality, he states the following: “I said put my name in the newspaper. The position is death and we cannot change Islam. Then they said to me what if a homosexual comes to masjid … Allah forgives all sins. If he is serious and a person came to me he came to the office and said he is homosexual and he cried and said what happened to you man and he said my father abused me. He is a Muslim. I said brother you are sick and he said I am sick. So we sent him to a Muslim psychologist so he can work through his problem and then bring him back to the masjid. Anything can come at us but we cannot allow in the name of Islam gay masjid to come. We cannot allow this man and they are trying to do this.”; Mufti A K Hoosen in “A Jihad for Love”, is recorded stating the following: “When I was in Makkah and they told that there is a Imam in from Cape Town who says homosexuality is permissible, I said impossible. What do you say? Is homosexuality permissible in Islam? Is that what you are promoting? We will consider you a murtad, an apostate and out of the fold of Islam. You will not be buried in a Muslim graveyard and no Muslim will read your salaat al-janaazah [funeral prayer]. No person can make interpretation to suit his desires or her desires when you have clear cut verses: when Lut alayhis salaam [peace be upon him] when he addressed his people and told them: Do you commit and bring that obscene and lewd action where a male fulfills his desire with a male? … Homosexuality is a crime not only in Islam but in every divine religion and is punishable in Islam by death. And we say if we’re an Islamic state, then you would face capital punishment. The only difference among the jurists is how that person should be killed … And I gave you the Hadith of Nabi alayhis salatu was salaam [narration of the Prophet Muhammad peace be upon him], the saying: ‘Kill the doer and the receiver’”; and Mufti Ismail Menk, “Stories of the Prophets Lut,” states:
How can you engage in intercourse with one of the same sex, astaghfirullah (Allah forgive us). One wonders how to describe it. Once I had met two people on an aircraft when I left Cape Town going to Johannesburg and I have to share this with you. And one brother I asked him what’s your name and he gave me a Muslim name and the other brother I asked him what’s your name and I asked him is this your father and he said no. Allahu Akbar (God is Great). May Allah grant us protection. I had to get up and had to tell him that with all due respect I have one question for you: what do you do? … May Allah protect our children our offspring and all from this type of evil. On the globe today it is being promoted … in some countries it is considered something good and some people are given extra grants and extra allowances when they engage in this type of activity … It will remain wrong and it will remain evil … At the time of Lut alayhis salaam [peace be upon him] it was in one little place that this was happening. Today globally people are promoting. What do you think the result will be? … Sometimes possibly because of the few believers that are in the midst of these types of cities and countries and so on and maybe because of that Allah … does not punish the people.
11 In my personal experience, I have witnessed many a homophobic claim or joke made by Muslim scholars and lay people in such a casual manner without any awareness or denial of how such attitudes are hurtful toward LGBTIQ Muslims.
12 A Joint Muslim Statement on the Carnage in Orlando.
13 Ali, “Reflections on a Supreme Court Verdict: Gay Marriage.”
14 Brown, “The Shariah, Homosexuality & Safeguarding Each Other’s Rights.”
15 A Joint Muslim Statement on the Carnage in Orlando.
16 These positions are not novel. In South Africa, the progress in achieving important legal victories for the LGBTIQ community was rapid in the new constitutional dispensation. In 1994 the interim Constitution explicitly prohibited discrimination on the basis of sexual orientation and the final 1996 Constitution retained this clause which is part of the equality clause in the Bill of Rights. In 1998 the Constitutional Court ruled that the criminalisation of sodomy is unconstitutional (National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others). In 1999 the Constitutional Court extended pension benefits to foreign spouses of South African citizens in same-sex relationships (National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others) and in 2001 same-sex couples were jointly permitted to adopt children (Du Toit and Another v Minister of Welfare and Population Development and Others). In 2005 the Constitutional Court recognised the urgent need for Parliament to institute a legal framework that recognises the partnerships of same-sex couples (Minister of Home Affairs and Another v Fourie and Another). Within this context and during the period when the Civil Unions Bill was debated in Parliament, a prominent South African Mufti responded to a question on homosexuality as follows:
We would, you know abhor, those kind of things. But at the same time, we have to understand that we have a democratic dispensation … [that] would have to dispense the needs of all its citizens. So if certain citizens have made their claim, and if they have a right of staying in the country, we would expect that, the democratic dispensation facilitates for them as well … . (Mufti Ebrahim Desai quoted in Tayob, “Islam and Democracy in South Africa,” 20–4)
17 The religious legal construction of heterosexual marriage as the only framework for licit sexual relations is not accurately reflective of the Islamic legal tradition despite its almost universal acceptance by most Muslims. The permissibility of concubinage as a vehicle for a man’s sexual access to women is generally ignored. While the system of slavery and concubinage no longer exists – with the exception of some grotesque instances where Islamist political movements have “reinstated” this practice – the consequences of what such a ruling in the shari’ah means for notions of consent, equality, mutuality and sexual access in current sexual relationships is rarely discussed. For a discussion on the institution of concubinage in Islamic law, see Ali, Sexual Ethics and Islam, and for the way in which the master slave relationship was in some ways parallel to the husband and wife relationship in Islamic law, see Ali, Marriage and Slavery in Early Islam.
18 Some scholars maintain that the Shari’ah is not interested in homosexual desire and that only homosexual conduct is censured (see Brown, “Muslim Scholar on How Islam Really Views Homosexuality”). This is true of what constitutes punishable and sinful conduct in terms of the Shari’ah but in practice the current common position also deems same-sex desires problematic in that they are sexual impulses that do not accord with what is considered to be healthy, normal and natural and the risk that one may act upon such desires.
19 Jonathan Brown does not focus on homosexual desire but actions and states that it is only the latter (actions) that are proscribed by the Shari’ah.
20 The centrality of the “coming out of the closet” narrative in Western societies is problematic for a number of reasons. It views the privacy of sexuality as akin to subjugation. The only truly liberated person is one who is free to visibly and vocally express his or her sexuality or sexual interests. Many people, especially many people who operate within non-Western ethical frameworks, prefer to keep their sexual lives confidential and private. Also, the opacity of the closet allows many LGBTIQ Muslims the option of still maintaining their current community and kinship links while also inhabiting a space that is protective of their sexual orientation (see Esack and Mahomed, “Sexual Diversity, Islamic Jurisprudence and Sociality”). That being said, any agency on the part of LGBTIQ Muslims to chart a life beyond the shadows of secrecy is usually met with resistance (see biographical sketches of LGBTIQ Muslims in Hijab: Unveiling Queer Muslim Lives and Kugle, Living Out Islam).
21 Taylor, A Secular Age, 128–9; 159–71.
22 The argument that the more secular orientated a society the greater the probability that LGBTIQ rights will be protected is not necessarily true. The United States only recently recognised same-sex marriages and that too by way of judicial intervention and not parliamentary legislation. In Egypt, homosexual men have been targeted under the Sisi regime which has been widely seen as a more secular administration compared to the former democratically elected Morsi administration, see Nader, “11 ‘homosexuals’ arrested”; Trew, “They’re Here, They’re Queer, They’re Arrested.”
23 Mahmood, Religious Difference in A Secular Age, 21.
24 A possible counter-argument or objection could be that part of the purpose and infrastructure of constructing or maintaining a civic public space is that it enables communities to maintain positions within the “private” space which are not considered acceptable according to dominant standards of public reason at a particular time. Accordingly, to demand that religious communities and/or people who hold specific ethical positions on the basis of their religious beliefs to revise them on the basis that they support a public secular space that accommodates for beliefs and action that are considered religiously unlawful is disingenuous because that negates the reason for supporting the public secular space in the first instance. I acknowledge the validity of this argument, however it does not consider the queer Muslim subject as worthy of also occupying the same private community religious space as a queer Muslim subject who does not reject her/his sexuality as abnormal and/or unnatural and/or unlawful and/or rejected. The point is that queer Muslims are not afforded the same treatment as their heterosexual counterparts within the community as equal Muslims.
25 Asad, “The Idea of an Anthropology of Islam,” 20.
26 MacIntyre, Whose Justice? Which Rationality? 7.
27 Ibid., 1. The late scholar Shahab Ahmad critiques Asad’s positon (and MacIntyre to the extent that it influences Asad’s position) by reading Asad as arguing that Islam is fundamentally a discursive tradition that establishes orthodoxy within a given historical context. Despite being unconvinced by Ahmad’s critique of Asad, Ahmad’s overall point that Islam as a “historical and human phenomenon” (What is Islam? 5) is welcoming and accommodative of contradictory claims that are not restrained by the borders of what is generally considered to be orthodox is important particularly in relation to how same-sex sexuality was received and experienced in pre-modern Muslim societies (see the references in footnote 10). However, queer Muslims today more often than not experience discrimination within their communities on the basis of Islamic law (which is a part of the Islamic tradition that has as its primary purpose the reinforcement of orthodoxy and orthopraxy in Muslim communities) and how that law ultimately more than any other aspect of Islam as a literary, artistic, human and historical phenomenon influences the community’s position on the subject of sexual diversity.
28 In my opinion, the three most comprehensive arguments put forward for the legitimization of same-sex marriage in Islam can be found in Kugle, Islam and Homosexuality; El-Menyawi, “Same-Sex Marriage in Islamic Law”; and Jahangir and Abdullatif, Islamic Law and Muslim Same-Sex Unions. All three works argue from an Islamic perspective, using Islamic jurisprudential tools as well as marshalling modern Western notions of dignity, freedom and equality. What is key here is that all the scholars attempt to argue for a reform of the Islamic legal tradition in a manner that will allow the tradition to accept LGBTIQ Muslims as full human beings that have access to the same social goods in accordance with their sexual orientation. It is obvious that the substance of these arguments is unique and original in that premodern Muslim scholars were closed to the permissibility of sexual intimacy between members of the same sex. These arguments may not be persuasive to all parties and they may be critiqued. However, to simply dismiss these arguments on the basis that these arguments have no precedent in classical Islamic law is to miss the point. The Islamic tradition accepts hierarchical cosmologies that justify and normalise patriarchal dominance and the ultimate authority of the husband in marital relationships (see Chaudhry, Domestic Violence; Hidayatullah, Feminist Edges). In some intrinsic sense the Islamic tradition as it stands may be unable to accommodate or support any of these interpretations be they of a feminist or sexually-sensitive nature (Hidayatullah, Feminist Edges). However, the point is not to affirm this position but rather to treat the tradition as dynamic in so far as Muslims have the freedom to interpret it against a backdrop of a struggle for justice in a patriarchal, heteronormative and homophobic context. To be closed to this option because of its potential revisionist nature is to concede to stunting the growth of the tradition and to accept that the Islamic legal tradition effectively denies justice to a category of persons.
29 In an op-ed piece in the Washington Post, the American traditional scholar Hamza Yusuf opines on how he could have counseled Omar Mateen after learning that Mateen googled his name before the attack. Had Mateen approached him, Hamza says, he would like to think that he could “have dissuaded him or advised him to seek professional help, or at least helped him channel his anger and frustration into something productive and meaningful.” The main issue for Hamza is Mateen’s violent conduct, which is not trivial. However, given some of what has come to light about Mateen, had Mateen informed Hamza about his sexual feelings, it begs the question: what would have been Hamza’s response according to the dictates of “strict Abrahamic morality”? (see Yusuf, “The Orlando Shooter Googled My Name”). Hamza states in an interview soon after the Orlando incident that his “recommendation” to queer Muslims “is not to actively engage in behavior outside of what is permitted in the religion” on the basis that “people can live celibate lives” because Hamza was celibate for many years (Burke, “Muslim leaders”). It is quite remarkable for Hamza to compare his temporary celibacy with recommending permanent celibacy and his confidence in the ethicality and appropriateness of this solution is disconnected from and dismissive of the lived realities and needs of queer Muslims.
30 MacIntyre, Whose Justice? Which Rationality? 362.
31 Omar, “Id Al Fitr Khutbah.”
32 Esack, Qur’an, Liberation & Pluralism, 78.
33 While the act of liwat is the most egregious form of same-sex sexual conduct in terms of Islamic law all other forms of same-sex sexual intimacy short of anal penetrative sex is also prohibited. However, the common automatic association between male same-sex sexual conduct or even “homosexuality” and anal penetrative sex is problematic and untrue. The truth is that same-sex sexual conduct can, and in reality does, include many other actions besides anal penetrative sex. It is beyond the scope of this paper but it would be interesting to investigate if the absence of male anal penetrative sex within a same-sex relationship may alter the dynamic of how the relationship is considered. Perhaps a reconsideration of male same-sex sexuality simply as analogous to anal penetrative sex could yield a discussion or environment that is less scornful even if it may not be completely accepting. In this regard, it would be interesting to see what changes, if any, could come about in the legal and wider religious discourse by divorcing the issue and question of anal penetrative sex from the wider gamut of same-sex sexual conduct.
34 The idea that a religious tradition becomes sterile in that its treatment of certain categories of people are so immoral that there is no other way forward but to seek the destruction of the tradition is an extreme but relevant view to take into account. The South Asian anti-caste and pro-independence activist and intellectual B R Ambedkar stridently attacked Hinduism for its inherent system of caste differentiation and prejudice. I do not think that caste and sexual orientation are similar in that in one way caste is an obvious marker that one cannot conceal or escape while sexual orientation is a more subtle identity form in how it is expressed. The social effects of caste and sexual discrimination are also dissimilar. However, Ambedkar’s argument regarding religion is very applicable to the issue of sexual orientation. Religion, in the terms of Ambedkar’s philosophy, cannot be separated from an egalitarian morality and citizenship. Ambedkar differentiates between rules and principles. Rules are prescriptive and direct an agent on what to do and how to do it while principles are intellectual and not prescriptive. “A principle, such as that of justice, supplies a main heading by reference to which he is to consider the bearings of his desires and purposes, it guides him in his thinking by suggesting to him the important consideration which he should bear in mind.” For Ambedkar, the moment that religion equates to rules is the precise moment when morality and reason are undermined. It is at this juncture that Ambedkar says
[t]he moment it [religion] degenerates into rules it ceases to be religion, as it kills the responsibility which is the essence of a truly religious act … . I have, therefore, no hesitation in saying that such a religion must be destroyed, and I say there is nothing irreligious in working for the destruction of such a religion. (see Ambedkar, Annihilation of Caste, 303–6)
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