Open Islamic Law and Muslim Same-Sex Unions by Junaid Jahangir, Hussein Abdullatif, Scott Siraj Al-Haqq Kugle
Open Islamic Law and Muslim Same-Sex Unions by Junaid Jahangir, Hussein Abdullatif, Scott Siraj Al-Haqq Kugle
Open Islamic Law and Muslim Same-Sex Unions by Junaid Jahangir, Hussein Abdullatif, Scott Siraj Al-Haqq Kugle
S am e - S e x U n ion s
I s lam ic L aw an d M u s lim
S am e - S e x U n ion s
C on t e n t s
Foreword
Scott Siraj al-Haqq Kugle
Acknowledgments
Introduction
1 Some Clarifications
2 Analysis of the Relevant Qur’anic Verses
3 Analyzing the Hadith Tradition: The Prophet,
Companions, and the Followers
4 Sunnī Narratives on Heterosexual Anal Intercourse: Ityān
bi-l-dubur
5 Revisiting Muslim Jurisprudence
6 Addressing the Opinions of Contemporary Scholars
7 Conclusion: Toward a Queer-Positive Muslim
Jurisprudence
Bibliography
Index
About the Authors
F ore w ord
Scott Siraj al-Haqq Kugle
N O T E
1.Kugle, Homosexuality in Islam, conclusion of chapter 4; for examples of
same-sex nikah in practice, see Kugle, Living Out Islam, 107–111.
A c k n ow le d gm e n t s
I n t rod u c t ion
N O T E S
1.While the word queer can represent any sexual or political minority, we will
use it to refer to gays and lesbians.
2.Siraj, The Construction of the Homosexual ‘Other,’ 41–57.
3.Qadhi, Dealing With Homosexual Urges.
C hapt e r 1
S om e C larifi c at ion s
1 .1 T H E F IR S T C L A R IF IC A T IO N
The first clarification that deserves to be made is to
separate queer Muslims from the phenomenon of
exploitative sex between members of the same gender.
Anecdotally, the many instances of same-sex conduct by
straight males despite having recourse to their wives are
not foreign to Muslim societies. This is an important point
because usually men who engage in sexual activity with
other men do not necessarily have a constitutional sexual
orientation toward members of the same sex. Such people
indulge in same-sex acts for a wide variety of reasons that
could include making quick money1 or perhaps procuring
drugs. Furthermore, they might indulge in same-sex acts in
the absence of access to women in prisons or in heavily
gender-segregated cultures. Nadya Labi evokes this point
through the experience of a Filipino expatriate in Saudi
Arabia.
Francis . . . reported that he’s had sex with Saudi men whose wives were
pregnant or menstruating; when those circumstances changed, most of the
men stopped calling. If they can’t use their wives, Francis said, they have
this option with gays. 2
1 .2 T H E S E C O N D C L A R IF IC A T IO N
The second clarification that needs to be made is that queer
Muslims are not deliberately electing a morally wrong choice
for same sex as their inner constitution does not allow them
to marry opposite-sex spouses. Indeed, rulings within a
classical Muslim jurisprudence distinguish between actions
and leanings and are applicable only to the former.
However, leanings, preferences, taste, or tilt as addressed
within classical jurisprudence need to be distinguished from
orientation or inner constitution of an individual as the
former provide a sense of choice, fad, or changeable habit,
whereas the latter indicate an integral or basic attribute of
an individual, which, if unaddressed, would lead to immense
duress on a person’s life. Indeed, within classical
jurisprudence, there have always been rukhaṣ (licenses)
that alleviated and facilitated people under situations which
placed undue duress on their lives.
There does not seem to be a belief in Muslim jurisprudence
that all such licenses have been revealed or that there
would not be further scope for licenses with changes in
social conventions. As an instance, several contemporary
Muslim scholars have issued the license to obtain interest-
based mortgage for buying a house despite the fact that
such an issue does not raise a life or death situation for a
Muslim believer.7 This is an important point to underscore as
some Muslims who issue religious rulings are of the opinion
that licenses are issued only under the life or death situation
as in the case of the Qur’anic facility, based on verse 2:173,
to consume pork under situations of extreme necessity.
Indeed, in the context of same-sex unions for constitutional
Muslim queers, living without any intimacy and
companionship leads to a life of immense isolation and
loneliness. This would go against the spirit of Islamic
teachings and values that seek not to reduce but to
enhance the welfare of human beings. To the extent that
Islam recognizes the genuine needs of human beings and to
the extent the Islamic law serves to enhance the welfare of
believing Muslims, the past rulings on same-sex conduct
based on tilt or leanings need to be replaced with a renewed
approach that accounts for the sexual orientation of a
minority of believing Muslims.
Support for viewing the issue concerning queer Muslims
through the lens of orientation also comes from the
observation that many contemporary Muslim psychiatrists
and jurists have come to concede that orientation for the
same sex is a constitutional part of a minority of human
beings. Dr. Qazi Rahman, a lecturer at the University of
London and coauthor of the book Born Gay: the
Psychobiology of Sex Orientation,8 has jointly stated:
Ultimately, we believe this book will confirm what most of us have always
intuitively felt: that our sexual preference is a fundamental and immutable
component of our human nature.9
1 .3 T H E T H IR D C L A R IF IC A T IO N
The third clarification that needs to be made is to
distinguish between queer Muslims and the historical
classification of individuals as ma’buns—men suffering from
the disease of requiring receptive homosexual anal
intercourse. Historically, according to Dr. Bassem Nathan,
three medical opinions existed among medieval Arabs.
While the first school considered same-sex conduct as
deserving of punishment and the second simply focused on
the mechanics of anal sex, the third school essentially
provided a congenital theory for same-sex conduct.
According to this school, ʾubna (tilt toward receptive
homosexual anal intercourse) results when the maternal
sperm prevails over the paternal sperm.11 It seems that the
physician al-Rāzī (d. 925 CE) was a proponent of the third
school. Based on the medical knowledge of his time, al-Rāzī
stated that ʾubna was the outcome of the contest between
the female sperm and the male sperm.12 According to
Rosenthal, al-Rāzī consideredʾubna to be genetic in that it
was deemed incurable.13 According to Ze’evi, based on al-
Rāzī’s writings, a homosexual male may have different
physical traits than his heterosexual counterparts.
Interestingly, Ze’evi indicates a chart, based on Arabic and
Turkish texts of the sixteenth and seventeenth centuries,
that illustrates how the shape of fingers can be associated
with homosexuals, drunks, and whores.14
According to Boswell, many Muslim scientific writers,
besides al-Rāzī, believed that homosexuality was
inherited. This corresponds with the third school indicated
by Dr. Bassem Nathan. Apart from Muslim physicians, other
scholars like the Nestorian Christian Ḥunayn ibn Ishāq (d.
873 CE)15 and the Melkite Christian Qusṭā ibn Lūqā (d. 912
CE) also subscribed to the view that homosexuality was
an inherent trait. In fact, Qusṭā ibn Lūqā provided a
classification of men indicating some men are yamīlu ʾilā
(disposed) toward women, some toward men, and some
toward both.16
According to Sahar Amer, scholars also understood
lesbianism as an inherent trait.17 She quotes al-Kindī (d.
873 CE) stating, like Galen (d. 199/217 CE), that
lesbianism was caused by heat generated in the labia
which could only be reduced by orgasm with another
woman. This viewpoint corresponds with the ideas of the
second school mentioned by Bassem Nathan. Sahar Amer
also mentions Yūḥannā ibn Māsawayh (d. 857 CE) as
indicating that lesbianism was an outcome when a nursing
woman eats celery, rocket, melilot leaves, and the flowers of
a bitter orange tree. Likewise, the physician Al-Samawʾal ibn
Yaḥyā (d. 1180) explained the physiological causes of
lesbianism, specifically grinding, through rationales of
coldness, shortness, deficiencies, or illnesses of wombs.18
The viewpoints of al-Kindī, Ibn Māsawayh, and Ibn Yaḥyā
indicate that lesbianism was explained on the basis of
physical traits or childhood exposure to the effects of certain
foods.
While it may be tempting to argue that past Muslim
scholars, especially on the basis of the work by scholars like
Boswell and Amer who have used homosexuality and
lesbianism, did have a theory of sexual orientation, yet it
deserves to be underscored that they were trying to explain
the itch for receptive homosexual anal intercourse and
itch for rubbing labias, which were viewed as a tilt toward
bad habits, as opposed to sexual orientation, which alludes
to an individual’s inner constitution. Ze’evi’s allusion to
texts from the sixteenth and seventeenth centuries that
associated homosexuals with drunks and whores suggests
that past Muslim scholars were using a medical framework
to explain habits like drinking and prostitution and as such
equated same-sex conduct on a par with them, instead of
viewing same-sex conduct on the basis of something more
integral and constitutional like sexual orientation.
This distinction between the tilt for receptive homosexual
anal intercourse and orientation toward a member of the
same sex is usually missed when contemporary Muslims,
who issue religious opinions based on their reading of the
Muslim texts, equate queer Muslims with ma’buns. As an
example, Hamza Yusuf refers to Muḥammad al-Dasūqī’s (d.
1815) work to indicate that past Muslim scholars ruled on
issues concerning queer Muslims. Yusuf quotes Muḥammad
al-Dasūqī as having written that it is discouraged [but not
prohibited] for a eunuch (khasi) or homosexual (maʾbūn) to
be a regular prayer leader and that
it is disliked [but still valid] for a maʾbūn to be an assigned leader of the
obligatory prayers as well as for communal supererogatory prayers, but not
tarawih, or travelers’ prayers, or as someone who leads them on occasion.
And the intended meaning of maʾbūn is a male who is effeminate in his
speech, similar to a woman’s speech, or someone who desires rectal
intercourse but doesn’t practice it, or someone who has practiced it but since
repented yet, nonetheless, has set tongues wagging.19
1 .4 T H E F O U R T H C L A R IF IC A T IO N
This necessitates the fourth clarification, based on which the
concerns of queer Muslims cannot be reduced to the issue
of permissibility of sexual contact but rather involve holistic
lives that include the need for intimacy and companionship.
Indeed, just as the Muslim marriage contract places limits
on the sexual expression of opposite-sex spouses, there
may be similar restrictions placed on partners in Muslim
same-sex unions formulated within an Islamic framework,
which will have to be studied and discussed later. Indeed,
not all queer Muslims indulge in the practice of homosexual
anal intercourse, which further weakens the argument that
conflates queer Muslims with ma’buns and substantiates the
point that individuals cannot be defined by specific sexual
practices.
As a matter of fact, some heterosexual Muslims indulge in
anal sex. According to Shī‘ī jurisprudence, anal sex is
permissible with one’s wife with her approval, albeit it is
strongly disliked. Notwithstanding the rulings that prohibit
heterosexual anal sex within Sunnī jurisprudence, several
husbands insist on this act as evident from various online
Islam Q&A websites. In fact, one sex columnist writes on the
distinction between anal sex and being gay.
Many gay men do not have anal sex. In fact, oral sex and mutual
masturbation are more common than anal stimulation among gay men in
long-term relationships. . . . Studies indicate that about 25 percent of
heterosexual couples have had anal sex at least once, and 10 percent
regularly have anal penetration.23
N O T E S
1. Brad Hammer, Gay for pay porn stars: Are they really gay? Huffington
Post, December 27, 2013, accessed August 2015.
2. Nadya Labi, The Kingdom in the closet, The Atlantic Magazine, May
2007, accessed January 26, 2016,
http://www.theatlantic.com/magazine/archive/2007/05/the-kingdom-in-the-
closet/5774/.
3. Arno Schmitt and Jehoeda Sofer, Sexuality and Eroticism among Males in
Moslem Societies, (New York: The Haworth Press, 1992), 66.
4. Frontline, The Dancing Boys of Afghanistan, PBS Documentary, 2010,
accessed January 26, 2016,
http://www.pbs.org/wgbh/pages/frontline/dancingboys/.
5. Christian Lange, Justice, Punishment and the Medieval Muslim Imagination,
(Cambridge: Cambridge University Press, 2008), 193.
6. An-Nawawi’s 40 Hadith, Hadith No. 1, ahadith.co.uk, accessed January
25, 2016, http://ahadith.co.uk/hadithwithcommentary.php?id=441&cid=11.
7. European Council for Fatwa and Research’s Resolution on Permissibility of
conventional mortgage under necessity, 1999, accessed January 26, 2016,
http://www.globalwebpost.com/farooqm/study_res/i_econ_fin/ecfr-
fatwa_mortgage.htm.
8. Glenn Wilson and Qazi Rahman, Born Gay: The Psychobiology of Sex
Orientation, (London: Peter Owen, 2005).
9. Wilson and Rahman, Born Gay, 11.
10. Mohammad Hashim Kamali, Transgenders and Justice in Islam, New Straits
Times, November 24, 2011, accessed January 26, 2016,
http://www.hashimkamali.com/index.php/publications/item/23-transgenders-and-
justice-in-islam.
11. Bassem Nathan, Medieval Arabic medical views on male homosexuality,
Journal of Homosexuality 26 (1994): 37–9.
12. Dror Ze’evi, Producing Desire: Changing Sexual Discourse in the Ottoman
Middle East, 1500–1900, (Berkeley: University of California Press, 2006), 38.
13. Franz Rosenthal, Ar-Râ zî on the hidden illness, Bulletin of the History of
Medicine 52 (1978): 45–60, accessed January 27, 2016,
http://williamapercy.com/wiki/images/Ar-Razi_on_the_Hidden_Illness.pdf.
14. Ze’evi, Producing Desire, 29.
15. Husain F. Nagamia, and Nasir Puyan, Abū Zayd Ḥunayn ibn Isḥāq al-‘Ibādī:
a physician translator par excellence, Journal of Islamic Medical Association of
North America 40 (2008): 9–14, accessed January 26, 2016,
http://dx.doi.org/10.5915/40–1-5279.
16. John Boswell, Revolutions, universals, and sexual categories, in Hidden
from History: Reclaiming the Gay and Lesbian Past, ed. Duberman M., Vicinus M.,
Chauncey Jr, G, (New York: Meridian, 1989), accessed January 26, 2016,
http://history.msu.edu/hst420/files/2013/03/Boswell__Revolutions__Universals__a
nd_Se.pdf.
17. Sahar Amer, Medieval Arab lesbians and lesbian-like women, Journal of
the History of Sexuality 18 (2009): 215–36.
18. Samar Habib, Arabo-Islamic Texts on Female Homosexuality, 850–1780
A.D, (New York: Teneo Press, 2009).
19. Hamza Yusuf, Tempest in a teapot: Islamophobia meets homophobia.
Sandala, May 8, 2013, accessed January 27, 2016,
https://www.sandala.org/blog/tempest-in-a-teapot-islamophobia-meets-
homophobia.
20. Kuwaiti Encyclopedia of Fiqh, Entry: khunthā mushkil, 212 in اﻟﻤﻮﺳﻮﻋﺔ
[ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe Golden Encyclopedia of the Prophetic
Golden Hadeeth and its Sciences], 2nd edition, (London: Turath Publishing), CD-
ROM.
21. Why does Islam forbid lesbianism and homosexuality? Islam QA,
accessed January 25, 2016, http://islamqa.info/en/10050.
22. Afsaneh Najmabadi, Types, Acts or What? Regulation of sexuality in
nineteenth century Iran, in Islamicate Sexualities, eds. Kathryn Babayan and
Afsaneh Najmabadi, (Cambridge: Harvard University Center for Middle Eastern
Studies, 2008), 278.
23. Not all gay men have anal sex, Alice! Health Promotion, Last modified
June 13, 2008, http://goaskalice.columbia.edu/not-all-gay-men-have-anal-sex.
24. HIV/AIDS At risk groups—other groups, Global Health Council, [n.d.],
accessed January 26, 2016,
http://web.archive.org/web/20110728031548/http://www.globalhealth.org/hiv_ai
ds/risk_groups2/.
C hapt e r 2
A n alys is of t he R e le v an t
Q u r’ an ic V e rs e s
2 .1 T H E R A N G E O F S C H O L A R L Y O P IN IO N O N O R A L S E X
Take for instance the sexual act of oral sex. The reasoning of
those who deem it prohibited includes avoiding total nudity
during sex, not reducing oneself to a sub-animal level,
indicating that the mouth is used for reading the Qur’an,
mentioning that even lowly beasts do not indulge in such an
act and noting that the mouth is not a receptacle for
impurity for even the umbilical cord is not attached to the
mouth of the fetus.21 Other reasons that oral sex is
prohibited are that the preseminal discharge is
jurisprudentially considered impure, verse 2:222 directs
Muslims to approach women in the manner God has
commanded, which is construed as referring to vaginal
intercourse, that oral sex is against modesty or deemed
reprehensible according to past fatwās, and that conduct
like masturbation, sex during menstruation, anal sex, and
sodomy are accepted by the kuffār—infidels.22 Furthermore,
some contend that oral sex contravenes adab—proper
Islamic behavior and goes against fiṭra—human nature.23
However, none of the reasons advanced for the prohibition
of oral sex have a strong textual corroboration. The
arguments that allude to proper Islamic behavior,
immodesty, avoiding complete nudity during sexual
intercourse, and reducing oneself to the level of animals or
beneath them reflect personal taste and disgust. The
argument that infidels accept sexual conduct like
masturbation, sex during menstruation, and anal sex and so
Muslims must reject such acts is a weak one to make. While
sex during menstruation is forbidden by verse 2:222,
masturbation is deemed permissible, as will be elaborated
later, based on texts cited by Ibn Ḥazm and even based on
verse 2:222. Heterosexual anal sex is not deemed forbidden
in Shī‘ī jurisprudence. While some Sunnī jurists use verse
2:222 to prohibit heterosexual anal intercourse, it is not
generally used to forbid oral sex or sexual foreplay. The fiṭra
argument seems to be stretched, for as noted before, it is
generally understood in the context of man’s disposition
toward monotheism rather than specific sexual acts. Finally,
the argument of having impurity in the mouth requires
further scrutiny.
A difference of opinion exists within the four Sunnī schools
of jurisprudence on the purity of secretions from the
genitals. This difference of opinion seemingly stems from
qiyās—analogical deduction—and the difference arises
based on whether such secretions are compared to breast
milk and spittle, which are deemed pure, or to feces and
urine, which are considered impure. According to a
conservative Muslim authority, Abu Ḥanīfa (d. 767) and
Mālik ibn Anas (d. 795) consider semen as impure and
whereas Shāfiʿī (d. 820) and Aḥmad ibn Ḥanbal (d. 855)
deemed semen as pure, all deemed the preseminal liquid
and its vaginal equivalent as impure.24 However, another
conservative scholar contends that jurists like Ibn ʿĀbidīn (d.
1836) and Ibn Ḥazm (d. 1064) considered vaginal secretions
as pure and the reasons that have been forwarded for such
a position include the absence of texts deeming them
impure, that things are pure unless a text deems them
impure, the fact that vaginal secretions are not secreted
from the urethra or anus, that such secretions are
discharged even in the absence of sexual desire and that
they do not necessitate ghusl—bathing to attain purity.25
Given the difference of opinion on genital secretions, which
based on the reasoning of scholars seems to rest upon
qiyās, it seems that there cannot be an absolute position on
the impurity of genital secretions and thus the
impermissibility of oral sex cannot be deemed absolute. It is
perhaps for this reason that several scholars deem oral sex
as permissible based on a wide array of reasons.
A group of Salafi scholars base permissibility of the act on
the texts attributed to the Prophet that encourage foreplay
between spouses. Shāfiʿī scholars also deem oral sex as
permissible as one of the opinions of Shāfiʿī (d. 820) is
presented as that falling short of heterosexual anal sex the
whole body could be enjoyed.26 Egyptian sexologist Heba
Qutb’s reasoning on permissibility is based on the fact that
there exists no text that prohibits the act. This can be
coupled with the fact that in Islamic jurisprudence, in the
context of muʿāmalāt (social transactions) things are
deemed permissible unless expressly prohibited. Dr. Ali
Jumah’s opinion is based on the reasoning that such an act
between spouses keeps them away from illicit acts. Mālikī
jurists claim there is no harm in the act. Some scholars
believe that since genitalia are not dirty like the anus,
therefore oral sex would be permissible. Contemporary
scholar Sheikh al-Turayri’s opinion on permissibility of oral
sex is based on the arguments that, apart from heterosexual
anal sex and sex during menstruation, all other acts are
permissible between spouses, dislike of a practice does not
render it impermissible, female genitals are not impure, and
that the possibility of the existence of impurity does not
render the act impermissible.27
It seems that the predominant reasoning behind the
prohibition of oral sex hinges on the issue of impurity and
hence harm, whereas permissibility is based on the
argument of the absence of an express text that prohibits
the act and the fact that acts are deemed pure and
permissible otherwise. The impurity aspect is also contested
as at least outer genitalia are deemed without impurity,
which is reserved for urine and feces. That the aspect of
impurity governs the permissibility of oral sex can also be
noted from the opinion in Hanbali jurisprudence, based on
which oral sex is permissible before penetration and is
considered reprehensible after penetration and from the
opinion that even though Shāfiʿī and Hanbali jurists consider
sperm to be pure, they deem it unlawful to swallow.28
However, to the extent impurity is absent and to the extent
the harm of oral sex as studied in light of contemporary
scientific knowledge is deemed next to negligible, the
prohibition on oral sex cannot stand, especially given the
stark absence of textual prohibition.
Textual arguments seem to take precedence over impurity
arguments. This is why even though the anus is deemed
impure because of the argument that noxiousness is always
present in contrast to the vagina where noxiousness is
present only during menstruation, given that usually the
textual argument is made against heterosexual anal sex and
sex during menstruation, any act related to the anus other
than penetration is deemed permissible by those who
uphold this line of reasoning. Thus, enjoyment of the anus
without penetration is deemed permissible.29
Notwithstanding the arguments of impurity and the concern
of mimicking the actions of the people of Lūṭ, some
contemporary scholars like Habeeb Alli deem not just
touching but also rimming as permissible. While Habeeb Alli
has asserted the prohibition of using anal toys, he allows for
the use of vaginal toys.30 Alli’s opinion on the use of vaginal
toys may have precedent in the opinion of Ḥasan Baṣrī (d.
728) who stated that there is no harm in a woman inserting
an object in her vagina to protect herself from the desire to
commit zinā (fornication).31
Thus, to the extent that acts like oral sex, rimming, and the
use of sex toys are not considered prohibited, it may be
concluded that in the context of same-sex relationships, the
key issue at hand is not that the acts are intrinsically qubḥ
(evil) but the absence of a legal contract that makes such
acts permissible. As such, if sexual acts other than vaginal
intercourse are not evil per se and that the jurists have not
addressed the issue of a legal contract between members of
the same sex or dismissed such a contract based on their
notion of gender, as informed by the constructs of their
times, then it stands to reason to revisit the opinion on
same-sex relationships.
2 .2 T H E R A N G E O F S C H O L A R L Y O P IN IO N O N
M A S T U R BA T I O N
However, verses 23:5–7 have been subject to different
interpretations. Several past scholars interpreted the verses
to forbid any sexual activity including masturbation outside
the folds of nikāḥ. They opine that since there is no text that
permits masturbation, the asl (original proof) is prohibition32
and as such one who masturbates would be transgressing
limits.
According to online fatwa sites, Mālik (d. 795) opined that
verses 23:5–7 defined the masturbator as one who
exceeded limits,33 whereas, Shāfiʿī (d. 820), using a similar
argument, deemed masturbation to be prohibited and
invoked verse 24:33 to counsel patience.34
And let those who do not find the means to marry keep chaste until Allah
makes them free from want out of His grace. (24:33)
2 .3 V E R S E S O N T H E P E O P L E O F L Ū Ṭ
The verses on the people of Lūṭ may be addressed through
at least six different lines of arguments. First, Ibn Ḥazm’s (d.
1064) passionate critique indicates that the people of Lūṭ
were chiefly destroyed for their unbelief in God and rejection
of His Messenger rather than liwāṭ, a point which is not
contested by any traditional Tafsīr—commentary of the
Qur’an.56 This argument helps reject many weak Hadith and
traditions that are used to prescribe horrific penalties for
liwāṭ.
Second, the commentaries on verse 7:80 by Ibn Kathīr (d.
1373), Ṭabarī (d. 923), and Qurṭubī (d. 1273) can be
examined more carefully. The history of Ṭabarī indicates:
God’s statement, such as no one did before you in both worlds, refers to
the fact that no male jumped upon a male before the people of Lot.57
2 .4 A C O N T E X T U A L A N A L Y S IS O F T H E V E R S E S O N T H E
P E O P L E O F L Ū Ṭ
The second, third, and fourth arguments are aimed at
raising questions to motivate a revisiting of these verses.
They form a prelude to both the contextual and linguistic
analyses of the verses on the people of Lūṭ. A contextual
analysis may form the fifth line of argument in developing a
different understanding of the relevant verses from that of
conservative Muslims. This argument can potentially build
on verse 29:29. The Qiṣaṣ al-Anbiyāʾ texts, the traditions
compiled in Tārīkh Ṭabarī, and the Tafsīr of Jalalayn
would bolster the argument based on verse 29:29. While
some of the texts are from the Isra’iliyyat (narratives
originating from Judeo-Christian sources), since they are
sometimes used by those who condemn same-sex
relationships, it is only reasonable to quote them to depict
the whole picture of the conduct of the people of Lūṭ.
Essentially, the argument would be to emphasize the point
of why the people of Lūṭ were destroyed as opposed to
simplistically stating that they were destroyed for
homosexual conduct. This contextual analysis would tend
to bring in subtlety and nuance to an oversimplified
understanding of the story of the people of Lūṭ. The crux of
the argument is that verse 29:29 expressly states that the
people of Lūṭ approached males and ambushed travelers
and committed evil deeds in their assemblies. One of the
Shī‘ī commentaries on the Qur’an, the Tafsīr nūr al-
thaqalayn, indicates that that the people of Lūṭ would
perpetrate liwāṭ on youth to the extent that blood would
pass from the anus76 and demanded two of the three angels
disguised as youths who had come to visit Lūṭ,77 despite the
fact that they were married.78 Likewise, the commentaries
of Qurṭubī (d. 1273), al-Bayḍāwī (d. 1260), Abu Ḥayyān (d.
1344), and some others also contain quotes from Ibn ʿAbbās
(d. 687) that the people of Lūṭ were married and/or they had
approached Lūṭ earlier for marrying his daughters.
They [people of Lot] asked him before to marry his daughters but he refused
since they are infidels and not good people. In their customs and traditions, if
a man is refused by the father of a girl, then he shall never ask for her hand
again.
Their [people of Lot] custom was to marry only one woman, and they were all
married, so providing his daughters for them was pointless for them. (Ibn
ʿAbbās)79
The argument that the people of Lūṭ had wives can also be
substantiated from the commentaries of al-Rāzī (d. 1209),
Ṭabrasī (d. 1153), Samarqandī (d. 983), and Ṭabarī (d. 923)
on verses 11:77–82, which provide explanations on Lūṭ’s
offer of his daughters. According to them, one possible
explanation was that through the offer of daughters, Lūṭ was
essentially telling the unruly mob to have sex with their own
wives.
Like the Qiṣaṣ al-Anbiyāʾ by Rāwandī, the Tafsīr nūr al-
thaqalayn also indicates that the root cause of their
incurable disease and conduct was miserliness, which they
perpetrated on travelers in order to drive them away.80 They
also threatened Lūṭ, who would secretly provide hospitality,
that they would denigrate his guests.81
The conduct of the people of Lūṭ in open assemblies and
on the highway is amply elaborated in the various Qiṣaṣ,
Ṭabarī, and the Jalālayn texts. While some Qiṣaṣ texts
indicate that the people of Lūṭ sodomized travelers during a
period of famine, commentators like Jalāl al-Dīn al-Maḥallī
(d. 1459) and Jalāl al-Dīn al-Suyūṭī (d. 1505) state that the
people of Lūṭ sodomized travelers to drive them away from
their prosperous land.82 Regardless, a holistic view of these
narratives and traditions paints a picture of coercive
conduct of the people of Lūṭ. This then weakens any
analogy between the people of Lūṭ and contemporary gays
and lesbians. Excerpts of the Jalālayn and Qiṣaṣ narratives
are provided below.
They 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. (Tafsīr Jalālayn)83
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
(faḍaḥahu) 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. (Qiṣaṣ al-Anbiyāʾ by al-Rāwandī)84
The people went outside the city walls, searching for people whom they could
debauch [yafjurūna bihi]. . . . It became a habitual custom for them with any
stranger who wandered onto their lands. Corruption spread among them.
(Qiṣaṣ al-Anbiyāʾ by al-Kisāʾī)85
From far and beyond merchants came to Sodom with bags of gold, hoping to
buy grain, but the Sodomites . . . forced the grain merchants to commit
abominations with them in lieu of payment. (Qiṣaṣ al-Anbiyāʾ by al-
Kisāʾī/Thaʿlabī)86
Likewise, the Shī‘ī Tafsīr (commentary) compiled by
Ayatollah Sayyid Kamal Faghih Imani and others indicates in
the context of verses 7:80–81 that the miserly people of Lūṭ
committed sodomy so that travelers would be afraid of
being guests.87 A similar viewpoint is found in an Ahmadi
Tafsīr that indicates that the people of Lūṭ would not allow
strangers enter their towns as they were in a state of war
with their neighbors and so they would plunder wayfarers.88
The Tārīkh Ṭabarī texts89 are diverse in nature in that they
allude to a whole array of the crimes of the people of Lūṭ
ranging from passing gas, lewdness, and intercourse to
highway robbery, rape, and murder. Like other narratives,
the authenticity of these narratives is questionable;
however, they usually get sidelined when other weak texts
are used to prescribe penalties for homosexual conduct. As
such, these narratives deserve to be highlighted. The
narratives that allude to lewdness and intercourse do not
specify whether the conduct was consensual or forced. The
narratives from Ibn Zayd and others are clear on the sexual
aggression of the people of Lūṭ; however, the narrative from
Mujāhid (d. 722) is open to interpretation. Likewise, without
mentioning sexual aggression in the commentary for verses
26:165–166, Zamakhsharī (d. 1144) writes that the people
of Lūṭ were condemned for exclusively penetrating males,
while abandoning their wives. However, it is interesting to
note that Zamakhsharī is only considering the active partner
in the act of liwāṭ, which suggests that the act as defined by
Zamakhsharī may not be consensual. Regardless, the less
specific narratives may be qualified in light of the following
narratives that allude to rape and murder.
• [Yūnūs → Ibn Wahb → 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.
• [Yūnūs → Ibn Wahb → Ibn Zayd]: As for God’s statement,
You cut the roads, the road is the way of the traveler.
When the traveler, the son of the road, passed by them,
they would block the road and perform with them that ugly
deed.
• [Ibn Ḥumayd → Yaḥyā b. Wāḍiḥ → ʿUmar b. Abī Zāʾida →
ʿIkrima]: Concerning his statement, You commit
abominations in your assemblies, it means they used to
molest wayfarers, shortening those who passed by them.
Footnote (on shortening): . . . form of torture, including a
procrustean bed which was either too short or too long.
The hapless wayfarer was made to fit the bed by force,
which often resulted in his death.
• [Mūsā b. Hārūn → ʿAmr b. Ḥammād → Asbāṭ → al-Suddī →
Abu Mālik and Abu Ṣāliḥ → Ibn ʿAbbās and Murra al-
Hamdānī → Ibn Masʿūd and some Companions]: The quote,
And you commit abominations in your assemblies,
means they would shorten everyone who passed by them,
and that was the abomination.
• [Mūsā b. Hārūn → ʿAmr b. Ḥammād → Asbāṭ → al-Suddī →
Abu Mālik and Abu Ṣāliḥ → Ibn ʿAbbās and Murra al-
Hamdānī → Ibn Masʿūd and some Companions]: (Lot’s
daughter) was afraid of what her people might do to them,
so she went to her father and said, Some young men
want you at the gate of the city. . . . Let your people not
seize them and violate them. His people had forbidden
Lot to show hospitality to anyone; they had said to him,
Leave them to us. We will give hospitality to the men.
2 .5 A L IN G U IS T IC A N A L Y S IS O F T H E V E R S E S O N T H E
P E O P L E O F L Ū Ṭ
Conservative Muslims contend that the phrases connoting
approaching males —A taʾtūna al-dhukrān (26:165) or
lataʾtūna al-rijāl (7:81 and 27:55)—refer to liwāṭ, which is
one among other crimes for which the people of Lūṭ were
destroyed. It seems that by putting aside a holistic view of
the relevant verses and simply focusing on these two
phrases, conservative Muslims forbid homosexual conduct.
Thus, the sixth line of argument comprises of a linguistic
analysis of the Qur’anic Arabic text that specifically includes
addressing these Arabic phrases. Conservative Muslims may
translate the Arabic phrases as connoting approaching
males in a manner similar to men approaching their wives
in the context of verses 2:222–223 that use the verb faʾtu-
approach of the same Arabic root as for the verb atā
(approaching).
Given that atā has been used as a euphemism,90 the
phrases can be alternatively translated as connoting
aggressively pursuing nonreceptive males. Based on
Edward Lane’s Lexicon,91 the verb atā denotes the
meanings of pursue, hasten, and the act of propelling
or impelling—particularly of an arrow from a bow. Likewise,
based on Lisān al-ʿArab, the word dhukran used for males, in
contrast to the word unthā for females, connotes a
nonreceptive entity. When viewed through this lens, one
may argue that forceful approaching of a nonreceptive
entity constitutes rape.
However, one argument that is usually proffered in the
context of the part you approach men instead of women
used in verses 7:81 and 27:55 is that if we were to translate
these verses to mean raping men instead of approaching
men, then that would imply erroneously that the verses are
suggesting raping women instead of approaching them.
However, translating the phrase as you rape men instead
of women would be incorrect as the word ightiṣāb (rape)
has not been used directly in these verses. Instead, the
translation you approach men (nonreceptive entities)
instead of women (receptive entities) seems to be the
appropriate translation and rape is inferred in the sense of
approaching men, who are generally not receptive to the
sexual advances of other men. Likewise, while women may
not be receptive to the sexual advances of some men,
based on the notion of gender as understood by the past
jurists, women were assumed to be receptive to the sexual
advances of men in general. This line of argument may be
strengthened from a careful examination of the writings of
the exegetes and jurists beyond the apparent verdicts of
condemnation and prohibition of liwāṭ to investigate the
assumptions and reasoning that led to their opinions.
Translating the phrases A taʾtūna al-dhukrān and lataʾtūna
al-rijāl to connote the pursuit of nonreceptive males may
perhaps be more consistent with the classical understanding
of the verses. As noted earlier, jurists and scholars like Abu
Ḥanīfa (d. 767) and Ibn Taymiyya (d. 1328) believed, based
on the sociocultural norms of their times, that no man in his
right mind would allow another man to penetrate him unless
for illness, money, or coercion.
Jurists referred to ʾubna—illness described as requiring
receptive homosexual anal intercourse in the context of
liwāṭ when it was not inflicted on youth or male slaves. It is
interesting to note that liwāṭ was associated with various
segments of Muslim societies, including Muslim leaders,
jurists, and ḥuffāẓ-memorizers of the Qur’an.92 As noted by
Rāghib Iṣfahānī (d. 1109), Muslim scholar Abdullah ibn
Mubārak (d. 797) was alleged to have wanted tough men to
alleviate his ʾubna93 and likewise jurists like Ibn ʿArabī (d.
1148) noted that the scholar al-Kisāʾī al-Kūfī (d. 804) openly
confessed to engaging in same-sex conduct.94 Likewise, al-
Dhahabī (d. 1348) noted that while the Caliph Walīd ibn ʿAbd
al-Malik (d. 715) was not a kāfir (disbeliever) or zindīq
(heretic), he was rather an alcoholic and a Lūṭī, and he also
noted that his brother Sulaymān ibn Yazīd (d. 717) alleged
that he attempted to rāwadanī ʿalā nafsī—seduce him.95
Given that same-sex conduct was viewed in the context of
illness or exploitation through money or coercion, and
associated with vices that include alcoholism and incest, it
is also possible that many narratives that involve allegations
of liwāṭ or ʾubna may have been manufactured, through
which opponents were sought to be discredited. For
instance, while Walīd has been alleged to have seduced his
brother, in Tafsīr Ibn Kathīr, he is viewed as expressing
contempt for liwāṭ and stating that if God had not
mentioned about the people of Lūṭ, then people may not
have indulged in such bad actions.96 Likewise, al-Damīrī (d.
1405) noted that the Companion al-Ḥakam ibn Abi al-ʿĀṣ
and Abu Jahl (d. 624) were yurmā bi al-dāʾ al-ʿaḍḍāl—
allegedly known for having the tough disease, which refers
to ʾubna.97 Abu Jahl has also been portrayed as suffering
from ʾubna, which he satisfied with stones instead of
allowing himself to be penetrated.98 However, such texts
and those that involve the mukhannathūn—feminine males
are inaccurately translated to construe the mentioned
people as homosexuals. For instance, the phrase yuʾtā fī
duburih in a text referred by al-ʿAynī (d. 855) has been
translated to equate mukhannathūn with homosexuals,
whereas the appropriate translation of the phrase is, a
person taken from behind, that is, passive recipient of
homosexual anal intercourse.99
The passive partner was predominantly a youth whose
consent was not assumed in the act. Rowson references the
term ijāra, which refers to the practice of a youth submitting
to homosexual anal penetration for pecuniary reasons as
opposed to any pleasure. He refers to the phrase by the
jurist al-Jurjānī (d. 1089), He takes from the basin and
spends on the pitcher, which indicated the youth’s interest
in females, which he pursued by being a rent-boy.100 He also
refers to dabīb (creeping), the practice of initiating
homosexual anal intercourse with a sleeping youth, which
was not considered parallel to ightiṣāb (rape) as the youth
was considered to not have suffered any permanent injury
to his manliness.101
Both Abu Ḥanīfa and Ibn Taymiyya opine, as noted below,
that the verses addressed the active partner instead of the
passive partner, thereby substantiating the argument that
the phrase lataʾtūna al-rijāl in verses 7:81 and 27:55 is
better understood as pursuing nonreceptive males.
In liwāṭ, even though the active partner desires it, the passive partner does
not by nature, and that is different from Zinā, where the attraction happens
on both sides. (Abu Ḥanīfa in Tafsīr al-Rāzī for 24:2)102
The address was to the active partner because he was the one with the
desire. . . . This is opposite to the passive partner for he has no sexual desire
(for the act) to start with, except that it happens to him because of disease or
money that he takes from the active partner or another aim. (Ibn Taymiyya in
Tafsīr of chapter 24)103
2 .6 L Ū Ṭ ’S O F F E R O F H IS D A U G H T E R S
A similar difference of opinion on linguistics arises on the
issue of Lūṭ’s offer of his daughters mentioned in verses
11:78–79 and 15:67–72. Conservative Muslims may argue
that the offer of daughters substantiates that heterosexual
relationships are preferred to homosexual relationships.
They question that if the crime of the people of Lūṭ was
exclusively that of coercion and rape then why did Lūṭ offer
his daughters up to the community to substitute for the
male guests? Since a prophet of God cannot partake in
injustice, conservative Muslims claim that the verse cannot
allude to rape but rather consensual relations.
However, these verses pushed traditional exegetes to
explain why a prophet of God might offer his own daughters
to a crowd of transgressors. It is in the commentaries of the
traditional exegetes and the meaning of key words from this
verse and other allied verses that perhaps this issue can be
effectively addressed. The various commentaries of al-Rāzī
(d. 1209), Ṭabrasī (d. 1153), Samarqandī (d. 983), and
Ṭabarī (d. 923) actually present two possibilities of
understanding these verses. Either they qualify that Lūṭ
offered his daughters for marriage, or perhaps more
plausibly, Lūṭ is merely telling them to go back to their
wives. According to the second opinion, at least it becomes
apparent that despite being married, the people of Lūṭ
persisted in debauching his male guests. The two
possibilities from the four Qur’an commentaries are
summarized below.
1. He offered his daughters for marriage.
2. He was really offering the women of his town, because a
Prophet is the father of his people. . . . When he offered
the women of the town, he was offering them to have sex
with their own wives.140
The commentary of Qurṭubī (d. 1273) on verse 11:78
actually alludes toward two more potential understandings
of the problematic part of Lūṭ offering his daughters. Qurṭubī
raises the possibility that Lūṭ merely wished to prick the
conscience of his people and therefore did not actually offer
his daughters.
3. He was pointing to them that doing zinā with his
daughters is ḥarām and doing it with his guests is worse.
Here the example is one wanting to embezzle some money
and the other would say: it is better to steal.
4. He was not offering anything but said that to make them
go away.141
Based on the first and third opinion, conservative Muslims
may argue that the commentators are perhaps advising of
establishing opposite gender relationships against having
same-sex relationships. This argument is sometimes
bolstered by an allusion to the word aṭhar used in verse
11:78 to depict purity, and on the basis of this word, it is
argued that since rape connotes aggression and oppression,
it could not be the opposite of pure. Therefore, it is argued
that the verse 11:78 is condemning same-sex unions by
contrasting them to the pure alternative of heterosexual
marriage. However, it is to be noted that the word aṭhar
technically means purer or less dirty as opposed to its
antonym anjas which means dirtier or less pure. Therefore,
purer could simply be the less dirty of the two options and
thus the opinion that Lūṭ was contrasting sexual misconduct
with women, receptive entities, who would be more
susceptible to the advances of males, with the rape of male
guests, nonreceptive entities, who would not be susceptible
to be encroached upon in that manner. This point gets
bolstered by the third opinion which contrasts zinā with
daughters to sexual conduct with guests.
According to another line of thought, the contrast between
daughters and guests as a comparison between females
and males is only part of the story. Another major
comparison emphasizes the point that the daughters were
Lūṭ’s responsibility, and perhaps owing to the social norms
of that age Lūṭ had the authority to offer them whereas he
did not have authority to offer his guests. Lūṭ could offer his
daughters, as the Shī‘ī Tafsīr (commentary) compiled by
Ayatollah Sayyid Kamal Faghih Imani and others indicates in
the context of verse 15:71 that it could be possible that
marriage with unbelievers was not legally prohibited at that
time.142 Therefore, the option of offering his daughters
could be purer because he had the jurisdiction to do so
whereas he did not have the authority to offer the guests,
especially as he was obliged to protect them. Thus apart
from the contrast between males and females, the
dimension of jurisdictional authority makes deducing any
ruling on same-sex conduct based on these verses more
complex.
While the word aṭhar means purer, and therefore allows for
the comparison between a dirty and dirtier option, the word
yataṭahharūn used in verses 7:82 and 27:56, used for Lūṭ
and his followers, connotes active purification, and therefore
may be used to contrast people indulging in same-sex
conduct with those who abstain from it. However, neither
7:82 nor 27:56 specifies that from a whole array of sins,
rejecting God’s Prophet, committing highway robbery, and
other evil acts in assemblies, it was specifically the one act
of homosexual anal penetration that distinguished Lūṭ’s
followers from the rest. This line of reasoning gets bolstered
by al-Rāzī’s commentary that the word yataṭahharūn (pure)
could be understood in several different ways. It could refer
to someone who abstained from sodomy, but it could also
refer to someone who abstained from sin. Al-Rāzī further
adds that perhaps this word was used by the people of Lūṭ
to simply mock Lūṭ and his followers and as such did not
carry a specific meaning. This would indicate that merely on
the basis of the words aṭhar (purer) and yataṭahharūn
(pure), one may not easily deduce that they are used
specifically to condemn same-sex conduct.
It could further be argued that verse 11:78 is comparing
sexual misconduct with women with the dirtier option of
consensual sexual conduct with men; however, such a
conclusion is not warranted from the text, which suggests
that Lūṭ’s guests simply were not susceptible to the
advances of the people of Lūṭ. The verses paint a picture of
the aggressive mob demanding access to the guests. On the
offer of daughters, the people of Lūṭ state that they have no
ḥaqq (right) on Lūṭ’s daughters as opposed to irba (desire)
(as used in verse 24:31) for them.143 This indicates that the
demand to access Lūṭ’s guests was based on what they
considered a right to access the trespassers of their city. It
may be noted that one of the commentaries from the
Ahmadiyyah community, even while prohibiting same-sex
conduct on the basis of 7:81, actually points out that verses
11:78–79 are not dealing with sexual conduct but with the
abuse of guests.144
According to the Ahmadi Tafsīr, while some commentaries
suggest that the angels came to Lūṭ in the form of
handsome boys or that upon hearing about them the people
of Lūṭ rushed with sexual intent, the context does not
warrant that, as based on 15:71, they did not exhibit
pleasure but rather displeasure at Lūṭ’s offering hospitality
to strangers and that they had finally got the opportunity to
settle old scores with Lūṭ.145 The Tafsīr also indicates that
Lūṭ’s two daughters were already married in the town, that
he offered them as hostages, and that there was no sexual
intent involved in such an offer, but since the custom was to
only have males as hostages, the people rejected that
offer.146
The Tafsīr goes on to draw parallels between Lūṭ whose
daughters were married to the townspeople and the
Prophet, whose three daughters Ruqayya, Zaynab, and
Umm Kulthum were married to the disbelievers, to suggest
that God was comforting the Prophet by telling him that the
disbelievers would be surely punished just as the people of
Lūṭ, who at least did not persecute Lūṭ’s daughters, were
punished.147 It indicates that just as Lūṭ’s people prohibited
him from entertaining outsiders, the Meccans prohibited the
Prophet against strangers lest he should form alliances with
them.148 The Tafsīr also draws further parallels between the
blinding of the people of Lūṭ and the strong gale that drove
into the faces of the Meccans during the Battle of Badr
blinding them and causing their defeat and just as the
houses of Lūṭ’s people were turned upside down,
metaphorically the Meccan social order was overthrown as
the poor Muslims rose to eminence and the mighty
disbelievers slided down the social scale.149 Thus, given
such concordance between the story of Lūṭ and the life of
the Prophet, the obsessive focus on same-sex unions seems
unreasonably out of place.
The argument on the right to sexually subjugate
travelers may also be supported from the Arabic word nurīd,
which means want or seek but which in the context of
verse 11:79 may connote demand of an aggressive
nature. It is interesting to note that a variant of ḥāja,
ḍarūra or ṭalab, words that connote necessity or need, has
not been used in place of nurīd. This contextual
understanding of the word nurīd is supported by the
observation that a variant word rāwaduhu, based on the
same root, is used in verse 54:37, which according to al-Rāzī
denotes a demand for action. A portion of verse 54:37
reads, And they had demanded from him his guests, but we
obliterated their eyes, which indicates that the people of
Lūṭ demanded the guests for a particular action. Likewise,
another variant of nurīd, based on the same root, appears in
verse 12:30 as turāwid, which has been translated to
connote seduction. The wife of Azeez did try to seduce
Joseph and tore his shirt from behind in an attempt to force
herself upon him. Thus, when the word nurīd is viewed in
the context of verses 54:37 and 12:30, along with the next
verse 11:80, which indicates the exasperation of Lūṭ when
he says, If only I had against you some power or could take
refuge in a strong support, it seems to confirm the
argument that verse 11:79 is alluding to sexual aggression.
The words used in verse 15:70 A wa lam nanhaka ʿan-l-
ʿālamīn—Did we not forbid you from the world?—also
suggest that the subject of these verses is the abuse of
guests. The commentaries of Ibn Kathīr and Ṭabrasī,
presented below, indicate that Lūṭ was banned from hosting
and protecting guests so that they could use their custom to
abuse and rape any wayfarers.
He was banned from having guests (protecting anyone) at his house. This
leaves strangers (unprotected) out for the people of the town to rape them.
(Tafsīr Ṭabrasī for 15:70)150
[Lūṭ] he was afraid that if he hosted them, then his people will find out and if
he did not host them then his people will abuse them. (Tafsīr Ibn Kathīr for
29:33)151
2 .7 R E V IS IT IN G 7 :8 1 , 2 6 :1 6 5 – 1 6 6 , A N D 2 7 : 5 5
Disregarding the contextual and heretofore linguistic
analysis, verses 7:81, 26:165–166, or 27: 55 are often
quoted to prohibit same-sex unions, and this necessitates a
further linguistic analysis of these stand-alone verses. The
following language and grammar-based approach to
analyzing key words in these verses complements the
previous contextual and linguistic analysis that already
included the phrases A taʾtūna al-dhukrān (26:165) or
lataʾtūna al-rijāl (7:81 and 27:55). Verse 7:81 reads:
lataʾtūna al-rijāla shahwatan min dūni al-nisāʾ bal antum qawmun musrifūn
(7:81)
2 .8 V E R S E S 4 :1 5 – 1 6
Given issues in conflating the case of gays and lesbians with
the people of Lūṭ, some contemporary conservative scholars
like Aḥmad Shafaat invoke verses 4:15–16 to draw rulings
for same-sex conduct.156 These verses read as follows:
Those who commit unlawful sexual intercourse of your women—bring against
them four [witnesses] from among you. And if they testify, confine the guilty
women to houses until death takes them or Allah ordains for them [another]
way. (4:15)
And the two who commit it among you, dishonor them both. But if they repent
and correct themselves, leave them alone. (4:16)
2 .9 S U P P O R T IN G A N A L T E R N A T E R E A D IN G O F T H E
V E R S E S O N T H E P E O P L E O F L Ū Ṭ
A legal maxim states that legal opinions should take into
account changes of time and circumstances and as such,
Kamali asserts that some jurisprudential rulings of earlier
times may now be deemed unjust due to a different set of
circumstances.163 According to Kamali, the legal maxim that
ijtihād (independent reasoning) is irrelevant in the presence
of a naṣṣ (clear text) should be revised because of the
possibility of fresh interpretation in a different context.164
According to Ṭūfī, if the rules derived from the naṣṣ do not
uphold the good, then the texts have to be reinterpreted.165
Given that the framework of ʾubna and ma’bun is grossly
outdated due to our increased understanding of human
psychology and sexual orientation and given that the
framework of liwāṭ that focuses on a single sexual act in the
context of beardless boys and ma’buns, the application of
both to the lives of gays and lesbians would be both
unreasonable and unjust. This substantiates the critical
analysis of the verses on the people of Lūṭ in this chapter
and warrants a fresh reading as the classical jurists read
those verses based on qiyās that equated the conduct of
the people of Lūṭ with fornication.
A fresh reading of the verses is required also because
textual reasoning that does not take into account human
dignity and welfare has its limitations. Ibn al-Qayyim (d.
1350) asserted that the Sharīʿa is all justice, kindness,
common good, and wisdom, and that any rule that departs
from justice to injustice, from maṣlaḥa (public welfare) to
mafsada (harm), is not part of Sharīʿa even if it is derived
through literal interpretation.166 Likewise, according to
Turabi, if textual reasoning leads to ḥaraj aẓīm (extreme
hardship), then the maṣlaḥa has to be given precedence
and the purely hermeneutical interpretation is of no
consequence.167 Indeed, a majority of jurists have indicated
that a mechanical reading of the text, which is devoid of
wisdom and done only for conformity, should be avoided.168
Kecia Ali notes how past jurists bypassed even clear
Qur’anic verses based on interpretive devices.169 In the
context of the verses on the people of Lūṭ, such devices
may include takhṣīṣ (particularization) by bringing together
two texts conjointly to bear on the legal problem at hand.170
This suggests that instead of reading 7:81 on its own, it can
be coupled with 29:29 to understand the phrase lataʾtūna
al-rijāl (approaching men) in its proper context of
ambushing travelers. Another approach to verses 7:81,
26:65–66, and 27:55 that are often plucked out of context to
prohibit same-sex unions is to note that the phrase Allah
does not like the extravagant neither connotes a command
nor a prohibition.171 This is because the precise import of
implicit injunctions in the form of praise or condemnation
cannot be ascertained, that is, it is not clear whether they
convey a ruling or mere warning or recommendation.172
Thus, when verses 7:81, 26:65–66, and 27:55 describe the
people of Lūṭ as extravagant, ignorant, or transgressing
bounds, they are, strictly speaking, not prescribing a Sharīʿa
law and the admonition is of the conduct of the people of
Lūṭ, which is markedly different from the lives of believing
gays and lesbians.
Another way to read these verses is to note that while
jurists begin with the presumption to read the plain or literal
meaning of the words, qarīna (extrinsic circumstances) may
suggest reading the verses nonliterally.173 Jurists may
abandon the primary meaning in favor of another meaning
based on context and circumstance.174 This substantiates
reading the words rijāl and nisāʾ not plainly as men and
women but rather as nonreceptive and receptive entities
respectively based on a linguistic analysis of the root words.
Such a reading may be substantiated by noting that even
for the seemingly clear word banātī (my daughters) in verse
4:23, jurists have debated whether the term includes
illegitimate or adopted daughters.
A related relevant point is that according to the arbāb al-
khuṣūṣ (partisans of specific reference), the rule for a
general term does not apply to all members of the relevant
class.175 This suggests that the verses on the people of Lūṭ
are open to exceptions in that lataʾtūna al-rijāl would refer
to predominately straight men pursuing other males as
opposed to gay men, who are a minority like trans-men and
intersex people.
An alternate reading of the verses on the people of Lūṭ also
necessitates a renewed qiyās-based approach to deduce a
reasonable understanding from these verses as opposed to
simply superimposing them on the lives of Muslim gays and
lesbians.
2 .1 0 F O R M U L A T IN G A BE T T E R Q I Y Ā S — A N A L O G IC A L
D E D U C T IO N
Homosexuality was viewed by past Muslim scholars on its
own without any regard to the sexual orientation of the
males involved and in the absence of a legal contract like
nikāḥ (marriage) or concubinage, which was legally
regulated in a world with slavery. In contrast, conservative
Muslim leaders use the word homosexuality without a
proper definition, although it seems that they use the word
to refer to same-sex relationships whether sanctioned
through a legal contract or otherwise. However, just as
there are issues in conflating the people of Lūṭ with gays
and lesbians through qiyās, there are issues in equating
homosexuality with same-sex relationships bound by a
legal contract. Some sympathetic conservative Muslim
leaders may suggest that one may have a case-by-case look
at the issue of constitutional gays and lesbians and tailor
responses for them, perhaps suggesting celibacy for some,
prescribing them to indulge in social work and adopting a
slightly lenient approach toward others. However, Kamali
notes that with change of time and place, a case-by-case
approach may not be feasible.176 This substantiates the
importance of revisiting the qiyās (analogical deduction)
approach of the past jurists.
The limitations in equating liwāṭ with same-sex
relationships, and equating the people of Lūṭ with gays and
lesbians, necessitate a renewed qiyās on the verses on the
people of Lūṭ. Conservative Muslim leaders apparently feel
that the predominant aspect of the analogy that equates
the people of Lūṭ with gays and lesbians and liwāṭ with
same-sex relationships is the act of homosexual anal
intercourse. However, this leads to the problem in that the
analogy does not fit as a specific act does not define the
totality of same-sex relationships, which may not include
the act of homosexual anal intercourse and which go
beyond the sexual act to encompass the goods that are
found in married life, such as pleasure, communication,
emotional growth, personal stability, and long-term
fulfillment,177 as well as compassion and affection between
the partners.
Qiyās requires that enough parallels have to exist between
two situations or cases to extract a meaningful conclusion.
More specifically, in order to extract an appropriate analogy,
some critical shared elements have to be present and some
critical negating elements have to be absent between two
situations or cases. For instance, a drink cannot be
considered prohibited if, while sharing its color with that of
wine, it does not share the critical intoxicating property of
wine. The qiyās is considered to be strong if the critical
element or cause of prohibition is referenced from either the
Qur’an or the Hadith as opposed to superficial observation.
Qiyās khafī (hidden analogy), which is arrived through
deeper reflection and analysis, is stronger than the usual
qiyās jalī (obvious analogy) that is based on superficial
similitudes, and is also more effective in repelling hardships,
which is important as even a technically sound qiyās that
goes against the overriding maqāṣid (objectives) of the
Sharīʿa may be discarded.178
Just as verse 5:91 provides the ʿilla (effective cause) for the
prohibition of intoxicants, which is that intoxicants keep one
away from the remembrance of God, likewise verses 7:80,
11:77–79, 15:67–72, and 29:28–29 that form the context for
verses 7:81, 26:165–166, or 27:55 that are usually quoted
to prohibit homosexuality can be considered to determine
the ʿilla that might enable one to make more appropriate
conclusions on the verses on the people of Lūṭ. In doing so,
one can avoid making superficial conclusions such as
prohibiting a drink with the same color as wine or
prohibiting same-sex relationships within the folds of a legal
contract, both of which are not necessarily warranted by a
reading of the relevant Qur’anic verses. Since the qiyās for
which the ʿilla is extracted from the naṣṣ (text) is usually
preferred to the qiyās based on superficial similitude, the
often quoted verses 7:81, 26:165–166, or 27:55 on the
people of Lūṭ will have to be complemented with verses
7:80 and 29:28–29 to obtain a more appropriate conclusion.
Verse 29:29 helps break the superficial analogy that is
made by conservative Muslim leaders between the people
of Lūṭ and gays and lesbians on the basis of the ʿilla of
homosexual anal intercourse, which conservative Muslim
leaders consider to be the defining feature of the people of
Lūṭ. Relationships based on commitment, reciprocity,
equality, compassion, and as mentioned in the Qur’anic
verse 30:21—tranquility, mercy, and mawadda (affection)—
cannot be equated with conduct that included indulging in
indecency, highway robbery, and actions perpetrated in
public assemblies. Alternatively, as noted earlier, how
reasonable is it to assume that committing highway
robbery, evil deeds in open assemblies, and being a
responsible citizen in a committed same-sex relationship go
hand in hand?
Likewise, as noted earlier, verses 7:80 and 29:28 also help
break the superficial analogy between the people of Lūṭ and
gays and lesbians. Generally, past exegetes, such as Ibn
Kathīr (d. 1373), Ṭabarī (d. 923), and Qurṭubī (d. 1273),
understood these verses as indicating that homosexuality
started with the people of Lūṭ. The conclusion that same-sex
conduct, whether forced or not, started from the people of
Lūṭ does not stand the test of historical evidence. This
further substantiates the argument that a renewed reading
of the verses on the people of Lūṭ is warranted.
The exegete al-Rāzī (d. 1209), while conceding that the
people of Lūṭ may have invented the abomination, also
claims that the homosexual conduct in 7:80 may allude to
the collective action of the people of Lūṭ rather than
individual conduct, which only substantiates the argument
that conduct of the people of Lūṭ was not one of gays and
lesbians forging same-sex relationships through a legal
contract but one perpetrated by the nation as a whole, all of
whom could not have been constitutionally gays and
lesbians unless one were to view the sexual orientation
toward the same sex as a contagion.
Verses 7:80 and 29:28–29 seem to indicate that the
collective action of the people of Lūṭ of pursuing other
males, robbing them, and committing evil deeds in public
assemblies indicate that the ʿilla (effective cause) behind
the condemnation of the acts of the people of Lūṭ is not
conduct of a minority that is based on compassion and
affection, but one based on exploitation by the majority. This
ʿilla behind the prohibition of the conduct of the people of
Lūṭ based on texts would help formulate a stronger qiyās
and hence more appropriate conclusions than one based on
the superficial observation that the feature of homosexual
anal sex equates the conduct of the people of Lūṭ with
same-sex relationships.
Like verses 7:80 and 29:28–29, verses 11:77–79 and
15:67–72 also substantiate the argument that the ʿilla
behind the condemnation of the acts of the people of Lūṭ is
not conduct of a minority based on compassion and
affection. Conservative Muslims usually quote verses 11:77–
79 and 15:67–72, which indicate Lūṭ’s offering his daughters
to deduce the point that heterosexual marriages are
preferred to same-sex conduct. However, in traditional
exegetical works there has been much difference of opinion
on whether Lūṭ really did offer his daughters, which casts
doubt on the understanding that the verses are giving
precedence to heterosexual marriages.
These verses indicate that the people of Lūṭ had forbidden
him from providing hospitality and were demanding that the
male visitors be yielded to them. The verses also indicate
that Lūṭ was concerned about protecting his guests from the
crowd that rebuffed the offer of his daughters by stating
that they had no ḥaqq—right or claim on them and also
expressed the nurīd—demand or want for the guests.
Indeed, the language is not one of proposition and desire
but one of coercion and demand, which indicates that the
verses are not alluding to committed same-sex relationships
but a conduct that is defined by coercion and exploitation.
The above textual analysis indicates that extracting the
injunction of the prohibition of same-sex relationships in a
legal contract does not follow from a qiyās based on the
supposed common element of homosexual anal sex
between the people of Lūṭ and gay men. The analogy does
not hold in the case of lesbians and many gay couples
whose sexual activity does not include the act of
homosexual anal intercourse. Moreover, even if the act of
homosexual anal intercourse formed part of the sexual
conduct of some gay couples, the prohibition of the act is
disputable as Shī‘ī scholars contest the prohibition of
heterosexual anal intercourse. The qiyās that equates the
people of Lūṭ and gay people also falls short since, based on
textual evidence, the collective action of the people of Lūṭ,
as noted above, is textually defined by coercion and
exploitation outside a legal contract. In short, equating gay
people with the people of Lūṭ raises a lot of questions, which
indicates that the analogy, and hence the prohibition of
same-sex relationships, cannot be superficially based on a
sexual act.
2 .1 1 C R IT IC IS M O F T H E A L T E R N A T E R E A D IN G
The approach of adopting an alternate reading of the verses
to build a case for same-sex unions can be criticized as one
breaking from the traditional scholarship of Islam. However,
such criticisms can be contested based on the statements
and reasoning of the past scholars, which depict how
sociocultural norms and medical knowledge of the societies
they lived in informed their viewpoints on the nature of
same-sex relationships. The picture that emerges from
medieval Islamic writings is one of widely practiced same-
sex penetration of vulnerable populations that comprised
mainly of male slaves and male youth. There may have
been consensual sex between men but that was not the
norm and as such would have been easily overlooked. If
monogamous same-sex relationships existed, then they
would have constituted a small minority and the scholars’
responsibility was to protect the society and especially the
vulnerable men from exploitation. Furthermore, even the
consenting penetrated man was assumed to be afflicted by
ʾubna and as such viewed as exploited by the many willing
penetrating men of his locality.
Traditional scholars offered protection and dispensation to
the vulnerable populations that comprised of male slaves,
youth, and anyone who was coerced from any guilt or
punishment. They, however, punished the person afflicted
with ʾubna and even in such a case, some Shafi‘i scholars
argued against capital punishment for the maʾbūn (male
afflicted with ʾubna). Ibn al-Qayyim (d. 1350) seemed to
apologetically explain that it is better for the receptive
partner to die as punishment because he may die a martyr
as opposed to remaining alive after the irreparable damage
inflicted on him through penetration.
Viewed through this lens, homosexual acts in the society of
the past scholars were closer to the practice of the people of
Lūṭ than to the lives of loving same-sex couples in
contemporary times, especially in the Western world. Thus,
just as past scholars were informed by the reading of the
texts and the actual practices of their populations,
contemporary scholars have to inform their opinions by the
same texts but by the very different practice of
homosexuality in contemporary society rather than parrot
opinions that are inapplicable to contemporary societies.
The Qur’anic verses are but one facet of consideration in
the work of jurists, who also rely on the Prophetic Hadith
literature as well as the narratives from the Companions and
their followers, apart from the qiyās-based work of
prominent founders of schools of Muslim jurisprudence.
Therefore, chapter 3 would be aimed at analyzing the
Hadith literature as well as the narratives from the
Companions of the Prophet from both Sunnī and Shī‘ī
sources, whereas chapter 5 will present a critical reflection
on the reasoning employed by both past and contemporary
scholars on the prohibition of same-sex sexual conduct.
N O T E S
Shakir’s translation will be used for all of the Qur’anic verses in this chapter.
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39. Alli, Intimacy and the Sacred in Muslim Communities, 12.
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Societies, (Jefferson, NC: McFarland, 2011), 50.
66. Ibid, 72.
67. Margherita Mussi, Earliest Italy: An Overview of the Italian Paleolithic and
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68. Gordon Wenham, The Old Testament attitude to Homosexuality,
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70. Ibid, 93.
71. Fakhr al-Dīn Abu Abdullah Muhammad ibn Umar ibn al-Ḥusayn at-Taymī al-
Bakrī at-Ṭabaristānī Al-Rāzī, Tafsīr al-Rāzī. Commentary on verses 2:223, 7:80–
81, 24:2, 24:31, in [ اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe Golden
Encyclopedia of the Prophetic Golden Hadeeth and its Sciences], 2nd edition,
(London: Turath Publishing), CD-ROM.
72. These verses condemn people of Lūṭ for approaching males as
extravagant (7:81), exceeding limits (26:165–166) or ignorant (27:55). By
ignoring the allied verses, traditional scholars uphold the prohibition of liwat and
hence homosexual conduct.
73. And kill them wherever you find them, and drive them out from whence
they drove you out. . . (2:191) O you who believe! do not take the Jews and the
Christians for friends. . . (5:51)
74. The story of the people of Lūṭ may also be compared with that of the
people of Saleh and the people of Thamood in the Qur’an. In all such cases, the
emphasis is on the common theme of the rejection of God and His Messengers
rather than a specific human conduct.
75. Syed Abul A’ala Maududi, Towards Understanding the Qur’an, trans. Zafar
Ishaq Ansari, (Leicester: The Islamic Foundation, 2006), accessed January 26,
2016, http://www.tafheem.net/main800.html.
76. Ibn Jumuʿa, ʿAbd ʿAli, Tafsīr Nūr al-Thaqalayn (Qom: Intisharat Ismailiyan,
1415 AH/1994), 2: 375–407.
77. Ibid.
78. Ibid.
79. Al-Ṭabarī, Tafsīr Ṭabarī. Commentary on verse 11:78, in اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ
[ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe Golden Encyclopedia of the Prophetic Golden
Hadeeth and its Sciences], 2nd edition, (London: Turath Publishing), CD-ROM.
Translation by Jamal Bakeer and the authors.
80. Ibn Jumuʿa, ʿAbd ʿAli. Tafsīr Nūr al-Thaqalayn (Qom: Intisharat Ismailiyan,
1415 AH/1994), 2: 375–407.
81. Ibid.
82. El-Rouayheb, Before Homosexuality, 126.
83. Jalāl al-Dīn Al-Suyūṭī, Al-Durr al-Manthūr fī al-Tafsīr bi-l-Ma ʾthūr, in اﻟﻤﻮﺳﻮﻋﺔ
[ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe Golden Encyclopedia of the Prophetic
Golden Hadeeth and its Sciences], 2nd edition, (London: Turath Publishing), CD-
ROM.
84. Scott Siraj al-Haqq Kugle, Sexuality, Diversity and Ethics in the Agenda of
Progressive Muslims, in Progressive Muslims, ed. Omid Safi, (Oxford: Oneworld
Publications, 2003), 214.
85. Ibid, 210.
86. Jan Knappert, Islamic Legends: Histories of the Heroes, Saints, and
Prophets of Islam, (Leiden: E.J. Brill, 1985), 84. It is not clear whether the quote
is from Thaʿlabī or Al-Kisāʾī.
87. Imani et al., An Enlightening Commentary, Parts 7 & 8, 395, 487.
88. Mirza Bashīruddin Maḥmūd Aḥmad, The Holy Qur’an with English
Translation and Commentary, Volume 3, published under the auspices of Mirza
Tahir Aḥmad, (U.K.: Islam International Publications Limited, 1988), accessed
January 25, 2016, http://www.alislam.org/quran/tafseer/guide.htm?region=E1,
1103–1104.
89. Al-Ṭabarī, The History of al-Ṭabarī, 112–18.
90. We are grateful to Peter Gray for this point.
91. Edward William Lane, Arabic-English Lexicon, (Beirut: Librairie Du Liban,
1968), 14.
92. Ibn Kathīr, The History of Ibn Kathir—Bidaya and Nihaya, Volume 9, 185.
93. Al-Aṣbahānī, Muḥaḍarāt al-Udabāʾ wa Muḥāwarāt al-Shuʿarāʾ wa-l-
Bulaghāʾ, Volume 1, 199.
94. Michael Muhammad Knight, Queering the Qur’an, Vice, November 13,
2012, accessed January 26, 2016, http://www.vice.com/en_ca/read/queering-the-
quran.
95. Al-Dhahabī, Tārīkh al-Islām, Volume 8, 294; Siyar Aʻlām al-Nubalāʾ, Volume
5, 373.
96. Ibn Kathīr, The History of Ibn Kathir—Bidaya and Nihaya, Volume 9, 185.
97. Al-Damīrī, Hayāt al-Ḥaywān, Volume 2, 247.
98. El-Rouayheb, Before Homosexuality, 45.
99. Al-ʿAynī, Badr al-Dīn. ʿUmda al-Qārī Sharḥ Ṣaḥīḥ al-Bukhārī, Volume 8, 403.
100. Everett K. Rowson, The categorization of gender and sexual irregularity in
medieval Arabic vice lists, in Body Guards: The Cultural Politics of Gender
Ambiguity, eds. Julia Epstein and Kristina Straub, (New York: Routledge, 1991),
57.
101. Ibid, 67.
102. Translation by the authors.
103. Translation by the authors.
104. Al-Rāzī, Tafsīr al-Rāzī for 7:81. Translation by the authors.
105. Imani et al., An Enlightening Commentary, Parts 7 & 8, 490.
106. Al-Rāzī, Tafsīr al-Rāzī for 7:81. Translation by the authors.
107. El-Rouayheb, Before Homosexuality, 14–15.
108. Al-Ṭabrasī, Majma‘ al-Bayān fī Tafsīr al-Qur’an. Commentary on verses
7:80–82, in [ اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe Golden Encyclopedia
of the Prophetic Golden Hadeeth and its Sciences], 2nd edition, (London: Turath
Publishing), CD-ROM.
109. El-Rouayheb, Before Homosexuality, 126.
110. Ibid, 17.
111. Al-Ṭabrasī, Majma‘ al-Bayān fī Tafsīr al-Qur’an. Commentary on verse
29:28–30.
112. Abu Ali Fadhl ibn Ḥasan Al-Ṭabrasī, Tafsīr Ṭabrasī. Commentary on verse
15:70, in [ اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe Golden Encyclopedia of
the Prophetic Golden Hadeeth and its Sciences], 2nd edition, (London: Turath
Publishing), CD-ROM.
113. Email correspondence with Miqdaad Versi.
114. He wants to repent from homosexuality and needs help, 27176, Islam
QA, accessed January 25, 2016, http://islamqa.info/en/27176.
115. Rowson, Homosexuality in Islamic Law.
116. From Hussein’s monograph on verses 4:15–16.
117. He Wants to Repent, Islam QA.
118. Moiz Amjad, What is the Punishment for Adultery? Renaissance Monthly
Journal, Last modified May 1, 2002,
http://www.javedahmadghamidi.com/renaissance/view/what-is-the-punishment-
for-adultery.
119. Adang, Ibn Ḥazm on Homosexuality, 24.
120. Abdul Majid Daryabadi, Tafsīr-Ul-Qur’an Translation and Commentary of
the Holy Qur’an, Volume I, (Pakistan: Darul-Isha’at Urdu Bazar, 1991), 310.
121. Ibn Ḥazm, Ṭawq al-Ḥamāma fī al-ulfa wa-l-Allāf (Damascus: Maktaba
ʿArafa. 1349 A.H./1929-30 C.E.), 139.
122. Ze’ev Maghen, Virtues of the Flesh—Passion and Purity in Early Islamic
Jurisprudence, (Leiden: Brill, 2005), 261.
123. Ibid, 267.
124. Colin Imber, Why you should poison your husband: A note on liability in
Hanafi law in the Ottoman period, Islamic Law and Society 1, no. 2 (1994): 207.
125. Barbara Zollner, Mithliyyun or Lutiyun? Neo-Orthodoxy and the debate on
the unlawfulness of same-sex relations in Islam, in Islam and Homosexuality,
ed. Samar Habib, (Santa Barbara: Praeger, 2010), 206–207.
126. Al-Zamakhshari, Commentary of 7:80, (Amman: Royal Aal al-Bayt Institute
for Islamic Thought), accessed May 10, 2016, http://altafsir.com/.
127. Yastabshiruna can also be understood as seeking sex because the term
bashar means skin.
128. Imani et al., An Enlightening Commentary, Parts 7 and 8, 395–96, 487–88.
129. Ibn al-Qayyim, Al-Jawāb al-Kāfī li Man Saʾala ʿan al-Dawāʾ al-Shāfī , 171.
Translation by the authors.
130. Schmitt and Sofer, Sexuality and Eroticism, 14.
131. Ibid, 14.
132. El-Rouayheb, Before Homosexuality, 17.
133. Ibid, 14.
134. Saleem Kidwai and Ruth Vanita, Same Sex love in India, (New York:
Palgrave McMillan, 2001), 113, 131–35.
135. Huseyn Hilmi Isik, Uqubat—Penal Code, in Seadet i Ebediyye - Endless
Bliss, 1st edition, Hakikat Kitabevi Publications No: 6, accessed January 26,
2016, http://imanveislam.com/kitaplar/english/read/endless6/013.htm.
136. Imber, Why You Should Poison Your Husband, 214.
137. Pellat uses the word maʾbūn for the castrated horse. It is not clear if Al-
Jāḥiẓ used this word, and if so, whether he used it to mean passive recipient of
anal intercourse or a castrated entity.
138. Charles Pellat, Liwāṭ The Encyclopedia of Islam, Volume 5, eds. C. E.
Bosworth, E. Van Donzel, B. Lewis and Ch. Pellat, (Leiden: E.J. Brill, 1983), 776.
139. Aleardo Zanghellini, Neither homophobic nor (hetero) sexually pure:
contextualizing Islam’s objections to same-sex sexuality, in Islam and
Homosexuality, ed. Samar Habib, (Santa Barbara: Praeger, 2009), 206–207.
140. Translation by the authors.
141. Translation by the authors.
142. Imani et al., An Enlightening Commentary, Parts 7 and 8, 323.
143. We are grateful to Jamal Bakeer for this point.
144. Ahmad, The Holy Qur’an, Volume 3, 1105.
145. Ibid, 1104, 1301–1302.
146. Ibid, 1104–1105.
147. Ibid, 1303.
148. Ibid.
149. Ibid, 1304.
150. Al-Ṭabrasī, Majma‘ al-Bayān fī Tafsīr al-Qur’an for 15:70. Translation by the
authors.
151. Ibn Kathīr, Tafsīr Ibn Kathīr for 29:33. Translation by the authors.
152. Maududi, Towards Understanding the Qur’an.
153. We are grateful to an anonymous critic for this point.
154. Email correspondence with Daayiee Abdullah.
155. Tariq Ramadan, Radical Reform: Islamic Ethics and Liberation, (New York:
Oxford University Press, 2008), 169.
156. Aḥmad Shafaat, ‘Death Penalty For Homosexuality, Incest, And Bestiality.’
Punishment for adultery in Islam: A detailed examination, March 6, 2005,
accessed January 27, 2016,
http://www.islamicperspectives.com/Stoning5.htm#Chapter5.
157. Rowson, Homosexuality in Islamic law.
158. Maududi, Towards Understanding the Qur’an.
159. El-Rouayheb, Before homosexuality, 122.
160. Ibn Abbas, Commentary of 4:15–16, (Amman: Royal Aal al-Bayt Institute
for Islamic Thought), accessed May 10, 2016, http://altafsir.com/.
161. Amjad, What is the Punishment for Adultery?
162. Allama Muhammad Hussein Ṭabāṭabāʾī, Tafsīr al-Mīzān, ed. Husayn al-
Aʿlamī, (Beirut: Manshurat Muʾassasat al-Aʿlamī li’l-Maṭbūʿāt, 1394/1974), 2:211–
225, 4:240–243.
163. Mohammad Hashim Kamali, The Sharia, Law as the Way of God, in
Voices of Islam (5 vols.), Vol I: Voices of Tradition, ed. Vincent J. Cornell,
(Wesport, CT: Praeger Publishers, 2007), 169, 175.
164. Ibid, 158.
165. Anver Emon, Islamic Natural Law Theories, (Oxford: Oxford University
Press, 2010), 162.
166. M. Hanif Lakdawala, Muslim Intellectual Inertia and Ijtehad, Islamic Voice
13 no. 2 (February 1999): 146, accessed January 28, 2016,
http://www.irfi.org/articles3/articles_4601_4700/muslim%20intellectual%20inerti
a%20and%20ijtehadhtml.htm.
167. Wael Hallaq, A History of Islamic Legal Theories: An Introduction to Sunni
Usul Al Fiqh, (Cambridge: Cambridge University Press, 1999), 229.
168. Kamali, The Sharia, Law as the Way of God, 168.
169. Ali, Sexual Ethics and Islam, xxi.
170. Hallaq, A History of Islamic Legal Theories, 74.
171. Ibid, 191.
172. Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, 3rd
edition, (Cambridge: The Islamic Texts Society, 2005), 198.
173. Mohammad Fadel, Is Historicism a Viable Strategy for Islamic Law
Reform? The Case of ‘Never Shall a Folk Prosper Who Have Appointed a Woman
to Rule Them, Islamic Law & Society, 2011, accessed January 26, 2016,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1712968.
174. Kamali, Principles of Islamic Jurisprudence, 118.
175. Fadel, Is Historicism a Viable Strategy.
176. Kamali, Principles of Islamic Jurisprudence, 298.
177. John Corvino, Homosexuality and the PIB Argument, Ethics 115 (April
2005), accessed January 26, 2016, http://johncorvino.com/academic/Corvino-
PIB.pdf, 512.
178. Kamali, Principles of Islamic Jurisprudence, 333, 517.
C hapt e r 3
3 .1 .1 H ad it h I 6
3 . 1 . 2 H ad it h I I
The second Prophetic narrative, traced back to Abu Hurayra
(d. 681), is reproduced below.
Stone the upper and the lower, stone them both. (Ibn Māja)
3 .1 .3 H ad it h I I I 1 1
3 .1 .4 H ad it h I V
The fourth Prophetic narrative equates sexual conduct
between males with adultery and it seems that it is perhaps
from this narrative some jurists equated same-sex sexual
conduct with zinā and therefore prescribed the same
penalty for same-sex sexual conduct as that prescribed for
zinā.
If a man comes to a man (for sex) then they committed adultery.
3 .1 .5 H ad it h V
The fifth Prophetic narrative, traced back to both Abu
Hurayra (d. 681) and Ibn ʿAbbās (d. 687), is eschatological
in its essence and refers to a speech he gave in Medina.
. . . and whoever penetrates a woman or a child or a man in their anuses then
he comes on the day of judgment smelling worse than the dead animal until
he goes to hell. (Musnad al-Ḥārith)
3 .1 .7 H ad it h V I I 1 7
3 .1 .8 H ad it h V I I I 1 9
The eighth Prophetic narrative, similar to the third narrative
and likewise traced back to Jābir ibn Abdullah (d. 697) but
eschatological in essence, is reproduced below.
The most I fear for my people after me is the work of the people of Lūṭ, so my
nation will have to wait for anguish if the women are (sexually) happy with
women and the men with men.
3 . 1 . 9 H ad it h I X 2 1
The ninth and final Prophetic narrative in the category of
condemnatory Hadith, traced back to Jābir ibn Abdullah, is
reproduced below.
If adultery became widespread, then taking female slaves will become
widespread and if Lūṭism (having sex with males in the anus) increased, then
God will raise his hand from creation and will not care in which valley they
meet their end. (also in Muʿjam Kabīr of Ṭabarānī)
3 .2 C O N D E M N A T O R Y S U N N Ī T R A D IT IO N S — G E N D E R
E X P R E S S IO N
Apart from these texts, there exist three strands of texts,
classified as follows, that seem to condemn the
mukhannath-feminine male/masculine female, which are
sometimes used by conservative scholars to condemn gays
and lesbians. However, it is important to note that the
mukhannathūn of Medina cannot be classified as
homosexual 30 as the ʾubna disease was rarely associated
with the mukhannathūn.31 While jurists like Ḥaṣkafī (d.
1677) defined the mukhannath as the one penetrated like a
woman,32 many jurists have been clear that effeminacy is
not evidence of liwāṭ.
The texts in this section depict the Prophet as banishing
the mukhannathūn. However, Hadith experts have also
deemed all three strands of texts as weak based on their
analysis of the transmission chains. Notwithstanding the
fact that one of these texts appears in the canon of Bukhārī,
authorities like Qatāda (d. 735), Ibn Ḥajar al-ʿAsqalānī (d.
1448), Mālik, Yaḥyā ibn Maʿīn, Abu Zurʿa, and Abu Ḥātim
among others had cast doubts on the authenticity of these
Prophetic texts by branding the narrators in the
transmission chain as liars or fabricators, by deeming the
narrators as questionable or unknown or by expressing
concern in the transmission chain not connecting back to
the Prophet.33 Even if one disregards the weakness in the
transmission chain, based on matn (content) analysis, it
cannot be reasonably concluded that the mukhannathūn in
the texts were exiled for their innate characteristics.
3 .2 .1 H ad it h I
The strongest Prophetic narrative that is traced back to
Umm Salama (d. 680) and ʿ Ā’isha (d. 678) actually has the
Prophet prohibiting a mukhannath from entering their
quarters. This narrative is reproduced below in its two
variant forms.
The mukhannath said to the brother of Umm Salama: If God opened Ṭa’if to
you tomorrow, then I will lead you to daughter of Ghīlān, for she comes
forward with four and backwards with eight. The Prophet said: This man
does not enter on you after this.
ʿĀ’isha said to a mukhannath in Medina: Would you tell us about a woman to
get her engaged to Abdullah ibn Abu Bakr? Upon hearing the mukhannath’s
description, the Prophet responded: Get out of Medina to Ḥamrā’ al-Asad and
in it will be your house.
3 .2 .2 H ad it h I I
The second strand of Prophetic narratives, traced back to
Ibn ʿAbbās, Abu Hurayra, and Ibn ʿUmar, is reproduced
below in its variant forms.
The Prophet distanced the men that try to look like women and the women
who try to look like men and He said: Get them out of your houses and
ʿUmar exiled so and so. (Ibn ʿAbbās)39
The Prophet said take the mukhannathūn out of your houses and the Prophet
made one leave and ʿUmar did too. (Ibn ʿAbbās)40
The Prophet cursed or exiled the men that try to resemble women and the
women that try to resemble men and the ones that ride the wilderness alone.
(Abu Hurayra)41
The Prophet cursed or exiled the men that try to resemble women and the
women that try to resemble men. (Ibn ʿUmar)42
3 . 2 . 3 H ad it h I I I
The third and final strand of Prophetic narratives traced
back to Abu Hurayra and Abu Saʿīd al-Khudrī (d. 682–4,
693), is respectively reproduced below.
A mukhannath was brought to the Prophet with Henna on his hands and feet.
It was said to the Prophet: He is imitating women. So, the Prophet ordered
that he be exiled to al-Naqīʿ. They said: O Prophet of Allah: Should we not kill
him? He replied: I was forbidden from killing the ones that pray. (Abu
Hurayra)48
A mukhannath was brought to the Prophet with Henna on his hands and feet,
so the friends of the Prophet started to hit him with their shoes. The Prophet
said: Be careful of this one and his friends for your women. The friends said
should we not kill him. The Prophet replied: I was forbidden from killing the
ones that pray. (Abu Saʿīd al-Khudrī)49
3 .3 C O N D E M N A T O R Y S U N N Ī T R A D IT IO N S : T H E
C O M P A N IO N S
Apart from the texts attributed to the Prophet, there exist
other texts that mention the conduct of the Companions and
the opinions of their followers—the tābiʿ ūn. In what follows,
narratives from senior Companions Abu Bakr (d. 634), ʿ Umar
(d. 644), and ‘Ali (d. 661) apart from other notable
authorities like Ibn ʿ Abbās (d. 687) and Ibn Zubayr (d. 692)
are delineated.
3 . 3 . 2 ʿ U m ar— T he S e c on d C aliph
A relatively authentic narrative, that casts doubt upon the
Abu Bakr narrative as it indicates that the first indicant of
any homosexual behavior was noted at the time of the
second Caliph, has been traced back to ʿ Ā’isha via Shihāb
Zuhrī (d. 741/2), and reported in the Muṣannaf ʿ Abd al-
Razzāq as follows.
The first to be suspected of the ugly deed (the work of the people of Lūṭ) was
at the time of ʿUmar, who ordered some of the young men from Quraysh not
to sit with him.60
3 .3 .3 ‘ A li— T he F ou rt h C aliph
While there do not appear to be narratives indicating that
the third Caliph ʿUthmān (d. 656) dealt with the issue of
homosexual conduct, three variants of a narrative traced
back to Al-Qāsim ibn al-Walīd exist in the work of Bayhaqī.
One of these narratives is reproduced below.
‘Ali stoned a Lūṭī
So far as the authenticity in terms of the transmission
chain of this narrative is concerned, while both Ibn Maʿīn
and Al-ʿIjlī deem Qāsim ibn al-Walīd as trustworthy, another
expert Ibn Saʿīd, in contrast, indicated that he did make
mistakes.61 This weakness in the transmission chain may
then indicate either that similar narratives on ‘Ali traced
back to Jaʿfar ibn Muhammad and Abu Layla, as noted in
Section 3.3.1, are also weak as they too are found in the
works of Bayhaqī, or that three weak narratives put together
could provide some proof on ‘Ali stoning someone for
homosexual conduct, specifically anal penetration.
However, according to contemporary scholar Sheikh
Mohamed el-Moctar el-Shinqiti, the scholars of Hadith
mention that the traditions indicating that ‘Ali adopted the
opinion of stoning the sodomite are even weaker than the
Hadith mentioned in 3.1.1 and 3.1.2, which were already
deemed to be extremely weak.62
Narratives which use the word Lūṭī may be critiqued on the
basis of matn (content)-based analysis as it seems the word
Lūṭī or liwāṭ did not appear to have a concrete meaning
during the time of the Companions and as such was a
product of later juristic work, which would then cast further
doubt on the authenticity of the narrative based on the
matn (content) of the text. While Section 3.4 will build the
case for the fact that the words Lūṭī and liwāṭ did not have
concrete meanings during the times of the Companions, it
may be worth noting that some Shī’ī jurisprudential scholars
may use these narratives to prescribe capital punishment
for homosexual conduct, while tolerating anal intercourse
with wives and perhaps male slaves.63 In contemporary
times, Ayatollahs Ṭabāṭabāʾī, Sistānī and Lankarānī have all
deemed anal intercourse with one’s wife permissible, but
undesirable, given the consent of the wife. It may also be
argued that if such narratives were indeed authentic, then
the later jurists would not have disagreed on addressing
homosexual conduct and in fact would have relied
specifically on these narratives for guidance.
3 .3 .4 I bn ʿ A bbā s — P at e rn al c ou s in of t he P rophe t
Apart from the narratives supposedly describing the conduct
of the Caliphs, there also exist texts that indicate that some
prominent Companions enforced capital punishment for
homosexual conduct. One such narrative attributed to Ibn
ʿ Abbās and traced back through ʿ Ikrima is reproduced
below.
If a virgin male is found on ‘al-Lūṭīyya’ then he is to be stoned.64
3 .4 D E F I N I T I O N - BA S E D S U N N Ī T E X T S — T H E T Ā BI ʿ Ū N
While the Hadith narratives in Sections 3.1 and 3.2 could be
simply critiqued on the basis of the severe weaknesses in
their transmission chains, the narratives in Section 3.3,
despite being absent in relatively more authentic and
notable works, did require a content-based analysis,
specifically on the usage of the terms like Lūṭī and liwāṭ, to
investigate their authenticity. It was contested that there did
not exist concrete meanings for these words during the time
of the Companions. The usage of these terms motivates the
need for this section, which would focus on showing that
there did not exist a concrete and unanimous understanding
of the terms like Lūṭī and liwāṭ during the time of the
Companions, let alone during the time of the Prophet. Texts,
mostly attributed to the tābiʿūn (followers), exploring the
definition of such terms are analyzed as follows.
The argument that the words Lūṭī and liwāṭ and other
terms coined for homosexual conduct are later juristic
creations can be supported by noting that there was no
consensus amongst the tābiʿūn on these terms. Apart from
the nine strands of Prophetic texts on liwāṭ and three
strands of texts on the mukhannathūn, and aside from the
texts associated with the Companions, there exist four
strands of texts on the usage of the words coined from Lūṭ,
several of which are attributed to the tābiʿūn.
Like the second text, this one indicates that the meaning of
the word Lūṭī did not have a concrete meaning prior to the
time it was given a specific meaning by the jurists. It is
interesting to note that there was a distinction between the
terms Lūṭī and ʻamal qawm Lūṭ where the latter connoted
contemptible conduct. However, ʻamal qawm Lūṭ does not
necessarily carry the specific meaning of anal intercourse
between males but carries within it a whole array of
compound crimes ranging from disbelief in God, highway
robbery, to evil deeds in open assemblies. This point is
substantiated not only from the Qur’anic text 29:29 but also
from the analysis on the Abu Bakr narrative. Thus, based on
the third text as well, it may be concluded that the absence
of any specific meaning for the term Lūṭī further weakens
some of the narratives attributed to the Companions in
Section 3.3.
Moreover, in light of the Abu Bakr narrative, it would
perhaps be reasonable to state that the Companions
understood the story of the people of Lūṭ as that of coercion
and exploitation, whereas later jurists understood it as
exclusively referring to homosexual anal intercourse. In fact,
based on the opinions of jurists and scholars, as noted in
chapter 2, even later jurists understood liwāṭ as sexual
exploitation and that only in the last 100–200 years has the
word taken the meaning of homosexuality as we
understand it today.
3 . 4 . 2 P os it iv e R e f e re n c e — L ū ṭ ī
While the texts in 3.4.1 indicated that the word Lūṭī with
potential negative connotations did not have a concrete
meaning prior to jurisprudential work, the next narrative,
traced back to the Prophet, but not expressly attributed to
him, through Sinān ibn Salama (d. 714), indicates that the
word Lūṭī in fact carried a positive connotation, perhaps
referring to the few steadfast followers of the Prophet Lūṭ.
Based on verses 26:168–172, the Shī’ī Tafsīr compiled by
Ayatollah Sayyid Kamal Faghih Imani and others indicates
that a group of believers supported Lūṭ by their intense
protest, although others dismissed them.72 Likewise, an
Ahmadi Tafsīr indicates that a party of believers was saved
along with Lūṭ and not just his daughters.73 Given this
context, the Ibn Salama text reads:
A man called another O Lūṭī ; this was taken to Sinān ibn Salama who
responded, What a good man you are, if you were of the people/followers of
Lūṭ. 74
3 . 4 . 3 R e f e re n c e t o A n al I n t e rc ou rs e be t w e e n M ale s —
al- L ū ṭ ī yya
The third strand of the tābiʿūn texts provides a sexual
connotation to the terms al-Lūṭīyya (feminine version of
Lūṭī) and liwāṭ by referring to anal intercourse with wives as
the minor liwāṭ or by referring to enema as the edge of the
works of the people of Lūṭ. Notwithstanding authenticity
issues, the third strand of the tābiʿūn texts contrasts with
the first strand of the tābiʿūn texts that specifically rule out
any penalty for slander through the word Lūṭī. There are two
texts, reproduced below, one traced back to Qatāda and
another to Mujāhid, the first of which carries the possibility
that the term al-Lūṭīyya could specifically have been
understood as anal intercourse between males.
Abdullah ibn ʿUmar said that it (anal intercourse with wife) is the little ‘al-
Lūṭīyya’ (Qatāda)78
It is an edge of the works of the people of Lūṭ . . . the enema (Mujāhid)79
3 .4 .4 A bs e n c e of a C on c re t e M e an in g— L ū ṭ ī
It appears that there existed no consensus amongst the
tābiʿūn on the usage of words coined from Lūṭ. The fourth
strand of the tābiʿūn texts makes this point clear. One such
text attributed to one of Abu Ḥanīfa’s teachers—Ibrāhīm al-
Nakha’ī (d. 713), found in the Muṣannaf ʿAbd al-Razzāq—
indicates the term Lūṭī was not completely or universally
understood as referring to homosexual anal intercourse.
About a man who called another man Lūṭī, Ibrāhīm said: His intent, he is to
be asked what he meant?83
3 .5 T H E S I X R U L I N G S T H A T P R E S C R I BE T H E D E A T H
P E N A L T Y : T H E R E F U T A T I O N O F I BN Ḥ A Z M 8 5
It was noted from the aforementioned sections that
Prophetic Hadith on homosexual conduct are weak enough
to preclude deducing any legal rulings from them, a point
that has been conceded by several scholars. Likewise, it was
noted that no authentic text from either the Companions or
their followers exists to deduce any ruling either. In fact it
was noted that there was sufficient difference of opinion
amongst the followers as to the very meaning of the terms
Lūṭī and al-Lūṭīyya, whose meaning was made concrete only
during the time of the jurists, an observation that casts
further doubt on those narratives that specifically used
these terms. This section is aimed at continuing with this
line of refutation, by delineating Ibn Ḥazm’s critique of these
narratives.
According to Camilla Adang, Ibn Ḥazm presents seven
types of rulings on homosexual conduct as defined
specifically by homosexual anal intercourse, of which he
refutes six types of rulings, all of which prescribe capital
punishment for such conduct. Whereas Sections 3.1–3.4
were classified according to whether the narratives were
traced back to the Prophet, the Companions, or their
followers, Ibn Ḥazm actually lumps narratives from the
Companions and the followers together on the basis of the
defined penalty.
Of the six types of rulings that prescribe capital
punishment, the first indicates that both the active as well
as the passive partner, regardless of their marital status, are
to be burnt alive. These texts allude to the Abu Bakr
narrative in Section 3.3.1, although they are traced back to
either Ibn Wahb, who indicates that the perpetrator was
burnt after execution by the sword as per the Prophetic
directive that only God had the prerogative to do so, or to
Ibn Samaan, who indicated that the perpetrator was burnt
alive. Ibn Zubayr, in contradiction to the narrative reported
in Section 3.3.4, Hishām ibn ʿAbd al-Malik (d. 743), and Amir
al-Qasri are also reported to have ordered the burning of
men alive during their times. However, Ibn Ḥazm impugns
the authenticity of these texts by confirming that the Abu
Bakr and ‘Ali texts that depict burning of the perpetrators
have a broken transmission chain, that Ibn Samaan was
attested as a liar by Mālik ibn Anas, that the clear Prophetic
directive forbade killing by fire, and that the narratives
alluding to Ibn Zubayr contain weak links.
The second ruling that is traced back to Ibn ʿAbbās through
Qāḍī Aḥmad ibn Ismāʿīl ibn Dulaym prescribes that both the
perpetrators be thrown from a high mountain and
subsequently pelted with stones. The third ruling, based on
the narratives corresponding to Sections 3.3.3 and 3.3.4,
traced back to both ‘Ali, through Muhammad ibn Saʿīd ibn
Nabāt (d. 1037/8), and Ibn ʿAbbās respectively, indicates
that both the perpetrators are to be stoned regardless of
their marital status. For the third ruling, apart from these
narratives, texts from the subsequent generation of scholars
like Shihāb Zuhrī, who the jurist Mālik ibn Anas greatly relied
on, and Ibrāhīm al-Nakha’ī, who was one of the teachers of
the jurist Abu Ḥanīfa, are also included. The narratives of
both Shihāb Zuhrī, which were also accepted by Shāfiʿī, and
that of Ibrāhīm al-Nakha’ī, are reproduced below.
If anyone deserves to be stoned twice, it is the Lūṭī (Ibrāhīm al-Nakha’ī)
A Lūṭī should be stoned, whether he is muḥṣan or not (Shihāb Zuhrī)
3 .6 IN D IR E C T C O N D E M N A T IO N O F S A M E - S E X
R E L A T IO N S H IP S — T H E ʿA W R A T E X T S
Given the aforementioned weaknesses in the above texts,
sometimes contemporary conservative Muslim authorities
use an indirect condemnation of same-sex relationships. The
argument goes that if Muslims are not allowed to look at the
ʿawra (prescribed covered body parts) of the same gender,
then the issue of same-sex relationships becomes moot.
Such an argument fails to account for the point that prior to
marriage Muslims are forbidden to look at the ʿawra of the
opposite gender as well and as such superimposing the
ʿawra texts on the issue of a legal contract for same-sex
couples itself is irrelevant and inappropriate.
The Hadith recorded in Ṣaḥīḥ Muslim and also narrated by
Ibn Ḥanbal, Abu Dawūd, and Tirmidhī, and which is traced
back to Abu Saʿīd al-Khudrī (d. 682/693) indicates that the
Prophet stated:
A man should not look at the ʿawra of another man nor should a woman look
at the ʿawra of another woman. A man should not be in one garment with
another man nor should a woman be in one garment with another woman.
There are conflicting reports on the authenticity of this
Hadith.87 While one of the transmitters, Al-Ḍ aḥḥāk ibn
ʿUthmān, was deemed as trustworthy by Ibn Ḥanbal, Yaḥyā
ibn Maʿīn, and Abu Zurʿa mentioned that he was not strong
and Abu Ḥātim, while confirming his trustworthiness
concluded that his Hadith is not used as a proof. Likewise,
while Ibn Ḥibbān deemed him trustworthy, Bukhārī did not
include his Hadith in his work.
In his explanation of this Hadith,88 al-Nawawī (d. 1277)
asserts that according to this text, men and women are also
forbidden to look at the ʿawra of the same gender, just as
they are forbidden to look at the ʿawra of the opposite
gender by consensus. Al-Nawawī compares looking at the
ʿawra of the same gender with that of the opposite gender,
which suggests the acknowledgment of the existence of
sexual attraction between same genders. However,
contextually it also seems that the issue is one of modesty
as in another text the Prophet is reported to have prohibited
a woman touching another wearing only one garment as
she might describe her to her husband and it would be as if
he sees her.89 Thus, while modesty is enjoined upon all
Muslims, construing the prohibition of same-sex unions from
this text would not be reasonable as that would mean one
could easily deduce the prohibition of heterosexual
marriage.
Since looking at the ʿawra of the opposite gender is
prohibited except under the exception of necessity or
marriage, this suggests the existence of exception to the
general rule of not looking. As such, one may conclude that
a legal contract between same-sex couples may provide an
exception to the rule of not looking. Since this Hadith cannot
be taken as providing an absolute rule without exceptions,
the issue of not looking at the ʿawra is irrelevant to the issue
of a same-sex legal contract. Likewise, in the context of
Hadith texts that call for separating the beds or blankets of
children over the age of 10 regardless of gender, the issue
at hand is not the prohibition of same-sex unions but of
curbing sex outside a legal contract. In short, same-sex
unions cannot be deemed prohibited based on such Hadith
texts but would require other proofs for prohibition.
N O T E S
Translation of all texts in this chapter is by the authors.
1. Mohamed El-Moctar El-Shinqiti, Should beheading be the penalty for
homosexuals, The Brunei Times, June 13, 2008, accessed January 26, 2016,
http://www.bt.com.bn/friday_special/2008/06/13/should_beheading_be_the_pena
lty_for_homosexuals.
2. Islam and Homosexuality, Mission Islam, accessed January 26, 2016,
http://www.missionislam.com/knowledge/homosexuality.htm.
3. Imani et al., An Enlightening Commentary, Parts 7 and 8, 286.
4. Ibid, 306.
5. Al-Ṭabarānī. Muʿjam Awsaṭ, Hadith No. 4976, Shuab Eman book, in
[ اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe Golden Encyclopedia of the
Prophetic Golden Hadeeth and its Sciences], 2nd edition, (London: Turath
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6. Muhammad Shams al-Ḥaqq al-ʿAẓīm Ābādī, ʿAwn al-Maʿbūd fī Sharḥ Sunan
Abu Dawūd, Volume 6, in [ اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe Golden
Encyclopedia of the Prophetic Golden Hadeeth and its Sciences], 2nd edition,
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7. Yūsuf ibn ʻAbd al-Raḥmān Al-Mizzī, Tahdhīb al-Kamāl, Volume 2, 4, 8, 11,
13, 14, 16, 20, 22, 27, 30, 31, in [ اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe
Golden Encyclopedia of the Prophetic Golden Hadeeth and its Sciences], 2nd
edition, (London: Turath Publishing), CD-ROM, Volume 2, 43, 186; Volume 22,
169; Volume 14, 158–160.
8. Ibid., Volume 20, 278–82.
9. Ibid., Volume 13, 517–19.
10. El-Shinqiti, Should Beheading Be the Penalty for Homosexuals.
11. Ibn ʿAbd al-Barr, Al-Istidhkār fī Sharḥ Madhāhib ʿUlamāʾ al-Amṣār, Volume
7, in [ اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe Golden Encyclopedia of the
Prophetic Golden Hadeeth and its Sciences], 2nd edition, (London: Turath
Publishing), CD-ROM, 495.
12. Al-Mizzī, Tahdhīb al-Kamāl, Volume 16, 79–85.
13. Ibid., Volume 8, 445–48.
14. al-Ḥākim Al-Naysabūrī, Mustadrak, Volume 4, in اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي
[ اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe Golden Encyclopedia of the Prophetic Golden Hadeeth and its
Sciences], 2nd edition, (London: Turath Publishing), CD-ROM, 396.
15. Mohd Elfie Nieshaem Juferi, The Consensus on Homosexuality and The
Illiteracy of Christian Polemicists, Bismika Allahuma, September 18, 2007,
accessed January 26, 2016, http://www.bismikaallahuma.org/archives/2007/the-
consensus-on-homosexuality-and-the-illiteracy-of-christian-polemicists/.
16. Al-Mizzī, Tahdhīb al-Kamāl, Volume 30, 121.
17. Abu Muhammad al-Ḥārith ibn Muhammad ibn Dāhir Al-Tamīmī, Musnad al-
Ḥārith, Volume 2, in [ اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe Golden
Encyclopedia of the Prophetic Golden Hadeeth and its Sciences], 2nd edition,
(London: Turath Publishing), CD-ROM, 565.
18. Al-Mizzī, Tahdhīb al-Kamāl, Volume 27, 221.
19. Sulaymān ibn Aḥmad ibn Ayyūb al-Lakhmī Al-Shāmī, Musnad al-Shāmiyyīn,
Volume 1, 2, in [ اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe Golden
Encyclopedia of the Prophetic Golden Hadeeth and its Sciences], 2nd edition,
(London: Turath Publishing), CD-ROM, 104.
20. Aḥmad ibn ʻAli. Mukhtaṣar al-Kāmil fī al-Ḍ uʿafāʾ Al-Maqrīzī, Volume 4, in
[ اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe Golden Encyclopedia of the
Prophetic Golden Hadeeth and its Sciences], 2nd edition, (London: Turath
Publishing), CD-ROM, 281.
21. Al-Shāmī, Musnad Al-Shāmiyyīn, Volume 2, 205.
22. Muhammad Ibn Ḥibbān, Al-Majrūḥīn, Volume 2, in اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ
[ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe Golden Encyclopedia of the Prophetic Golden Hadeeth
and its Sciences], 2nd edition, (London: Turath Publishing), CD-ROM, 149.
23. For details see: Al-Mizzī, Tahdhīb al-Kamāl, Volume 2, 43, 186; Volume 8,
445–48; Volume 13, 517–19; Volume 14, 158–60; Volume 16, 79–85; Volume 20,
278–82; Volume 22, 169; Volume 27, 221; Volume 30, 121; Al-Maqrīzī, Mukhtaṣar
al-Kāmil fī al-Ḍ uʿafāʾ, Volume 4, 281; Ibn Ḥibbān, Al-Majrūḥīn, Volume 2, 149.
24. Joseph Norment Bell, Love Theory in Later Hanbalite Islam, (Albany: State
University of New York Press, 1979), 129.
25. El-Rouayheb, Before Homosexuality, 77–78.
26. Marc Daniel, Arab Civilization and Male Love, trans. Winston Leyland, in
Reclaiming Sodom, ed. Jonathan Goldberg, (New York: Routledge, 1994), 60.
27. El-Rouayheb, Before Homosexuality, 45.
28. Kugle, Sexuality, Diversity, and Ethics, 222.
29. ‘Abd ar-Razzāq Al-Ṣan‘ānī, Muṣannaf ʿAbd al-Razzāq, Volume 7, 11, in
[ اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe Golden Encyclopedia of the
Prophetic Golden Hadeeth and its Sciences], 2nd edition, (London: Turath
Publishing), CD-ROM, 243.
30. Rowson, The Effeminates of Early Medina.
31. Rowson, The Categorization of Gender, 71.
32. El-Rouayheb, Before Homosexuality, 22.
33. For details see: Ibn Ḥajar al-ʿAsqalānī, Fatḥ al-Bārī , Volume 12, 160; Al-
Mizzī, Tahdhīb al-Kamāl, Volume 4, 430; Volume 20, 278–82; Volume 31, 508–10;
Al-Rāzī, Al-Jarḥ wa-l-Taʻdīl , Volume 3, 396; Volume 4, 498; Ābādī, ʿAwn al-Maʿbūd
fī Sharḥ Sunan Abu Dawūd.
34. Ibn Ḥajar al-ʿAsqalānī, Fatḥ al-Bārī , Volume 12, 160; also see Ibn ʿAbd al-
Barr, Al-Tamhīd li Mā fī al-Muwaṭṭa ʾ min al-Maʿānī wa-l-Asānīd, Volume 22, 272–
73.
35. Rowson, The Effeminates of Early Medina.
36. Kugle, Homosexuality in Islam, 92–96.
37. Abu Bakr Aḥmad ibn Ḥusayn ibn ʿAli ibn Mūsā al-Khusrawjirdī Al-Bayhaqī,
Sunan al-Bayhaqī al-Kubrā , Volume 4, 8, in اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و
[ ﻋﻠﻮﻣﻪThe Golden Encyclopedia of the Prophetic Golden Hadeeth and its
Sciences], 2nd edition, (London: Turath Publishing), CD-ROM, 224.
38. Kugle, Homosexuality in Islam, 90–97.
39. Ṣaḥīḥ al-Bukhārī, Nikah chapter: the forbidding of entering on the women
of effeminate men, in [ اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe Golden
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40. Al-San’ani, Muṣannaf Abdul Razzāq, Volume 11, 242.
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[The Golden Encyclopedia of the Prophetic Golden Hadeeth and its Sciences],
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42. Ibn Ḥanbal, Musnad Ahmad. Musnad Abdullah Ibn ‘Umar.
43. Al-Mizzī, Tahdhīb al-Kamāl, Volume 20, 278–282.
44. Ibid., Volume 31, 508–510.
45. Muhammad ibn Idris ibn al-Mundhir al-Hanẓali Al-Rāzī, Al-Jarḥ wa-l-Taʻdīl ,
Volume 2–4, 9, in [ اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe Golden
Encyclopedia of the Prophetic Golden Hadeeth and its Sciences], 2nd edition,
(London: Turath Publishing), CD-ROM, 498.
46. Al-Mizzī, Tahdhīb al-Kamāl, Volume 4, 430.
47. The story of ʿUmar’s exiling of Naṣr ibn Hajjaaj from Madinah,’ 201633,
Islam QA, accessed January 25, 2016, http://islamqa.info/en/201633.
48. Abu Dāwūd Sulaymān ibn al-Ashʿath al-Azdī Al-Sijistānī, Sunan Abu Dawūd,
Chapter: rule of the mukhannathūn, in اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪ
[The Golden Encyclopedia of the Prophetic Golden Hadeeth and its Sciences],
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49. Al-Ṭabarānī. Muʿjam Awsaṭ, Volume 5, in اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ
[ و ﻋﻠﻮﻣﻪThe Golden Encyclopedia of the Prophetic Golden Hadeeth and its
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50. Ābādī, ʿAwn al-Maʿbūd fī Sharḥ Sunan Abu Dawūd.
51. Al-Rāzī, Al-Jarḥ wa-l-Taʻdīl , Volume 3, 396.
52. Al-Bayhaqī, Sunan al-Bayhaqī al-Kubrā, Volume 8, 232.
53. Abu Jaʿfar Muhammad ibn ‘Amr Ibn Mūsā al-ʿAqīlī, Kitāb al-Ḍ uʿafāʾ al-Kabīr,
Volume 3, in [ اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe Golden Encyclopedia
of the Prophetic Golden Hadeeth and its Sciences], 2nd edition, (London: Turath
Publishing), CD-ROM, 10.
54. Al-Bayhaqī, Sunan al-Bayhaqī al-Kubrā, Volume 8, 232.
55. Ibid.
56. Ṣaḥīḥ al-Bukhārī, Volume 3, 1098.
57. Ṣaḥīḥ al-Bukhārī, Volume 9, Book 84, Number 57.
58. Kugle, Homosexuality in Islam, 137–140.
59. Ibn ʿAbd al-Barr, Al-Tamhīd li Mā fī al-Muwaṭṭa ʾ min al-Maʿānī wa-l-Asānīd,
Volume 5, 22, in [ اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe Golden
Encyclopedia of the Prophetic Golden Hadeeth and its Sciences], 2nd edition,
(London: Turath Publishing), CD-ROM, 316.
60. Al-San’ani, Muṣannaf Abdul Razzāq, Volume 11, 243.
61. Ibn Ḥajar al-ʿAsqalānī, Tahdhīb al-Tahdhīb , Volume 8, in اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ
[ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe Golden Encyclopedia of the Prophetic Golden
Hadeeth and its Sciences], 2nd edition, (London: Turath Publishing), CD-ROM,
305.
62. El-Shinqiti, Threats to Behead Homosexuals.
63. Ābādī, ʿAwn al-Maʿbūd fī Sharḥ Sunan Abu Dawūd, Volume 6, 141.
64. Al-Bayhaqī, Sunan al-Bayhaqī al-Kubrā, Volume 4, 322.
65. Al-Rāzī, Al-Jarḥ wa-l-Taʻdīl , Volume 9, 295.
66. Al-Bayhaqī, Sunan al-Bayhaqī al-Kubrā, Volume 8, 233.
67. Ibn ʿAbd al-Barr, Al-Tamhīd li Mā fī al-Muwaṭṭa ʾ min al-Maʿānī wa-l-Asānīd,
Volume 5, 316.
68. Abū Abdullah Muḥammad ibn Yazīd ibn Mājah al-Rabʿī Al-Qazwīnī, Sunan
Ibn Mājah, Volume 2, in [ اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe Golden
Encyclopedia of the Prophetic Golden Hadeeth and its Sciences], 2nd edition,
(London: Turath Publishing), CD-ROM, 857.
69. Sulaymān ibn Khalaf Al-Bājī, Al-Ta‘dīl wa-l-Tajrīḥ li Man Kharraja ‘anhu al-
Bukhārī fī al-Jāmi‘ al-Ṣaḥīḥ, Volume 2, in اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪ
[The Golden Encyclopedia of the Prophetic Golden Hadeeth and its Sciences],
2nd edition, (London: Turath Publishing), CD-ROM, 565.
70. Al-San’ani, Muṣannaf Abul Razzāq, Volume 7, 429.
71. Ibn ʿUthmān, Muṣannaf Ibn Abi Shayba, Volume 5, 498.
72. Imani et al., An Enlightening Commentary, Parts 7 & 8, 308.
73. Ahmad, The Holy Qur’an, 1297, 1299.
74. Al-San’ani, Muṣannaf Abul Razzāq, Volume 7, 429.
75. Schmitt and Sofer, Sexuality and eroticism,12.
76. Lange, Justice, Punishment and the Medieval Muslim Imagination, 220.
77. El-Rouayheb, Before Homosexuality, 137.
78. Al-San’ani, Muṣannaf Abul Razzāq, Volume 7, 429.
79. Ibn ʿUthmān, Muṣannaf Ibn Abi Shayba, Volume 5, 34.
80. Ibn Ḥajar al-ʿAsqalānī, Talkhīṣ al-Ḥabīr, Volume 3, Book of Nikāḥ, Chapter
that addresses anal intercourse, in [ اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe
Golden Encyclopedia of the Prophetic Golden Hadeeth and its Sciences], 2nd
edition, (London: Turath Publishing), CD-ROM, 179–186.
81. Ibid.
82. Ibn ʿUthmān, Muṣannaf Ibn Abi Shayba, Volume 5, 498.
83. Al-San’ani, Muṣannaf Abul Razzāq, Volume 7, 426.
84. Ibn Manẓūr, Lisān al-ʿArab, Volume 7, in اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و
[ ﻋﻠﻮﻣﻪThe Golden Encyclopedia of the Prophetic Golden Hadeeth and its
Sciences], 2nd edition, (London: Turath Publishing), CD-ROM, 396.
85. This section owes much to Adang, Ibn Ḥazm on Homosexuality.
86. Imani et al., An Enlightening Commentary, Parts 7 and 8, 286.
87. Al-Mizzī, Tahdhīb al-Kamāl, Volume 13, 273–274.
88. Ṣaḥīḥ Muslim. Volume 4, in [ اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe
Golden Encyclopedia of the Prophetic Golden Hadeeth and its Sciences], 2nd
edition, (London: Turath Publishing), CD-ROM, 30.
89. Adang, Ibn Ḥazm on Homosexuality, 28.
C hapt e r 4
S u n n ī N arrat iv e s on
H e t e ros e x u al A n al I n t e rc ou rs e
Ityān bi-l-dubur
4 .1 T E X T S O N P R O H I BI T I O N : T H E A BU H U R A Y R A , I BN
ʿ A BBĀ S , K H U Z A Y M A I BN T H Ā BI T R E P O R T S , T H E
T I R M I D H Ī , A N D I BN M Ā J A T E X T S
Four texts, paraphrased below, are traced back to Abu
Hurayra (d. 678), and out of which three indicate that the
person who indulges in heterosexual anal intercourse either
rejects the message of the Prophet, becomes accursed, or
an apostate. The fourth text actually is eschatological in
essence and seemingly depicts that such a person would
perhaps be bereft of God’s mercy on Judgment Day. The first
text has been narrated by al-Nasāʾī (d. 915), Bukhārī (d.
870), Abu Dawūd (d. 888), Aḥmad ibn Ḥanbal (d. 855), and
Bayhaqī (d. 1066) as follows:
The Prophet said: Cursed is the one who enters a woman in her anus.
One of the narrators of this text Suhayl ibn Abi Ṣāliḥ has
been deemed as unreliable or weak by Hadith experts like
Abu Ḥātim (d. 890) who suggested that Suhayl’s Hadith may
be quoted but may not be used as evidence of the actual
saying of the Prophet and likewise, Hadith experts like Ibn
Ma’in (d. 233 AH/852) stated that Hadith scholars stay away
from Suhayl’s narratives.1
While the second text was compiled by Abu Dawūd, Aḥmad
ibn Ḥanbal, al-Nasāʾī, and Ibn Māja (d. 887), it has been
deemed weak by al-Bazzār who indicated that one of the
narrators in the transmission chain, Ḥārith ibn Mukhlid, is
not well known. Likewise, Yaḥyā ibn Saʿīd al-Qaṭṭān (d. 198
AH/817) raised his doubts on the interconnectivity of Ḥārith
ibn Mukhlid with Suhayl ibn Abi Ṣāliḥ, the next narrator in
the chain, who was also deemed to be unreliable or weak by
Hadith experts. This text is paraphrased below.
God does not look, on the Day of Judgment, at a man who approached a
woman from her anus.
A variant of this text has been traced back to Ibn ʿAbbās (d.
687),3 and has been recorded by luminaries like Tirmidhī, al-
Nasāʾī, Ibn Ḥibbān, al-Bazzār, and Aḥmad ibn Ḥanbal. There
are several chains for this text, some of which are deemed
mawqūf (interrupted) in that they do not reach back to Ibn
ʿAbbās. Al-Bazzār has recorded the relatively stronger chain;
however, even in this transmission chain, one of the
narrators, Abu Khālid al-Ahmar, was evaluated as either
having a bad memory or that he was prone to error and in
fact the expert Ibn Ma’in (d. 233 AH/852) did not deem his
narrative as an evident proof.4 Another chain, which is
considered strong in the transmission chain, is reported by
al-Nasāʾī through Mu’ammar. Notwithstanding authenticity
critiques, the narrative is paraphrased below.
A man asked Ibn ʿAbbās about coming to a woman from her anus. He
responded: You ask me about Kufr.
4 .2 T E X T S O N N E U T R A L IT Y
While a majority of the texts seem to indicate the
prohibition of heterosexual anal intercourse, there exist
other texts that seem to refute the understanding that a
consensus opinion against heterosexual anal intercourse
could be reached based on textual evidence.11 A variant
text of the Khuzayma ibn Thābit report, mentioned in the
previous section, draws out the point of nonprohibition if not
outright neutrality. This second variant of the narrative,
paraphrased below, has a weakness in the transmission
chain as one of the narrators, Haramī ibn Abdullah, was
deemed as an unknown by the Hadith experts. The text
indicates Abdullah ibn ‘Ali ibn Al-Sāʾib responding to the
man’s question as opposed to the Prophet.
A man asked Muhammad ibn Ka’b about (anal intercourse) who referred the
question to Abdullah ibn ‘Ali ibn al-Sāʾib who responded this is filthy even if
permitted.
4 .3 T E X T S O N P E R M I S S I BI L I T Y — T H E I BN ʿU M A R T E X T S
While there appear to exist texts that seem to prohibit
heterosexual anal intercourse, enjoyment of the anus
without penetration was deemed licit in Muslim
jurisprudence as in the work of al-Nawawī (d. 1278).21
Likewise, al-Zabīdī (d. 1790) opined on the issue as follows.
To enjoy the backside without entering the rectum is permissible, because
with that exception, all parts of a woman’s body may be enjoyed by the
husband.22
4 .4 T H E P O S I T I O N O F T H E J U R I S T M Ā L I K I BN A N A S ( D .
7 9 5 ) A N D T H E S A L A F ( P IO U S E L D E R S )
As noted earlier, apart from Bukhārī, the jurist Mālik ibn
Anas, founder of the Mālikī school of jurisprudence, also
reported the Ibn ʿUmar narrative, though not in his
Muwaṭṭaʾ. Just as there is a report on Ibn Abi Mulayka’s
using oil for anal intercourse with a slave girl, there also
exist texts recorded by Suyūṭī (d. 1505) and al-Alūsī (d.
1854) that seem to indicate that Mālik himself indulged in
the act of heterosexual anal intercourse.39
However, as in the Nāfiʿ and Ibn ʿUmar context, the online
Tafsīr of Ibn Kathīr and the Islamweb site reference a text
from Abu Bakr ibn Ziyād Naysābūrī, as follows, which
indicates that Mālik expressed that people fabricated lies
against him on the subject.
Ismāʿīl ibn Rūḥ asked Mālik ibn Anas, What is your position on having sex
with women in the anus? Mālik replied, You are not an Arab! Does sex occur
but in the place of tilth (pregnancy)? Do it only in the farj (vagina). Ismāʿīl
responded, People claim that you allow that practice. He said, They
fabricate lies against me, they fabricate lies. 40
4 .5 T H E C O M M E N T A R Y O F A L - R Ā Z Ī ( D . 1 2 0 9 )
The argument for permissibility of heterosexual anal
intercourse revolves around Ibn ʿUmar’s understanding of
the verse of tilth (2:223). This verse, part of which is
reproduced below, has been interpreted differently by
scholars on the basis of the key words used in the text,
namely, Ḥarth-tilth and faʾtū ḥarthakum annā shiʾtum—
so go to your tilth as you will.
Your women are a tilth for you so go to your tilth as you will . . . . (2:223)
5 .1 T H E C A P IT A L P U N IS H M E N T
Mālik (d. 795), on the basis of a question he asked an elder
of Medina—Shihāb Zuhrī (d. 741/2), opined that both the
active and passive partners in liwāṭ should be killed
irrespective of their marital status.32 This opinion is not
based on a Prophetic text but rather based on Mālik’s
deference to the scholars of Medina, specifically Shihāb
Zuhrī. Furthermore, Shihāb Zuhrī has another opinion,
according to which the punishment for liwāṭ is similar to that
of zinā (fornication) in that married perpetrators of liwāṭ are
lapidated whereas unmarried perpetrators are flogged.33
There is also a narrative traced back to Shihāb Zuhrī
according to which there is no prescribed punishment for
the one who slanders another with the invective you
Lūṭī . 34 This is important to note since slander is one of the
five principal crimes that include theft, highway robbery,
fornication, and murder for which the Qur’an stipulates a
punishment.35
Ibn Ḥazm (d. 1064) critiqued scholars for referring to
Shihāb Zuhrī’s opinions without providing arguments rooted
in the Qur’an and the Hadith texts. He indicated that such
scholars would accept Shihāb Zuhrī’s opinions, whenever his
opinions correspond with their own.36 Furthermore, on the
basis of a Prophetic text and the Qur’anic verse 25:68, he
argues that the capital punishment cannot be inflicted
except for apostasy, fornication, and homicide.37 As such,
the case of the scholars who propose the capital penalty for
liwāṭ without equating it to zinā is extremely weak. In fact,
some scholars, like Javed Ghamidi,38 based on verse 5:32,
even argue that the death penalty is reserved only for
murder or for disorder through terror or persecution.39
Like Shihāb Zuhrī, Shāfiʿī (d. 820) and Ibn Ḥanbal (d. 855)
also supported this punishment through one of their
opinions. Unlike Mālik, who relied on Shihāb Zuhrī’s opinion,
they substantiated their argument through a Prophetic text,
noted in Section 3.1.1, or by referring to the narratives that
depict the opinions and conduct of the Companions Abu
Bakr (d. 634), ʿUthmān (d. 656), ‘Ali (d. 661), and Ibn ʿAbbās
(d. 687).40 However, the Prophetic text they referenced is
part of the nine strands of Prophetic texts, alluded to in
Section 3.1, whose authenticity has been questioned by
Hadith experts like Bukhārī (d. 870) and Muslim (d. 875).
Furthermore, even Mālik who could have substantiated his
opinion with this text does not report it in his collection of
Hadith—Al-Muwaṭṭaʾ.
Ibn Ḥazm impugned the authenticity of the texts that
depict the conduct of the Companions by confirming that
the Abu Bakr and Ali texts that depict burning of the
perpetrators have a broken transmission chain, that one of
the narrators in the transmission chain, was attested as a
liar by Mālik and that the clear Prophetic directive forbade
killing by fire.41 Likewise, he stated that the reports that are
traced back to Ibn ʿAbbās have been transmitted by all
kinds of unknown people and therefore cannot be relied
upon.42 It is important to reiterate that Mālik did not base
his ruling on the texts that depict the conduct of the
Companions, since he deemed them weak by doubting the
trustworthiness of one of the narrators, and instead resorted
to one of the opinions of Shihāb Zuhrī, an elder from
Medina.
Some writers mention that texts that depict the opinions of
the Companions ʿUmar (d. 644) and ʿUthmān (d. 656)
indicate that both suggested the capital punishment for the
perpetrators of liwāṭ.43 ʿUthmān (d. 656) is also credited
with acting upon the advice of ‘Ali (d. 661) who prescribed
the punishment of 100 lashes; however, these traditions
were not recorded in the authoritative collections such as
those of Bukhārī and Muslim.44 Furthermore, apart from Ibn
Ḥazm’s general refutation of the opinions on capital
punishment, there exists another opinion attributed to
ʿUmar, according to which ʿUmar simply asked some young
men to not sit with a person suspected of liwāṭ.45 While this
text also is not found in the relatively more authentic Hadith
compilations of Bukhārī and Muslim, it is interesting to note
that ʿUmar did not ask all men to dissociate themselves
from this particular individual but only some of the young
men. It deserves to be noted that ʿUmar’s specification of
young men only substantiates the assumptions made by the
jurists that liwāṭ was generally perpetrated on youth.
As noted earlier in chapter 3, the texts that depict the
conduct of Abu Bakr do so in the context of apostasy and
murder, which, apart from transmission chain weakness
issues, further weakens the case to extend the capital
punishment from the context of apostasy and murder to
exclusive cases of liwāṭ. Ibn Ḥazm also disputed the case of
those scholars, including Mālik,46 who deduce a penalty for
liwāṭ based on the context of the people of Lūṭ. He
contested that since the people of Lūṭ were destroyed for
their abominable conduct and rejection of God’s Prophet,
scholars who deduce the capital penalty for liwāṭ ‘would be
inconsistent in their methodology if they prescribed capital
punishment for perpetrators of liwāṭ who did not disbelieve
in God’s Prophet. Furthermore, he argued that people who
tamper with weights and measures should be burned, and
people who wound another person’s she-camel should be
executed because, like the people of Lūṭ, the people of
Shuʿayb and Ṣāliḥ were destroyed respectively for those
reasons as mentioned in the Quran.47 Thus, by drawing out
the contradictions and inconsistencies in their approach, Ibn
Ḥazm effectively refuted the proponents of capital
punishment for liwāṭ.48
Finally, the texts that depict the opinion of Ibn ʿAbbās that
the perpetrators of liwāṭ must be killed were not considered
authentic enough to allow his students like Mujāhid Ibn Jabr
(d. 722) to prescribe the same punishment.49 The opinions
of tābiʿūn like Mujāhid indicate that either the texts that
depict the opinions and conduct of the Companions are not
trustworthy or alternatively the tābiʿūn felt that the opinions
of the Companions on liwāṭ were not binding. In the context
of finding proofs for rulings, jurists like al-Shawkānī (d.
1834) have stated that Muslims are required to follow the
Qur’an and the Sunnah and as such the opinion of a single
Companion cannot constitute proof.50 Even Abu Ḥanīfa is
reported to have said that in the absence of guidance from
the Qur’an and Sunnah, he may resort to an opinion of a
Companion and may either follow or abandon it.51
Given that the opinion of the capital punishment for liwāṭ
without any qualifications cannot be reasonably defended
from the primary sources, the Qur’an and the Sunnah, and
given that the texts that depict the opinions and conduct of
the Companions are not trustworthy, and given that many
jurists did not reference Shihāb Zuhrī’s opinions, with Ibn
Ḥazm going so far as to refute his position, and given that
even contemporary scholars like Sheikh Mohamed el-Moctar
el-Shinqiti have critiqued the capital punishment for liwāṭ, it
may be concluded that scholars who still uphold capital
punishment may not have carefully engaged with the
tradition. Moreover, given that the Qur’an directly and
explicitly addresses prohibitions such as those on
intoxicants and gambling (5:90), pork (5:03), fornication
(17:32), incest (4:23), usurpation and murder (4:29), slander
(49:11), usury (2:275), disobedience to parents and
associating partners with God (17:23) through the variants
of the words, do not, forbidden, or penalty of Hell, and
given that the Qur’an has not addressed liwāṭ in as direct a
manner as leads one to question whether the capital
punishment can be substantiated on the basis of the vague
treatment of the issue in the Qur’an.
In other words, the typical prohibitions in the Qur’an
appear in the form of negative commands that start with lā
tafʿal (do not), through the usage God forbids, through
nafy al-ḥall (denial of permissibility) or through a command
that requires avoiding something and that implicit
injunctions that praise or condemn a conduct do not
precisely indicate whether the objective is command and
prohibition or warning and recommendation.52 As such, the
case for capital punishment for liwāṭ cannot be reasonably
substantiated on the basis of the people of Lūṭ verses, as
has also been indicated by Ibn Ḥazm. As such, since
scholars are informed by their sociocultural values, and
given that some may not have carefully engaged with the
tradition, allows us to carefully revisit the opinions of the
next group of jurists who opined that the punishment of
liwāṭ should be the same as that for zinā.
5 .2 P U N IS H M E N T O F Z IN Ā
While one opinion from Shāfiʿī (d. 820) and Ibn Ḥanbal (d.
855) supports the punishment by killing, it is Mālik (d. 795)
who seems to have been the predominant proponent of the
capital punishment for liwāṭ. Shāfiʿī and Ibn Ḥanbal and
many of the followers of their schools are better known to
have prescribed the punishment for zinā for liwāṭ. The
jurists who support this punishment substantiate their case
by texts that indicate that the Companion Ibn Zubayr (d.
692) meted out the punishment for zinā to perpetrators of
liwāṭ.53 However, Ibn Ḥazm contends that texts from not
only Ibn Zubayr but also other Companions are traced
through unknowns in the transmission chain of narrators
and therefore he suggests that it would be inappropriate to
accept any opinion supposedly attributed to the
Companions on liwāṭ.54
Ibn Ḥazm also emphasized that the term zinā is never
equated with liwāṭ either in common usage or in the
Prophet’s authentic directives.55 Given Ibn Ḥazm’s doubts
on the authenticity of the texts on liwāṭ attributed to the
Companions further bolsters the case made in Section 3.4
that narratives attributed to the Companions that use words
like Lūṭī and al-Lūṭīyya were a product of later development.
It is also interesting to note that the Hadith, which were
deemed weak in chapter 3, and the texts depicting the
Companions’ opinions and conduct with respect to liwāṭ,
were only compiled in a series of monographs starting from
al-Haytham b. Khalaf al-Dūrī (d. 919) and that these
compilations were being produced as late as the
seventeenth century.56 This would suggest that a strong
position against liwāṭ only began to emerge between the
tenth and the seventeeth centuries, whereas there may
have been relatively more ambiguity on the issue prior to
that time period.
The equation of the liwāṭ punishment with that of zinā is
also supported by other jurists as Ibrāhīm al-Nakha‘ī (d.
715), supposedly one of the teachers of Abu Ḥanīfa (d. 765).
However, like Shihāb Zuhrī (d. 741/2) whose opinion on liwāṭ
informed Mālik’s (d. 795) ruling, Ibrāhīm al-Nakha‘ī is
attributed with more than one opinion on the punishment of
liwāṭ. Specifically, the opinions attributed to him support all
three rulings on the punishment of liwāṭ, that is, capital
punishment, punishment of zinā, and discretionary
punishment.57 This ambiguity in opinions further weakens
the case of those who propose the punishment of zinā for
liwāṭ.
Apart from the Ibn Zubayr texts, several jurists also
substantiated the penalty of zinā for liwāṭ through a
Prophetic text that defines the perpetrators of liwāṭ as
perpetrators of zinā. However, this Prophetic text is
considered weak by several Hadith experts as one of the
narrators in the transmission chain is deemed a liar,
whereas another is categorized as unknown.58 Another
reason why the punishment of zinā is not deduced from this
Prophetic text is that another Prophetic text also equates
siḥāq (tribadism) between women to zinā. However, Ibn
Ḥazm refutes this report as one of the narrators is deemed
as a weak transmitter and unconnected with other narrators
in the transmission chain.59 Thus, both Prophetic reports
that equate liwāṭ and siḥāq with zinā are considered weak
based on the critique of the transmission chain. It is also
important to note that aside from transmission chain issues,
several jurists opined that these texts are figuratively
associating liwāṭ and siḥāq with zinā, to indicate that liwāṭ
and siḥāq are sinful acts.60 As such, they argued against
punishment of zinā for liwāṭ.
Several Shāfiʿī and Ḥanbalī jurists, however, as well as a
minority of Ḥanafī jurists used qiyās (analogical deduction)
to equate liwāṭ with zinā and as such applied the
punishment of zinā to liwāṭ. They analogized liwāṭ with zinā
by reasoning that since both acts involved penetration and
that the objective in both acts was the pursuit of sexual
desire.61 Despite the differences between liwāṭ and zinā,
many jurists applied qiyās khafī (hidden analogy) to apply
the ḥadd penalty of zinā to liwāṭ. However, qiyās involves
juristic speculation and a ruling based on qiyās is considered
weak and rarely final. The methodology of qiyās to
determine the causes and objectives of divine injunctions
has been critiqued by Mutazilah, Ẓ āhirī, Shī‘ī, and some
Ḥanbalī scholars.62 Furthermore, Ḥanafī jurists reject the use
of qiyās in divinely ordained punishments, including zinā,
and attribute a legal maxim in this regard to Abu Ḥanīfa.63
Likewise, the Mālikī jurists have rejected the use of qiyās of
liwāṭ to zinā.64 Given the disagreements on analogizing
liwāṭ to zinā by jurists from many schools, the Ḥanafī jurist
Ibn al-Humām (d. 1457) stated that everybody disagreed on
the analogy.65
In order to apply the ruling of zinā to liwāṭ through qiyās
there must not only be important common elements
between the two acts but also no significant factors that
might impede the analogy. As noted earlier, jurists who
applied the punishment of zinā to liwāṭ reasoned that the
elements of intercourse and desire were common between
zinā and liwāṭ. However, jurists who disagreed with this
analogy fell back to the definition of zinā and indicated
sufficient differences between the two acts. Ḥanafī jurists
like Abu Yūsuf (d. 767) and Shaybānī (d. 805) defined zinā
as the penetration of a farj (genital) by another farj in a
legally prohibited manner to satisfy carnal desire in a
desired object.66 Based on this definition and other factors,
several differences between zinā and liwāṭ break the
analogy between the two acts.
Past scholars including Abu Ḥanīfa did not consider the
anus to be farj67 and this violates the condition of the
penetration of a farj. Ḥanafī jurists like Samarqandī (d. 1144)
and Kāsānī (d. 1191) clearly defined zinā as the insertion of
the penis into the vagina.68 A minority of Shāfiʿī and Ḥanbalī
jurists prescribed 100 lashes to the passive partner in liwāṭ
on the basis of the understanding that the Ḥadd of zinā
applied to cases where the vagina was penetrated.69
Likewise, differentiating between zinā and liwāṭ, Shāfiʿī, in
one of his opinions, also argued that the passive partner
should not be killed irrespective of his marital status.70
Distinguishing between the two acts, some scholars also
opined that mahr (dower payment) did not become
incumbent on anal penetration as the anus was not acquired
through a marriage contract.71 Likewise, by alluding to a
report, which indicates the Prophet defining zinā as a man
illicitly obtaining from a woman that which he can lawfully
obtain from his wife, Ibn Ḥazm also defines zinā as involving
a penis and vagina. While some scholars may argue that
linguistically the term zinā applies to all acts outside
marriage or mulk yamīn, Ibn Ḥazm indicates that another
Prophetic report, which indicates the genitals disproving or
confirming the act of zinā committed by limbs, alludes to
the subsequent pregnancy and therefore confirms that zinā
involves a penis and vagina.72
Several scholars also distinguished between the two acts
by arguing that a person’s oath on not committing zinā
remained intact if he instead committed liwāṭ. Furthermore,
and notwithstanding authenticity issues of the texts, they
argued that had the Companions equated liwāṭ with zinā,
they would not have differed in their opinions on liwāṭ.73
Scholars also emphasized that, in contrast to liwāṭ, zinā
included the danger of procreation for a child born outside a
legally sanctioned relationship, and whose pedigree would
be eternally disputed, may grow up without a father.74
Furthermore, they argued that liwāṭ was half as less
widespread than zinā as there was only one solicitor in the
act in that they assumed that males generally do not desire
to be penetrated and therefore, deterrence through
punishment was not merited to the same extent as that for
zinā.75 This last point is also substantiated by the
assumptions made explicit by al-Rāzī, Abu Ḥanīfa, and Ibn
Taymiyya, as noted in Section 2.5, that given the humiliation
and subordination associated with the act, the passive
partner in liwāṭ generally does not desire to be penetrated
unless it were for pecuniary or other reasons.
Given that the zinā punishment cannot be reasonably
supported on the basis of texts, which are deemed weak,
and even on the basis of analogy, which was rejected by
many jurists, it may be concluded that scholars who still
uphold the zinā punishment for liwāṭ may not have carefully
engaged with the tradition. It is also important to note that
the past jurists who prescribed the zinā punishment
essentially rejected deducing any ruling from the verses on
the people of Lūṭ for liwāṭ, especially given the fact that
contemporary conservative Muslims try to situate gays and
lesbians in the context of the people of Lūṭ. Moreover, given
that many past jurists did not prescribe the punishment for
liwāṭ based on the verses on the people of Lūṭ, it seems that
liwāṭ, Lūṭī, and other allied terms were technical in nature
and did not entirely correspond to the definition of the acts
of the people of Lūṭ. As such, given that many past jurists
critiqued the zinā punishment for liwāṭ allows us to carefully
revisit the opinions of the next group of jurists who opined
that instead of either capital or zinā punishment, a
discretionary punishment is warranted for liwāṭ.
5 .3 T H E T A ʿZ ĪR — D IS C R E T IO N A R Y P U N IS H M E N T
Amongst the past jurists, while the Mālikīs supported capital
punishment and the Shāfiʿī, Ḥanbalī as well as a minority of
Hanafis predominately supported zinā punishment for liwāṭ,
the majority of Hanafis supported discretionary
punishment. 76 It seems that this approach toward liwāṭ
emerged from one of the three opinions of Ibrāhīm al-
Nakha‘ī, as noted in Section 5.2, and continued through Abu
Ḥanīfa77 to Dāwūd al-Ẓ āhirī (d. 883), founder of the Ẓ āhirī
school, and hence to the Ẓ āhirī jurist Ibn Ḥazm. Jurists like
Sarakhsī (d. 1096) and Kāsānī (d. 1191) stated that liwāṭ did
not have a legally prescribed punishment, whereas
according to Ibn al-Humām (d. 1456), there is no legally
prescribed injunction against liwāṭ based on the Qur’an,
Hadith, or any ijmāʿ (consensus) on the issue.78 In fact,
Kāsānī passed over the Hadith on liwāṭ as he deemed their
evidence not even worthy of refutation.79 Given the absence
of any legally prescribed punishment, some Ḥanafī jurists
stated that any whipping should not exceed 39 lashes, that
is, one less than the lowest Ḥadd punishment that
constitutes 40 lashes.80 Ibn Ḥazm went so far as to state
that based on a Prophetic text that no man should be
beaten with more than 10 lashes except for in the case of
divinely sanctioned punishments.81
As noted in Section 5.2, Ibn Ḥazm rejected opinions based
on the weakness of the texts that equated either liwāṭ or
siḥāq (tribadism) with zinā. He also refuted Shihāb Zuhrī’s
position, who prescribed hundred lashes for siḥāq, a penalty
deduced from the equivalence of liwāṭ and siḥāq with the
gravest and least severe forms of zinā, respectively.82 As
such, he prescribes the same penalty for liwāṭ and siḥāq
based on the following Prophetic text.
If it is true that there is no Ḥadd punishment for this person because neither
God nor His Prophet prescribed a penalty, then the rule is that the person did
something munkar-wrong. Therefore, the munkar-wrong needs to be
corrected by employing the taʿzīr-discretionary penalty, which is below the
Ḥadd punishment, by hitting the person not any more than the Prophet’s
order, and by removing his harm away from the people.83
5 . 3 . 1 T he ‘ T aʿ z ī r- D is c re t ion ary’ P u n is hm e n t —
N on pe n e t rat iv e A c t s
While, liwāṭ was deemed a major sin, which merited a taʿ zīr
punishment according to the third group of jurists,
nonpenetrative acts were not considered liwāṭ but rather
minor sins, which either merited a taʿ zīr penalty or
supererogatory works for expiation. The ʿ uqūbāt (penal
code) under the Ottomans also mentions that masturbation
if done out of pleasure would merit a taʿ zīr penalty, which
may perhaps put nonpenetrative sexual acts at the same
level as that of masturbation committed for pleasure.112
This may be bolstered by Bouhdiba’s assertion that siḥāq
incurred the same penalty as that for auto-eroticism,
although he also includes bestiality and necrophilia as well
in that list which tempers such equations.113
Acts like kissing, caressing, and mufākhadha (intercrural
intercourse) between males, while deemed reprehensible,
were not categorized as constituting liwāṭ.114 Such acts, and
to which one may add siḥāq for equivalence, were deemed
as minor sins by jurists like al-Bujayrimī (d. 1806) who
opined that they became major sins if committed repeatedly
and by jurists like Ibn Ḥajar al-Haytamī (d. 1503) who opined
that they became major sins if committed in conjunction
with another minor sin like abusing a neighbor’s trust.115
Some assert that the gravity of such sins increases if they
are justified.116 Others opine that acts like touching, kissing,
embracing, and informal interaction are all major sins based
on verse 17:32 and that the majority, like al-Bujayrimī,
agree that persistence of minor sins amounts to a major
sin.117
Some scholars believed that the word lamam (venial faults)
used in verse 53:32, which alludes to forgiveness to those
who commit venial faults but shun major sins, referred
specifically to nonpenetrative sexual acts.118 Others opine
that lamam refers to minor or major sins committed
inadvertently based on verse 3:135, even though this verse
does not contain that word, but they also temper this
understanding on the basis of their understanding of verse
4:31 that lamam refers to minor sins, which may be forgiven
through acts of worship and good deeds.119 According to al-
Jāḥiẓ (d. 869), some Companions of the Prophet interpreted
the word lamam in verse 53:32 to include kissing, touching,
or even other nonpenetrative sexual acts.120 While jurists
like al-Shirbīnī (d. 1570) opined that acts falling short of
intercourse merited the taʿ zīr penalty, others like the Mālikī
jurist al-Zurqānī (d. 1688) assumed that such minor sins,
even if committed maʻa al-iṣrār (repeatedly and willfully)
would be expiated by supererogatory works, even if the
perpetrator did not repent as based on the understanding of
the verse 11:14 that indicates that good deeds remove evil
deeds.121 In short, the concern of the two Ḥanafī jurists, who
opined that the punishment for liwāṭ would be worse in the
Hereafter, may be tempered by the opinions of other jurists,
especially on nonpenetrative sexual acts.
To the extent that acts falling short of penetration are
deemed minor sins, and acknowledging the difference of
opinion amongst jurists concerning such acts, it may be
opined that no punishment may be warranted and that
there is scope for expiation of such sins even if they are
done repeatedly.
5 . 3 . 2 F e m ale S e x u al A c t — S iḥ ā q
As in the case of sexual acts between males, where liwāṭ is
singled out and predominately dealt with in jurisprudence,
the same is true in the case of sexual acts between females,
where siḥāq (rubbing) is singled out in jurisprudence. Unlike
liwāṭ however, where penetration is involved, siḥāq is
described as grinding or rubbing and as such those who
ascribe the capital punishment for liwāṭ do not apply the
same for siḥāq. Nonetheless, a similar contempt is exhibited
for siḥāq as it is viewed as an act outside the folds of a legal
contract. Sometimes this contempt is rationalized by
reference to texts that juxtapose acts between females with
those of the people of Lūṭ or the people of Rass as
mentioned in the Qur’an.
According to a text reported by al-Muttaqī al-Hindī (d.
1567), the 10 reasons for the destruction of the people of
Lūṭ include women having sex with each, people playing
with pigeons, beating drums, cutting beards, whistling, and
wearing silk.122 The list of some trivial vices in the list only
raises the question on the authenticity of such texts and
substantiates the point that personal distaste and contempt
may have driven the construction and subsequent
circulation of these texts. Regardless, just as the conduct of
the people of Lūṭ included exploitative conduct, likewise,
according to al-Nuwayrī (d. 1333), based on one text, the
people of Rass were involved in idol worship, and began the
practice of swapping and sodomizing their wives, which led
women to grind with one another.123 However, while the
people of Rass are discussed in verses 25:38–39 and 50:12–
14, the Qur’an does not connect them with lesbianism and
neither do Zamakhsharī (d. 1143),124 Ibn Kathīr (d. 1373), or
Ṭabarī (d. 923) in their exegetical commentaries. Thus, the
connection between the people of Rass and siḥāq does not
seem to be justified.
Ibn Qudāma (d. 1223) is noted as having supported the
position that two women involved in siḥāq are fornicators
and a similar point is presented through a Hadith text by Al-
Ṭabarānī.125 However, such opinions are not justified under
classical jurisprudence, especially given the fact that the
definition of fornication for the purpose of Islamic law is
specific to vaginal penetration by penis and as such zinā
does not include liwāṭ or siḥāq.126 The opinion that a
lesbian’s testimony is not acceptable on the basis of her
being an evildoer is also presented127; however, according
to Kamali, while a mufti bases his fatwā on religious
considerations, a judge must only look at objective evidence
and as such a pious individual in a court case is not treated
differently from an impious person or one without a
religion.128 Moreover, the issue of testimony is irrelevant to
the issue of a legal contract for a same-sex couple.
Scholars like al-ʿIzz ibn ʿAbd al-Salām (d. 1263) opined that
a Muslim woman is not permitted to uncover in front of a
woman who engaged in siḥāq, because she is an evildoer
who can describe intimate parts to others.129 Likewise, in
the context of the Hadith on prohibiting women from
sleeping under one blanket, the narrative that comes from
Ibn Masʿūd (d. 650) also indicates the reason of the
possibility of a woman describing another to her husband,
thereby enabling him to virtually see the other woman.130
However, as in the case of the mukhannath who was
banished from the Prophet’s household, this describes the
concern on modesty and appropriate behavior. Furthermore,
the issue of not looking at the ʿawra is irrelevant to the issue
of a same-sex legal contract wherein the issue of not
looking at the ʿawra becomes irrelevant.
The above analysis indicates how applying the framework
of siḥāq, as addressed by the classical jurists, to the
concerns of lesbians would be neither appropriate nor
reasonably justified.
5 .4 D E C R IM IN A L IZ A T IO N O F
S A M E - S E X A C T S
As noted in Section 5.3, given that the question of same-sex
legal relationships would have been absurd to the past
jurists and that same-sex acts were viewed outside the
scope of a legal relationship may substantiate the view that
as opposed to any qubḥ property of same-sex acts, it is the
absence of a legal relationship that seems to have been the
main reason behind the reprehensibility, prohibition, and
punishment for liwāṭ and nonpenetrative sexual acts that
may include siḥāq. However, while the moral
reprehensibility of nonpenetrative sexual acts including
siḥāq may be explained by the absence of a legal
relationship, jurists have provided further rationales behind
the moral reprehensibility of liwāṭ which will be explored in
Section 5.5.
To the extent that nonpenetrative sexual acts outside a
legal relationship are considered minor sins, which,
according to some jurists, even if repeatedly committed
could be expiated through supererogatory works, according
to other jurists, such sinful acts could be punished through
some taʿ zīr penalty. However, it seems that a case for
decriminalization, that is, waiving of any punishment, at
least for such acts, could be substantiated by revisiting
Muslim jurisprudence on the rationale behind punishment.
As such, al-Qarāfī (d. 1285) argued that sins whose secular
harms were inconsequential enough to not merit any legal
punishment as a severe penalty would be disproportionate
relative to the harm of the sin whereas a proportional
penalty would be insufficient to deter the commission of
such sins.131
In the context of liwāṭ, a similar tension in the prescription
of a punishment is also noticed in Ibn al-Qayyim’s (d. 1350)
statement when he indicates that it might be better to inflict
capital punishment on the passive partner as being
penetrated was akin to being damaged beyond repair as he
was given a death after which no life is wished, which he
tempers by stating that the passive partner would become a
martyr if he were killed as capital punishment would be a
transgression against such a person.132 As such, Ibn al-
Qayyim, despite being a Ḥanbalī scholar, whose
jurisprudence school either upheld capital or zinā
punishment for liwāṭ, seemingly suggests that the
punishment for the passive partner is disproportionate to
the committed sin. However, he also notes, based on the
sociocultural values of his time, that being penetrated was
akin to being vanquished perhaps through the dishonor
associated with the act. This dishonor associated with the
act has even been noted in the dream literature; for
instance, al-Nābulsī (d. 1731) mentioned that to dream of
penetrating a rival indicates that one will get the better of
him in real life, whereas being penetrated by him would
indicate the reverse.133 However, nonpenetrative acts
including siḥāq are not usually associated with such
dishonor or subordination associated with liwāṭ, which, as
noted before, would be explored in greater detail in Section
5.5.
According to Ibn Ḥazm, the taʿzīr penalty that includes
detention and beatings is based on the premise of
correction or rehabilitation and removing the harm of the
crime from the public. However, as noted in Section 5,
physicians like al-Rāzī (d. 925) not only indicated a genetic
cause but also notwithstanding cures, conceded the
incurability of ʾubna. To the extent that one accepts the
genetic cause for ʾubna or siḥāq would suggest that any
punishment based on the premise of correction or
rehabilitation would not meet its objective. Jurists like the
Ḥanafite Kāsānī (d. 1191) indicated that given the rationale
of punishment as deterrence, if the offender persists with
the crime even after the ḥadd punishment, then no further
punishments may be warranted.134 Given Kāsānī’s view that
liwāṭ did not have a legal punishment, and to the extent the
limited scope of correction or rehabilitation, even based on
medieval Galenic models used by physicians like al-Rāzī, is
accepted, the case for decriminalization of same-sex
conduct may be supported.
According to the Universalist school traced back to Abu
Ḥanīfa, who stated that all human beings, irrespective of
their innate, inherited, or gained attributes, are inviolable
based on their humanity, law is required to punish crimes
that violate people’s rights or disrupt social order, whereas
sins that do not harm others or disrupt the social order are
not required to be punished.135 To the extent that
nonpenetrative acts including siḥāq do not disrupt the social
order or violate the rights of others, the case for
decriminalization of same-sex conduct may be supported.
The argument for decriminalization, that is absence of any
punishment for at least nonpenetrative same-sex conduct in
the household of a same-sex couple, does not automatically
translate to the acceptance of same-sex unions, but it does
constitute the necessary starting point for the case for such
unions.
So far, the decriminalization of same-sex acts was
addressed outside the confines of a legal relationship. The
rationales of rehabilitation and deterrence were addressed
and to the extent that nonpenetrative sexual acts including
siḥāq were not deemed to be qubḥ (intrinsically evil) and,
according to some jurists, deemed as minor sins which
could be washed through supererogatory works even if
repeatedly committed, the case for decriminalization of
same-sex acts was substantiated. Even the issue of anal sex
between gay couples is different from that of liwāṭ in that
the latter was viewed in the context of age- and power-
stratified asymmetrical relationships and in the context of a
possibly incurable disease—ʾubna. To the extent anal sex
between gay couples is markedly different from liwāṭ, the
issue of all sexual acts between couples has to be viewed
from a lens different than that of liwāṭ. Nonetheless, based
on verses 23:5–7, sexual acts outside a legal relationship
remain morally reprehensible even if decriminalized.
Given Kecia Ali’s observation, as noted in Section 5.3, that
the question of same-sex legal relationships has not been
countenanced by past jurists, and for whom the question
would have been anachronistically absurd, and given the
above analysis, especially in Section 5, that the past jurists
based their opinions in the overwhelming context of
pederasty and power-imbalanced relationships with male
slaves and foreign males treated as women, and based on
the medical knowledge of their times and in the absence of
developments in psychology, the issue of same-sex
relationships warrants a renewed approach.
While the case for same-sex unions will be considered later
in this paper, to the extent that same-sex legal relationships
have not been addressed by past jurists, who addressed
acts outside the scope of legal relationships and
notwithstanding verses 23:5–7, and given that the primary
sources, the Qur’an and Sunnah, have not explicitly ruled on
same-sex unions, same-sex acts within a civil legal
relationship may be viewed through the notion of ʻafw
(waiver). A Prophetic text mentions that halal is permitted,
ḥarām is prohibited, and matters on which the lawgiver is
silent are ʻafw, which indicates that the Sharīʿa does not
cover every issue.136 Alternatively, matters on which there
is revelational silence are ʻafw (not obligatory, which literally
means ignorable).137 According to Shāṭibī (d. 1388), the
category of ʻafw falls between ḥalāl (lawful) and ḥarām
(forbidden) and is also subject to further interpretation.138
Given the dichotomy between matters which are taʻabbudī
(not rationally understood) that include ritual cleanliness
and worship, and matters which are ʻādī (rationally
understood) that include marriage, Shāṭibī argues that the
term bidʻa (innovation) applies to the former and not the
latter,139 which provides scope to reasonably address the
issue of same-sex legal relationships, especially when old
customs no longer provide for legitimate human needs
given new developments in society.140
The silence of the primary sources and the absence of
verdicts from the jurists, who could not possibly have
addressed the issue of same-sex unions given the absence
of contemporary developments in psychology and social
changes that have led to equal rights, does not
automatically lead toward the permissibility of same-sex
legal relationships. However, such silence does indicate that
the traditional prohibition of same-sex acts outside a legal
relationship cannot be extended to gay and lesbian Muslims
within the confines of a legal relationship. While the
traditional rationales behind the proscription of liwāṭ will be
addressed in Section 5.5, based on the above analysis, the
case for decriminalization of at least nonpenetrative sexual
acts including siḥāq, especially within the confines of a legal
relationship, may be warranted.
5 .5 T H E R E P R E H E N S I BI L I T Y O F
L IW ā ṭ
Jurists predominately addressed same-sex relationships
through extramarital liwāṭ, which was viewed as an act over
and above the legitimate sexual need of a male that was to
be fulfilled through a legal contract with a spouse or
concubines. Liwāṭ is distinguished from homosexual anal
intercourse in that it was viewed through the lens of disease
or exploitation that involved the active partner with a
beardless youth, strangers, or mukhannathūn suffering from
ʾubna. On the other hand, anal intercourse between
consenting partners does not contain the elements of
exploitation or disease, and this weakens the case for
superimposing the framework of liwāṭ on to the intimate life
of gay couples.
While the analogy between liwāṭ and homosexual anal
intercourse is contestable, it is also reasonable to delve into
the reasoning employed by the jurists, especially of those
who opined that liwāṭ was more abominable than zinā. It is
important to underscore that, like contemporary Muslim
scholars, past jurists were influenced by their own sense of
right and wrong, natural and unnatural,141 and as such it is
important to consider the assumptions behind their rulings.
As such, some argued that the texts that condemn liwāṭ are
more severe in tone than those that condemn zinā and that
God destroyed a nation for the inviolability of the anus but
did not destroy any nation for the inviolability of the
vagina.142 However, this line of argument has been
accounted for by Ibn Ḥazm and other jurists, as noted in
Sections 5.1 and 5.2, in that they viewed these texts as
weak and did not base their opinions on the analogy of the
perpetrators of liwāṭ with the people of Lūṭ, thereby
substantiating the point that the people of Lūṭ were not
specifically destroyed for liwāṭ.
Other jurists appealed to nature and argued that in
contrast to zinā, liwāṭ was repulsive to people of sound
character and that the act was so abominable that it had
not occurred to humans prior to the people of Lūṭ.143
Furthermore, some argued that liwāṭ was perpetrated due to
animalistic desire, which meant sexual drive without
affection, on the part of the active partner and ʾubna or
effeminacy on the part of the passive partner.144 However,
apart from the fact that morality is not based on disgust,
this line of argument is countered by al-Rāzī and by the
historical record to the extent of its accuracy, as noted in
Section 2.3, where both indicate homosexual practices
prior to the people of Lūṭ. Likewise, it was noted in Section
2.3 that jurists like Ibn Ḥajar al-Haytamī (d. 1503) stated
that male animals do not engage in same-sex copulation
and as such this creates a tension between claims that the
active partner’s desires were animalistic and the argument
that the acts of same-sex penetration did not exist within
the animal kingdom. Finally, effeminacy is not necessarily
associated with liwāṭ as in Section 3.2 it was noted that the
mukhannathūn of early Medina are not associated with
homosexuality let alone liwāṭ. So far as ʾubna is
concerned, it is clear the jurists based their opinions on the
current medical knowledge of their times, based on which,
and in contrast, other jurists like the Shāfi‘i al-Ramlī (d.
1550) opined that kissing the object of one’s affection,
which included a youth, was a duty if in line with the then
medical theory that such frustration would contribute to the
lover’s death.145 A similar opinion is attributed to a certain
Walī al-Dīn al-‘Irāqī in the context of Ḥanbalī scholars.146
Even Ibn al-Qayyim (d. 1349/1350) has mentioned that
glances and kisses should be tolerated as a lesser evil given
the likely alternative of the greater evil of the lover’s
death.147
The moral reprehensibility and subsequent prohibition of
liwāṭ was also rationalized through other arguments chief
amongst which was the concern for procreation, which was
also evoked through an appeal to a Shī‘ī text that depicts Ali
(d. 661) opining that permission of ityān al-ghulām
(penetration of youth) would lead to men dispensing with
women and disrupting procreation.148 On the rationale
behind the prohibition of sodomy, the Shī‘ī Tafsīr compiled
by Ayatollah Sayyid Kamal Faghih Imani and others provides
the viewpoint of both Ja‘far al-Ṣādiq (d. 765) and ‘Ali al-
Riḍā’s (d. 818) that if men and women pursue sodomy,
procreation would be ceased.149 The Shī‘ī commentary of
the Qur’an, the Tafsīr nūr al-thaqalayn, also presents a text
attributed to the Prophet that states that God instills
feminine desires in a person who allows himself to be
sexually used. Likewise, the commentary presents Ja‘far al-
Ṣādiq’s opinion that some males have inverted wombs in
their anus and experience feminine desires and that a male
will be unable to rid himself of desiring male youths if he
persists in such conduct till he turns 40.150
The authenticity of the Shī‘ī texts is not clear especially
when apart from any transmission chain issues, it is noted
that these texts vacillate between describing liwāṭ as
penetrating male youth and having feminine desires to get
penetrated. Furthermore, the same tension is observed in
the narratives that depict Iyas ibn Abdullah ibn Yalail as a
passive partner in liwāṭ, who was allegedly executed by Abu
Bakr, as noted in Section 3, as given his role in the Ridda
wars of killing Muslims and given his nickname of Fujā’a
(Lion), he is depicted as an aggressive person. This also
raises concerns that since the words liwāṭ, Lūṭī, and other
allied terms did not have a precise meaning even during the
time of the tābiʿūn, as noted in Section 3.1, any texts
attributed to the Prophet and the Companions which
contained such terms may more likely have been later
imputations. Moreover, it may be instructive to emphasize
that Abu Ḥanīfa, as noted in Section 5.1, had stated that in
the absence of guidance from the Qur’an and Sunnah, he
may follow or abandon the opinion of a Companion. This is
especially so if the opinion was relatively obscure and it was
not clear that other Companions had heard of it to properly
critique it. As such, if there was no consensus among the
Companions, then a sole opinion does not necessarily count
as formulating the basis of a religious ruling.
So far as procreation is concerned, in the verse that alludes
to Adam and Eve, the scope of the verse is muʿayyan
(specific) as opposed to ʿāmm (general),151 which means
that the purport of the verse is not universal. Furthermore,
even if the universality of the verse is argued, general rules
are always open to exceptions in jurisprudence. It is also
important to emphasize that no Qur’anic verse or Hadith
indicates that procreation is the teleology of marriage152
and that the purpose of marriage, based on verse 30:21, is
rather tranquility, compassion, and mawadda (affection)
between spouses.153 Al-Ghāzālī (d. 1111) had stated that a
woman may resort to contraception even where the motive
was the preservation of her beauty, and as such the
purpose of sexual act was beyond procreation toward the
fulfillment of a need involving the man and woman’s right to
pleasure.154 Kecia Ali has also noted that in authoritative
premodern texts, the wife’s main duty was not child-rearing
or home-making but rather sexual availability,155 and that
many jurists defined the purpose of marriage not through
procreation but through sexual enjoyment.156 Infertility in
itself is not a stigma as a woman is not obliged either by the
Qur’an or Sunnah to bear children.157 Furthermore, the
Prophet himself did not have children with each of his wives
as he also married older women, including his first wife
Khadija (d. 619), several of whom were elderly or sterile.158
While the reasons mentioned so far do not seem to be
sufficiently strong to deem liwāṭ as morally reprehensible,
another rationale behind the prohibition and reprehensibility
of liwāṭ was the noxiousness associated with penetrating
the anus.159 Given that the Qur’anic verses do not specify
the act of the people of Lūṭ, exegetes like Qurṭubī and
Ṭabarī had to interpret the verse through substitution and
analogy, and Muslim jurists defined fi‘l qawm Lūṭ (acts of
the people of Lūṭ) as anal intercourse to the extent that
liwāṭ,160 and especially its allied terms like al-Lūṭīyya, have
been used for anal intercourse between a man and woman.
However, there seem to be three strands of Hadith texts on
ityān bi-l-dubur (penetrating the anus), presented in chapter
4, that depict prohibition, permission, or maintain a neutral
stand on the act.161 The texts that seem to prohibit the act,
depict the perpetrator of heterosexual anal sex as accursed,
rejecting the message of the Prophet, committing kufr
(apostasy) or in an eschatological manner indicate that such
a person would be bereft of God’s mercy on Judgment Day.
These texts have been deemed weak on the basis of the
transmission chains by authorities like Yaḥyā ibn Maʿīn (d.
233 AH/852), Abu Ḥātim (d. 890), Bukhārī (d. 870), Tirmidhī
(d. 892), and al-Nasāʾī (d. 915), among others, by deeming
the narrators as unknown, having a bad memory, prone to
error or generally evaluated negatively, by deeming the
texts as strange, weird, without consequence, or by
deeming the texts as mawqūf (interrupted).162 Apart from
transmission chain issues with these texts,163 they are
countered by other texts that either allow or maintain a
neutral stand on the act. Furthermore, while the text, also
weak on the basis of the transmission chain, which takes a
neutral stand by indicating that heterosexual anal
intercourse is filthy even if permitted,164 refers to
noxiousness, the texts that prohibit the act do not mention
noxiousness as a reason behind the reprehensibility or
prohibition of the act.
There have also been jurists, especially in the Shī‘ī schools,
who deemed liwāṭ as not impermissible between a man and
wife based on their interpretation of verses 2:222–223165
and who suggest avoiding the act as an obligatory
precaution without the wife’s consent166 to avoid any harm
to her. Likewise, amongst some Sunni jurists, the word anna
in verse 2:223 encompassed the meanings of both when
you will and where you will and has been understood to
legitimate heterosexual anal sex in the latter sense.167
Amongst some Muslims, verse 2:223 is not used to prohibit
anal sex between opposite-gender spouses according to
their reasoning that the primary purpose of a body part
does not have to be penetration for it to be enjoyed
sexually.168 This reasoning echoes that of Shāfiʿī in one of
his narratives where he reasons that intercourse between
thighs or belly folds was not prohibited despite the fact that
both were not qualified as tilth.169 Many Ḥanafī jurists stated
that claiming anal intercourse with a wife or female slave as
permitted did not necessitate kufr (unbelief).170 For
instance, Masʿūd Ibn ʿUmar at-Taftāzānī (d. 1389) asserted,
to declare liwāṭa (sodomy) on one’s wife as allowed is no
heresy. 171 Likewise, jurists like Ibn ʿĀbidīn (d. 1836), as
noted in Section 5.3, even stated that claiming the
permissibility of liwāṭ with male slaves also did not
necessitate kufr (unbelief),172 which may be viewed in light
of the observation, noted in Section 5, that several jurists
upheld such permissibility.
Given that noxiousness does not reasonably account for
the reprehensibility or prohibition of liwāṭ, another rationale
provided against that act was the waste of semen, a point
also substantiated by alluding to the word musrifūn
(transgressors) used to describe the people of Lūṭ in verse
7:81.173 However, Ibn Ḥazm mentions the opinions of
several Companions and tābiʿūn that not only indicated no
issues with spilling semen but also advised youth to practice
masturbation in order to avoid fornication.174 According to
the Lisān al-ʿArab, the word musrifūn comes from the root S-
R-F, which gives the impression of water that is poured on
earth without nourishing the plant or tree. The word is used
to describe people who spend beyond need or benefit or to
describe people who exert effort in the wrong place. As
such, the word alludes to people who go beyond their need,
including legitimate sexual need. Moreover, in terms of
exerting effort in the wrong place, in the context of verse
7:81 this may mean, as also noted in Section 2.5, pursuing
nonreceptive males for superfluous sexual conduct over and
above genuine sexual need. Also, by using the word
qawmun (nation) before musrifūn, the Qur’an is indicating
that the whole nation of Lūṭ is being condemned for their
actions as opposed to any specific homosexual segment
of the population.
While several jurists deemed liwāṭ as more morally
reprehensible than zinā, for instance, Abu Ya’ala al-Farra (d.
1066) opined that liwāṭ is worse than zinā as the vulva can
become lawful through a legal contract,175 there were
others who argued otherwise. Ibn Ḥazm referenced a Hadith
that lists zinā with one’s neighbor’s wife as one of the worst
crimes and since liwāṭ is not mentioned, he invalidated the
Mālikī position that liwāṭ is worse than zinā.176 Several
jurists opined that zinā was more morally reprehensible in
that it led to confusion of lineages, and that since people
are more zealously protective of females, in contrast to
males, they may venture out to kill the one who commits
fornication with them.177 As noted in Section 5.3, according
to a past scholar alluded to by Shāfiʿī, liwāṭ was deemed no
worse than zinā. Likewise, as noted in Section 5.2, jurists
raised concerns of children growing up without fathers in
the context of zinā. As such, based on such consequences,
zinā was deemed more morally reprehensible than liwāṭ,
and also, as noted in Section 5.2, because of the
observation that liwāṭ cases were fewer in number than
those of zinā. Likewise, while al-Nawawī (d. 1278) is quoted
as having stated that male youths are more worthy of
prohibition as access to vice in their case is easier,178
especially when Zaylaʿī (d. 1342–43) is also noted as
indicating that liwāṭ occurs as or more frequently than
zinā,179 Marghīnānī’s (d. 1197) ‘Hidaya’ indicates that Islam
allowing marriage to women and substantiating marriage
through prohibiting zinā constitute deterrence against zinā
and as such a crime with more deterrents in place is
deemed more vicious.180 Similarly, amongst contemporary
thinkers, referring to the gravity of zinā, Moiz Amjad asserts
that zinā is not a crime against an individual but the society
as it destabilizes the foundations upon which a stable
society is built.181
Many postclassical Ḥanafī jurists supported the position of
the Shafi‘i jurist al-Qazwīnī (d. 1095) that homosexuality,
as defined by the desire to penetrate the anus, was an ʿāha
(flaw) or qabīḥ (inherently evil) because the anus was not a
place for intercourse.182 However, on the basis of the
Mutazilite jurist al-Baṣrī (d. 1085), it is not clear how an act
can be deemed detestable if the elements of oppression,
falsehood, or purposelessness are absent from the act183
and on the basis of the scholar al-Murtaḍā (d. 1044), an act
cannot be deemed reprehensible if it does not contain
falsehood, oppression, and in the absence of information
from God or any obligation that is impossible to meet.184 As
such, the Ḥanafī jurist Ibn al-Walīd (d. 1119) argued that
liwāṭ, like wine, would be permissible in Paradise as the evil
consequences of the disruption of procreation and
noxiousness will be absent in Paradise. Likewise, scholars
like Zīrikzāde (d. 1601) argued for the allowance of liwāṭ in
Paradise based on verses 76:19 and 41:31 that allude to the
beardless youth of Paradise.185 Given this difference of
opinion, al-Ḥafnī (d. 1767), the rector of al-Azhar, stated
that liwāṭ in Paradise was held as permissible by some on
the basis of the absence of reproduction and excrement in
Paradise.186
Scholars like al-Alūsī (d. 1854) who argued against Ibn al-
Walīd’s position essentially referred to liwāṭ as being against
natural disposition by alluding to the pathology of being
penetrated,187 that is, ʾubna, as the issue was understood
given the medical knowledge and sociocultural values of al-
Alūsī’s times. Likewise, while jurists like al-Nābulsī (d. 1731)
stated that the desire for male youth was unnatural as
looking at women was more likely to give rise to lust and
hence ṭabīʿī (natural),188 others like Zaylaʿī (d. 1342–43) and
Sarakhsī (d. 1096) stated respectively that people of sound
reason coveted both the vagina and anus and that in the
absence of divine law, one could not differentiate between
the two.189 Regardless, it seems that the qubḥ (inherently
evil) aspect of liwāṭ, as upheld by some jurists, in contrast
to noxiousness and reproduction, which have been
addressed above, depends more so on ʾubna as the
contributing factor in explaining the flaw in the disposition
toward liwāṭ.
To the extent that none of the reasons presented so far—
severe tone of forbidding texts, repulsion, disruption of
procreation, noxiousness, and the waste of semen—serve as
reasonable explanations indicates that ʾubna seems to have
been a significant factor in accounting for the
reprehensibility of liwāṭ. It is perhaps ʾubna that formed the
underlying assumption when jurists opined that the
reprehensibility of liwāṭ is based on the notion of the male
and female respectively being the active and passive
partners in sex190 or that the male or the anus was not
created for the purpose of sexual penetration.191 Ibn
Qudāma (d. 1223) echoes this notion when he states that
the male is not a place of intercourse for another male even
if he were owned as a slave.192 Likewise, the Ottoman
Grand Mufti Efendi’s (d. 1574) specified that the people of
Lūṭ had intercourse with rijāl (males) instead of ghilmān
(youths),193 especially since sexual intercourse between
adult males was viewed as an anomaly connected to
violence/rape or more so to the ʾubna disease.194 The
characterization of ʾubna as a disease, based solely on
medical theories of the time, found its way into theology
and juristic rulings. Such a characterization may have led
jurists to look at the penetrator as someone taking
advantage of a diseased individual and may have also led
them to ignore the sexual desire and need of the
receiver/passive partner as illegitimate since such desires
were viewed to have originated due to disease.
As noted in Section 2.5, on the basis of Khaled el-
Rouayheb’s work, it becomes clear that the context of liwāṭ
generally involved violence apart from ʾubna and pederasty,
in that liwāṭ was perpetrated without not only love and
intimacy but also desire and pleasure. The scholar al-Alūsī
(d. 1854) noted that some people in his time used akhdhan
li-l-thaʾr (sodomy to seek revenge).195 As such, a Druze
chieftain in 1701, noted as a notorious womanizer, was
gang-raped and left naked by around 20 Turcoman
soldiers.196 Likewise, poetry contained themes of
penetration not out of desire but to subordinate and
humiliate the other; for instance, a deputy judge at a
Damascus court Ibrāhīm al-Ghāzālī (d. 1678) lampooned a
contemporary by versifying that he would sodomize the
contemporary, if not with a penis, due to disgust, then with
a piece of wood.197
Even discounting violence, the above seems to suggest
that the jurists worked with the notions of implicit consent
and nonconsent in sexual intercourse. The religious scholar
al-Rāghib (d. 1108–09) described a woman sodomizing an
effeminate man with a dildo as an ultimate sexual
irregularity,198 which suggests that it is the penetration of a
male whether with a penis or a dildo that is a concern,
especially given the medical model where a male is deemed
the penetrator and the female the penetrated, and that
switching these roles was deemed to seemingly reverse
such natural roles, which authorities unanimously
prohibited. 199 Likewise, according to al-Rāghib, siḥāq
(tribadism) was explained through the aversion to phallic
objects and penetration,200 which seems to suggest that
when jurists state that siḥāq went against the natural order,
they are essentially alluding to a medical model based on
the nonreceptive male and the receptive female. This view
may also be substantiated through the words dhakar and
unthā used to refer to males and females in the Qur’an, as
noted in Section 2.5, which contain meanings of
nonreceptive and receptive entities respectively, and as
such, given the notion that only a male suffering from the
ʾubna disease would submit to dishonor associated with
penetration may explain why sexual intercourse between
males was considered reprehensible.
It is clear from the above that the jurists addressed same-
sex encounters either in the context of pederasty or
between male adults within the scope of violence or disease
and dishonor associated with the act of getting penetrated,
which they deemed reprehensible, and as such the question
of same-sex legal relationships was irrelevant. As noted in
Section 5, they operated with the medical model of the
penetrator and the penetrated in the context of sexuality
where implicit consent was assumed to be absent on the
part of the passive partner who was either coerced or who
submitted for pecuniary or disease-related reasons. Even in
the context of mubādala (taking turns), a consensual
relationship cannot be assumed as, according to al-Rāghib,
pecuniary reasons underscored the decision of the partners
to allow penetration in lieu of penetration.201
Jurists opined in the context of the medical model that
relied on categories of the penetrated and penetratee,
which suggests that their understanding of consent in
sexual activity was heavily based on that model. As such,
one Mālikī text in the Mawāhib al-Jalīl that prescribes ritual
cleanliness after consensual or coerced sexual activity, and
which is present in variant forms,202 reads as follows:
The Sunnah has prescribed ghusl as obligatory when two circumcised parts
meet, that being when the glans is wholly inserted even when both do not
ejaculate, if they are both adult Muslims, in the vagina or the anus, while
sleeping, awake, consensual or coerced, two men or just one man.
5 .6 S A M E - S E X A C T S IN S H Ī‘Ī JU R IS P R U D E N C E
Shī‘ī texts are sidelined by the Sunnī tradition in part due to
difference in methodology. However, it may be helpful to
investigate how the Shī‘ī texts address same-sex conduct in
order to obtain a comparative view on the issue and to
determine any extra-scriptural considerations that informed
the rulings of the Shī‘ī authorities. A detailed analysis of the
transmission chains of the Shī‘ī texts is beyond the scope of
this work and as such only a critical review of the content of
these texts on male same-sex conduct is presented below
followed by the same for female same-sex conduct in a
separate section.
Shī‘ī narratives on same-sex conduct extensively address
anal intercourse between males as well as nonpenetrative
sexual conduct. A narrative traced back to Ja‘far al-Ṣādiq
indicates that the Prophet stated that God invests a person
with female lust if he allows himself to be sexually
molested.218 A variant text indicates that the opinion
belonged to ‘Ali instead of the Prophet. The content seems
to suggest that the sexual act in question does not contain
the element of reciprocity but is inflicted on another
individual.
Texts attributed to ‘Ali (d. 661) indicate that the
punishment of the Lūṭī—perpetrator of homosexual anal
intercourse—is that of fornication, that is, he is stoned if he
were muḥṣan—married and/or had access to female
concubines, and given 100 lashes otherwise.219 However,
this opinion of ‘Ali contrasts with his other opinions in which
he is alleged to have ordered the punishment of burning.
Another text attributed to ‘Ali indicates that the Lūṭī is
punished even in the absence of penetration when he
mounts another man and that if he penetrates the anus of
another man, then he commits disbelief by doing so.220 In
the context of a text attributed to ‘Ali, the commentator ‘Ali
Akbar Ghefari opined that the act is equivalent to kufr
(disbelief) in terms of its punishment in the Hereafter, and is
deemed equivalent to blood shedding.221
Contemporary Muslim leader Miqdaad Versi222 references a
text attributed to ‘Ali (d. 661) that indicates his verdict,
based on a Prophetic directive, on a man who confesses four
times to committing liwāṭ that he had a choice between
stroke on neck by sword, hanging by a mountain with hands
and legs tied, and being burnt by fire. This text, which is
found in the works of al-‘Āmilī (d. 1693), is deemed ṣaḥīḥ
(authoritative) in Shī‘ī jurisprudence. However, as noted in
Sections 3.3.1 and 3.3.3, and according to contemporary
Sunnī scholar Sheikh Mohamed el-Moctar el-Shinqiti,223 the
texts attributed to ‘Ali on the punishment of Lūṭīs are
deemed extremely weak. The punishments attributed to ‘Ali,
especially those on burning, contradict other Prophetic texts
that forbid punishment with fire. Moreover, some scholars
are of the opinion that even if ‘Ali burnt the zanādiqa
(criminal dissidents) to death, such a directive would be
contrary to the Prophetic directives and would amount to
criticism on ‘Ali’s decision.224 Moreover, Hashim Kamali
references past jurists who held that the fatwā (religious
edict) of a Companion did not constitute a binding proof in
Islamic jurisprudence and also mentions Shāfiʿī (d. 820),
who stated that scholars have sometimes abandoned the
fatwā of a Companion.225
Another text noted by al-‘Āmilī alludes to Abu Abdullah
mentioning that while the active partner in liwāṭ is flogged if
he is unmarried, the passive partner should be killed
irrespective of his marital status.226 According to Versi, this
suggests that if the passive partner is to be executed then
the act was construed as having taken place between two
consensual partners. Such a view may be substantiated on
the basis of the fact that a person, upon whom the act is
forcibly perpetrated, is not subjected to punishment based
on the Hadith that Allah has forgiven acts based on
forgetfulness, mistakes, and compulsion.227
However, in Islamic jurisprudence, exploitation has been
viewed distinctly from coercion. The consent of the passive
partner cannot be assumed given that the maʾbūn was
viewed as suffering from ʾubna and in fact if anything, the
death verdict, as also noted in Ibn al-Qayyim’s opinion, was
perhaps to relieve the passive partner from an incurable
disease that was associated with humiliation and one that
could not be cured except by disobeying God, that is,
through repeated homosexual anal intercourse. Indeed,
contemporary scholars reproduce the past texts which
indicate that the receptive partner person in his youth only
grows to be in the worst condition in an older age.228
Moreover, as noted in Section 5.5, the past jurists did not
understand consent and duress as is understood in
contemporary times and as such, for them, exploitation of
the passive partner did not mitigate the associated
punishment.
Confirming the content of the texts attributed to ‘Ali,
narratives traced back to Ja‘far al-Ṣādiq reflect the opinion
that the active partner is to be struck with a sword if he
penetrates the male anus and is lashed if he does not.229
Likewise, texts traced back to Abu Ja‘far also known as
Shaykh Ṭūsī (d. 1067) indicate that the punishment of the
active and passive partners is that of fornication in that the
iḥṣān status would matter for both partners.230 Another text
attributed to Ja‘far al-Ṣādiq indicates that the active partner
is to be punished like a fornicator—lashed if he were
unmarried and stoned if he were muḥṣan. However, the
same text indicates that the passive partner is punished
with death irrespective of his iḥṣān status.231 This difference
of opinion indicates that as in Sunnī jurisprudence, there are
divergent opinions in Shī‘ī jurisprudence on the issue and
that given contradictory opinions there is a possible
weakness in the authenticity of these texts.
Unlike Sunnī jurisprudence, where liwāṭ does not include
acts other than penetration, in Shī‘ī jurisprudence, according
to Muqaddas Ardabili (d. 1585) and Shahid Thani (d. 1558),
in the technical context for punishment, as opposed to the
lexical meaning, liwāṭ includes acts other than
penetration. 232 Some texts indicate that Ja‘far al-Ṣādiq
opined that pressing the penis between thighs constituted
sodomy, whose perpetrator commits disbelief, and that anal
intercourse with males is a greater sin than fornication for a
whole nation was destroyed for the former act but not a
single person was destroyed for the latter sin.233 The ‘Ali
narrative, noted earlier, where lashing is prescribed as a
punishment for nonpenetrative acts is corroborated by the
texts of al-Mufīd (d. 1022) who specified 100 lashes for both
the fā‘il and the maf‘ūl bih for tafkhīdh (intercrural
intercourse)234 and of al-Hakim (d. 2002) who also
supported 100 lashes for tafkhīdh,235 a punishment that is
replaced by death if the perpetrators are caught for a third
time.236
The texts that define intercrural intercourse between
thighs as sodomy contradict the Sunnī classical definition of
liwāṭ as specifically homosexual anal intercourse. The texts
that indicate that God did not destroy any one for
fornication but destroyed a whole nation for sodomy were
opposed by jurists like Ibn Ḥazm, as noted in earlier in this
chapter. Moreover, it also seems that the opinion of Ja‘far al-
Ṣādiq on the issue was also based on the knowledge of his
times, as he is also reported to have suggested a cure that a
person suffering from ʾubna—the disease of requiring
receptive homosexual anal intercourse—sit on a chopped off
hump of a camel.237
A text attributed to ‘Ali Reza (d. 818) indicates his opinion
that adultery and sodomy are the causes of 72 ills in this life
and the Hereafter.238 Likewise, an eschatological text
attributed to Abu al-Aswad (d. 688) indicates that ‘Ali opined
that when men satisfy themselves with men and women
with women, earthquakes will occur, faces will become
transformed, and stones will rain down from the skies.239
Other Hadith texts traced through Ibn ʿUmar (d. 693),
quoted by Sunnīs, indicate that the Prophet warned about
plagues and diseases that would arise in societies where
public lewdness and its promotion become widespread.240
Whereas some quote the Hadith text using the word
lewdness, others replace it with adultery and
homosexuality to associate AIDS with queers,241 which
indicates the use of interpretive license on the part of the
translators. Furthermore, the authenticity of the Hadith
traced back to Ibn ʿUmar has been questioned as the next
person in the transmission chain ʿAṭā was not known to
have met Ibn ʿUmar enough to narrate a Hadith from him.
Likewise, other narrators in the transmission chain have
been critiqued.242 Regardless, the texts are underscoring
the issue with fāḥisha—lewdness or illegal sexual acts as
opposed to monogamous opposite or same-sex
relationships.
It also seems, in contrast to Sunnī jurists like Ibn Ḥazm (d.
1064), Shī‘ī jurists draw injunctions from the punishment
meted out to the people of Lūṭ in the Qur’an for same-sex
conduct. Alluding to verse 11:83 in the context of the people
of Lūṭ, which states that punishment for the unjust has been
marked by God, Abu al-Ḥusayn Dastghaib Shīrāzī (d. 1981)
indicated that since the Qur’an described three kinds of
punishment for the people of Lūṭ—terrible scream, shower
of stones, and turning the earth upside down—any of these
may be inflicted on those who commit similar acts.243 In the
context of verses 7:80–81, which depict the people of Lūṭ as
qawmun musrifūn—an extravagant people, he further
opined that the indecency in the verse referred to men
squandering sperms instead of directing them toward
wombs for procreation.244 However, this opinion seemingly
contrasts with the widely held Shī‘ī opinion on the qualified
permissibility of heterosexual anal intercourse, where
procreation is not involved.
While the text attributed to Abu al-Ḥasan depicts both
partners voluntarily having intercrural intercourse, it
seems that the text may have been improperly translated. A
reason behind this contention is that the act of liwāṭ was
inflicted on someone, based at least on the text attributed
to Ja‘far al-Ṣādiq that mentions allowing oneself to be
sexually molested, and as such the act was associated with
humiliation. Another reason behind this contention is that
several Shī‘ī texts specifically address liwāṭ in the context of
youth or male slaves.
An eschatological narrative attributed to the Prophet
indicates that a person who commits sodomy with a boy
would be cursed by God and acquire an impurity that not
even all the waters of the world would be able to remove.
The text distinguishes this act from the one in which a
person allows himself to be mounted by another male, a sin
that earns him the lowest pits of Hell for eternity.245 The
content of this narrative indicates that liwāṭ is committed
with a boy or a person who allows himself to be used, and in
both instances, it reflects a sense of exploitation of the boy
or the passive partner. However, the text reflects severity of
the eternal punishment of the passive partner, which
contradicts other texts that indicate that anyone who
believed in God would eventually be saved.
A text from Ja‘far al-Ṣādiq indicates that ‘Ali stated that the
Prophet prescribed three punishments for sodomy with a
boy that include beheading, being burnt alive, or being
thrown from a cliff.246 However, this text not only
contradicts other texts where the Prophet prohibited killing
by fire, but also the fact that in the presence of such a text,
the Companions would not have differed on the punishment
for liwāṭ. Other texts from Ja‘far al-Ṣādiq attributed to ‘Ali
indicate that a person who sodomized his wife’s son from
another husband and in another instance a man who came
onto a slave boy were both punished by the sword.247 In
contrast, in another text, Abu al-Ḥasan opined that the
curse of God is upon the one who plays with a boy in his
thighs without mentioning any punishment, which, as noted
earlier, he reserved for two men having intercourse in the
thighs.248 This contradiction in text raises concerns about
the authenticity of these texts. Regardless, the ruling on
liwāṭ comes in the context of exploitation, that is, the act is
committed on a boy, which according to Dastghaib Shīrāzī
makes the mother, sister, or daughter of the boy forbidden
to the perpetrator of the act.249 A similar text exists in Ṣaḥīḥ
Bukhārī that indicates that if a man commits liwāṭ with a
youth, then the youth’s mother becomes forbidden to the
man.250 Such texts indicate at the very least the absence of
capital punishment for liwāṭ as the issue of marriage could
not arise for a dead person and as such these texts cast
further doubt on those texts and opinions that call for
capital punishment.
An eschatological text attributed to ‘Ali indicates that the
Prophet stated that the person who dies without repenting
for committing the act of the people of Lūṭ would be sucked
in toward the dead of the people of Lūṭ and will be counted
from amongst them. It deserves to be noted that the
context of this text revolves around the case of a slave who
killed his master after he had forcibly committed sodomy
with him.251 Notwithstanding authenticity issues, this text
confirms that the act of liwāṭ was construed as inflicting
humiliation on the penetrated partner to the extent that the
slave took recourse to killing his master.
Apart from the texts that indicate punishment for liwāṭ with
slaves and boys, there exist other texts that caution against
glancing at boys and which prescribe punishment on
sensually kissing boys. A Hadith cautions against lustfully
looking at beardless slaves and youth of rich people,
indicating that greater mischief is possible by glancing at
beardless youth than by glancing at veiled girls.252 The
greater mischief alluded to in the text seems to be echoed
in Sunnī jurist al-Nawawī’s (d. 1278) opinion that male
youths are more worthy of prohibition as access to vice in
their case is easier.253 A text attributed to Najīb as-Sirrī
indicates that the pious elders would dislike looking at
handsome boys.254 However, responding to such opinions,
the scholar al-Nābulsī (d. 1731) vehemently stated, “I wash
my hands of this matter since these cows cannot fathom my
reasoning. . . . Does he not see that he can occasionally look
at even his wife or slave-girl without lust? And, besides, how
can he read other men’s hidden thoughts?”255
In one eschatological Hadith the Prophet is reported to
have stated that the man who sensually kisses a youth
would be punished for a thousand years in Hell whereas in
another eschatological Hadith, mentioned by Ja‘far al-Ṣādiq,
the Prophet is reported to have stated that God would tie a
rein of fire on his mouth.256 Likewise, ‘Ali Reza opined that
the angels of earth, sky, mercy, and wrath all curse the man
who sensually kisses a youth and that God decrees a place
for such a person in Hell.257 The text from ‘Ali Reza seems
similar to a text quoted by some Sunnī Muslims, according
to which the Prophet is reported to have stated that God,
angels, and people curse a man who sensually touches a
youth.258 Based on such texts, Shī‘ī jurists deduced that
lustfully kissing ghulāms (male slaves, usually youth) is a
kabīra (major sin).259
However, Ibn al-Qayyim’s (d. 1349/1350) statement that
the danger of pederasty was absent during the Prophet’s
time260 weakens the authenticity of the Hadith narratives
that report liwāṭ in the context of youth and slaves.
Likewise, the Syrian belletrist Aḥmad al-Barbīr (d. 1817),
based on the absence of love poetry for boys, and the
Egyptian scholar Marʿī ibn Yūsuf al-Karmī (d. 1624) both
opined that Arabs in pre-Islamic and Islamic times were not
inclined toward pederasty.261
Regardless, based on the available texts, apart from extra-
scriptural considerations, Shī‘ī jurists prescribed
punishments for sensually kissing youth. A text attributed to
Ja‘far al-Ṣādiq indicates his opinion that the man should be
struck with 100 lashes.262 In contrast, Dastghaib Shīrāzī
opined that the wrong doer could be punished from 30 to 90
lashes.263 It seems that where Ja‘far al-Ṣādiq’s opinion rests
on treating the matter as of requiring a Ḥadd—scripturally
sanctioned punishment—Dastghaib Shīrāzī’s opinion seems
to suggest that the matter be treated as one requiring the
ta’zir (discretionary punishment) that in common practice264
consisted of no more than 80 lashes.
A similar difference of opinion can be noted from texts that
prescribe the punishment for two men found sleeping under
a single piece of clothing. A text attributed to Abu al-Ḥasan
prescribes 100 lashes, whereas a text attributed to Ja‘far al-
Ṣādiq indicates that ‘Ali prescribed smearing a man
discovered in the bed of another male with excrement.265
The contradiction in punishing the action of sleeping under
a single piece of clothing through Ḥadd or ta’zir raises
questions on the authenticity of these texts. It is also not
clear whether ta’zir punishments, which usually comprised
of beatings, detention, and fines, included smearing with
excrement.
In the context of such same-sex conduct, Dastghaib Shīrāzī
quoted a Hadith in which the Prophet is reported to have
suggested separating the beds of children over 10 years of
age, be they two brothers, two sisters, or a brother and
sister.266 However, interpretive license is used in
juxtaposing this text in the context of same-sex conduct,
just as some conservative Muslims attempt to elicit the
prohibition of same-sex unions on the basis of Hadith,
reported by Abu Dawūd and Tirmidhī, which prohibits men
and women from gazing at the ʿawra—nakedness of other
men and women—and also forbids them from sleeping
under the same cover.267 The texts seem to emphasize the
teachings on modesty and it would be a stretch to derive a
ruling on marriage or same-sex legal contract on the basis
of these texts.
In the context of verse 11:82 that describes the raining of
stones on the people of Lūṭ, a text attributed to Ja‘far al-
Ṣādiq indicates his opinion that a person who dies deeming
liwāṭ to be permissible is hit with the stones that fell on the
people of Lūṭ.268 While a variant text adds committing liwāṭ
to believing in the permissibility of the act, referencing both
texts, Dastghaib Shīrāzī opined that anyone who deems
sodomy to be legal is a kāfir (unbeliever)—because deeming
the act illegal is a requirement of faith.269 Dastghaib
Shīrāzī’s opinion seems to have precedence in the opinion of
Ja‘far al-Ṣādiq who stated that the prohibition of liwāṭ is one
of the necessary factors of religion and in the opinion of al-
Ḥillī who classified liwāṭ as one of the gravest sins.270
Ja‘far al-Ṣādiq’s opinion that the prohibition of liwāṭ is one
of the necessary factors of religion opinion seems to be
similar to that of conservative Sunnī Muslims when they
state that the prohibition of same-sex conduct is based on
the legal maxim ma‘lūm min al-dīn bi-l-ḍarūra—religious
doctrines known by necessity as part of religious teachings.
However, the legal maxim does not mean that the ruling in
the context of such a matter is certain but that one does not
need specialized training to understand God’s ruling on the
matter.271 Furthermore, jurists like Ibn ʿĀbidīn (d. 1836)
opined that claiming the permissibility of liwāṭ with male
slaves did not necessitate kufr (unbelief).272 Indeed, the
Ḥanafī jurist al-Kawākibī (d. 1685) clearly stated that based
on the phrase what their right hand possesses in verses
23:6 and 70:30, which generally alluded to female
concubines, there were those who deemed liwāṭ with male
slaves permissible.273 Most Sunnī jurists did not deem falling
in love with a youth to be a sin and, based on the principle
that one should not prohibit what God has made licit,
resisted the efforts of zealous jurists to prohibit
preliminaries of liwāṭ and allowed the composition of
pederastic love poetry.274
5 .6 .1 F e m ale S am e - S e x C on d u c t
As in Sunnī jurisprudence, the Shī‘ī authorities distinguish
between liwāṭ and nonpenetrative sexual acts and prescribe
capital punishment for the former, especially for those
classified as muḥṣans. However, in contrast to Sunnī
authorities, Shī‘ī authorities seem to have taken a more rigid
stance on nonpenetrative sexual acts, which also reflects
their harsher position on female same-sex conduct
predominately defined as siḥāq (tribadism).
As in the case of liwāṭ, Shī‘ī authorities differ on the
punishment for siḥāq. Ja‘far al-Ṣādiq opined that the
punishment for siḥāq should be that for fornication, whereas
Shaykh Ṭūsī mentioned the punishment of lashing.275 A
Hadith reported by al-Faḍl al-Ṭabrisī (d. 1153) equates siḥāq
with liwāṭ and prescribes the death penalty for both.276
Likewise, a text from al-‘Āmilī (d. 1693) mentions that Abu
Abdullah was approached by a group of women, who asked
him about siḥāq and he responded that the punishment is
the same as that for fornication and that God mentioned
about it in the Qur’an through the people of Rass.277
However, as noted in Section 5.3.2, while the people of Rass
are discussed in verses 25:38–39 and 50:12–14, the Qur’an
does not connect them with lesbianism and neither do
Zamakhsharī (d. 1143),278 Ibn Kathīr (d. 1373), or Ṭabarī (d.
923) in their exegetical commentaries and as such the
connection between the people of Rass and siḥāq does not
seem to be justified in Sunnī jurisprudence. Moreover, as
noted earlier, in Sunnī jurisprudence, Ibn Ḥazm (d. 1064)
refuted the report that equated liwāṭ and siḥāq with zinā as
one of the narrators is deemed as a weak transmitter and
unconnected with other narrators in the transmission
chain.279 He also refuted Shihāb Zuhrī’s (d. 741/2) position,
who prescribed hundred lashes for siḥāq, a penalty deduced
from the equivalence of liwāṭ and siḥāq with the gravest and
least severe forms of zinā, respectively.280
The difference of opinion on the punishment of siḥāq
among Shī‘ī authorities is also observed in their opinions on
the punishment of two women found under a single quilt.
Ja‘far al-Ṣādiq reported a narrative about ‘Ali (d. 661) where
he ordered the burning of two women.281 However, Ja‘far al-
Ṣādiq also opined that after lashing for two instances of
being under a single quilt, the two women must be killed if
found for a third time, though, elsewhere he prescribed the
killing if they were found under the quilt for the fourth
time.282 Another narrative mentioned by Shī‘ī authorities
prescribes 100 lashes. It is interesting to note that where
there exist reports of burning two women for being found
under a single quilt, two men, as noted earlier, were either
prescribed lashing or be smeared with excrement.
Regardless, it seems that various opinions have been
attributed to Ja‘far al-Ṣādiq on the issue of female same-sex
conduct, which necessitates an inquiry into the authenticity
of these texts.
Shī‘ī authorities also mentioned rulings on a case scenario
where a woman, after having sex with her husband,
proceeds to have siḥāq with a virgin girl, impregnating her
through the act. A narrative attributed to Ḥasan (d. 670)
indicates his opinion that the woman is stoned and the
virgin girl is lashed.283 A similar opinion is attributed to
Ja‘far al-Ṣādiq in various texts. However, in other texts,
which address the issue of a woman seizing and deflowering
a virgin girl by hand, Ḥasan prescribed the Ḥadd
punishment and Ja‘far al-Ṣādiq prescribed 80 lashes
respectively for the woman.284 The difference between the
punishment for siḥāq and deflowering by hand for a woman
suggests that some Shī‘ī authorities viewed siḥāq separately
from other female same-sex acts. Moreover, it seems that
not all nonpenetrative sexual acts are viewed in a similar
fashion, in that intercrural sex between males merits the
death penalty, whereas deflowering by hand between
females warrants 80 lashes. To the extent that Sunnī
authorities do not view one nonpenetrative sexual act
different from another nonpenetrative act and to the extent
the same holds true for Shī‘ī authorities, the authenticity of
these texts has to be questioned.
It also deserves to be noted that just as the rulings for
same-sex conduct between males were made in the context
of acts between an adult and youth or male slaves, likewise,
it seems that the rulings on same-sex acts between females
were made in the context of an adult woman exploiting a
young girl or slave by seizing and taking her virginity.
Furthermore, given that one of the text indicates a married
woman deflowering a girl after she had sex with her
husband, same-sex conduct between females was viewed
as a superfluous act outside the folds of a legal contract.
This observation between females seems to be consistent
with the assumption upheld in the context of same-sex
conduct between males in that the active partner’s
attraction toward male youth was not viewed as a sole
desire toward them but the same that was directed toward
women and therefore could be sated with lawful female
partners.285
In conclusion, like their Sunnī counterparts, the varying and
contradictory opinions on same-sex conduct among Shī‘ī
authorities necessitate a critical inspection of the
authenticity of the Shī‘ī texts. The Shī‘ī texts also confirm
that religious rulings in the context of same-sex conduct for
both males and females were usually made in the context of
exploitation of male youth, slaves, and young girls. To the
extent that rulings were made in the context of exploitation
of youth and slaves, or in the context of males classified as
suffering from ʾubna, a renewed approach to same-sex
relationships between equal partners, which accounts for
the contemporary understanding of exclusive same-sex
constitutional orientations, is warranted.
N O T E S
1. Lagrange, The Obscenity of the Vizier, 184.
2. Ali, Sexual Ethics and Islam, 88.
3. El-Rouayheb, Before Homosexuality, 65.
4. Ibid, 114.
5. Ibid, 71.
6. Ali, Sexual Ethics and Islam, 84.
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9. Ze’evi, Producing Desire, 38.
10. Rosenthal, Ar-Razi on the Hidden Illness, 56–57.
11. El-Rouayheb, Before Homosexuality, 19.
12. Ibid, 20.
13. Amer, Medieval Arab lesbians and Lesbian-Like Women, 216–17.
14. Ze’evi, Producing Desire, 22.
15. Ibid, 32.
16. Ibid, 33.
17. El-Rouayheb, Review of Ze’evi, 1.
18. Ibn Jumuʿa, ʿAbd ʿAli. Tafsīr Nūr al-Thaqalayn (Qom: Intisharat Ismailiyan,
1415 AH/1994), 2: 375–407.
19. Ibn Kathīr, The History of Ibn Kathir—Bidaya and Nihaya, Volume 9, 185.
20. Shalakany, Comparative Law as Archeology, 26.
21. Ze’evi, Producing Desire, 88.
22. El-Rouayheb, Before Homosexuality, 17.
23. Ali, Marriage and Slavery in Early Islam, 11.
24. Ābādī, ʿAwn al-Maʿbūd fī Sharḥ Sunan Abu Dawūd, Volume 6, 141.
25. Ali, Marriage and Slavery in Early Islam, 182.
26. Ibid.
27. Sara Omar, From Semantics to Normative Law: Perceptions of Liwāṭ
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Islamic Law and Society 19 (2012): 251.
28. Arno Schmitt, LIWĀṬ im Fiqh Mannliche Homosexualitat, Journal of Arabic
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31. Hallaq, A History of Islamic Legal Theories, 246–51.
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33. Ibid.
34. Al-San‘ani, Muṣannaf Abul Razzāq, Volume 7, 429.
35. Kamali, Principles of Islamic Jurisprudence, 40.
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51. Ibid, 320.
52. Ibid, 194, 198.
53. Al-Bayhaqī, Sunan al-Bayhaqī al-Kubrā , Volume 8, 233.
54. Adang, Ibn Ḥazm on Homosexuality, 21.
55. Ibid, 24.
56. Rowson, Homosexuality in Islamic law.
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61. Hasan, Unnatural Offences: The Controversy.
62. Kamali, Principles of Islamic Jurisprudence, 265.
63. Lange, Justice, Punishment and the Medieval Muslim Imagination, 181.
64. Shalakany, Comparative Law as Archeology, 23.
65. Lange, Justice, Punishment and the Medieval Muslim Imagination, 183.
66. Ibid, 208.
67. Al-Rāzī, Tafsīr al-Rāzī of 24:2.
68. Lange, Justice, Punishment and the Medieval Muslim Imagination, 208.
69. Shalakany, Comparative Law as Archeology, 23–24.
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71. Lange, Justice, Punishment and the Medieval Muslim Imagination, 210.
72. Adang, Ibn Ḥazm on Homosexuality, 27.
73. Al-Rāzī, Tafsīr al-Rāzī of 24:2.
74. Lange, Justice, Punishment and the Medieval Muslim Imagination, 210.
75. Ibid, 212.
76. Shalakany, Comparative Law as Archeology, 25.
77. Ibn ʿAbd al-Barr, Istidhkār, Volume 7, 493.
78. Lange, Justice, Punishment and the Medieval Muslim Imagination, 202.
79. Ibid, 205.
80. El-Rouayheb, Before Homosexuality, 119.
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82. Adang, Ibn Ḥazm on Homosexuality, 26.
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Golden Encyclopedia of the Prophetic Golden Hadeeth and its Sciences], 2nd
edition, (London: Turath Publishing), CD-ROM. Translation by the authors.
84. Adang, Ibn Ḥazm on Homosexuality, 28.
85. Ibn Ḥazm, Al-Muḥallā bi-l-Āthār: kitāb mā lā ḥadd fīh: The question of the
doing of the people of Lut.
86. Al-Mizzī, Tahdhīb al-Kamāl, Volume 20, 278–82; Volume 31, 508–10.
87. Ibn Ḥazm, Al-Muḥallā bi-l-Āthār: kitāb mā lā ḥadd fīh: The question of the
doing of the people of Lut.
88. Adang, Ibn Ḥazm on Homosexuality, 14.
89. El-Rouayheb, Before Homosexuality, 124.
90. Ali, Sexual Ethics and Islam, 77.
91. George F. Hourani, Islamic Rationalism: The Ethics of Abd Al Jabbar,
(Oxford: Clarendon Press, 1971), 29.
92. Ibid, 69–70.
93. Ibid, 104.
94. A. Kevin Reinhart, Before Revelation: The Boundaries of Muslim Moral
Thought, (Albany: State University of New York Press, 1995), 41.
95. Ibid, 42.
96. Adang, Ibn Ḥazm on Homosexuality, 28.
97. Ibn Ḥazm, Ṭawq al-Ḥamāma fī al-ulfa wa-l-Allāf (Damascus: Maktaba
ʿArafa. 1349 A.H./1929-30 C.E.), 138–39.
98. Ibn Ḥazm, Al-Muḥallā bi-l-Āthār: kitāb mā lā ḥadd fīh: The question of the
doing of the people of Lut, in [ اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe
Golden Encyclopedia of the Prophetic Golden Hadeeth and its Sciences], 2nd
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99. Ali, Sexual Ethics and Islam, 78.
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103. Ibid, 205.
104. Ibid, 207.
105. Ibid, 214.
106. Ibid, 102–103.
107. El-Rouayheb, Before Homosexuality, 119.
108. We are grateful to an anonymous critic for this point.
109. El-Rouayheb, (2005), Before Homosexuality, 119.
110. Elyse Semerdjian, Off the Straight Path, Illicit Sex, Law and Community in
Ottoman Aleppo, (Syracuse: Syracuse University Press, 2008), 47.
111. Ibid, 41, 54.
112. Isik, Uqubat—Penal Code.
113. Abdelwahab Bouhdiba, Sexuality in Islam, (London: Routledge and Kegan
Paul, 1985), 31.
114. El-Rouayheb, Before Homosexuality, 137.
115. Ibid, 138.
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119. Ibn Adam, Nikaah, Zina, Fornication: it is overlooked by Allah?
120. Bell, Love Theory in later Hanbalite Islam, 128.
121. El-Rouayheb, Before Homosexuality, 138.
122. Habib, Arabo-Islamic Texts on Female Homosexuality, 104.
123. Ibid, 88.
124. Email correspondence with Miqdaad Versi.
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129. Abnormal Relationship Between Women, Islam QA.
130. Habib, Arabo-Islamic Texts on Female Homosexuality, 83.
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134. Hisham M. Ramadan, Understanding Islamic Law: From Classical to
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137. Ibid, 216.
138. Ibid, 217.
139. Ibid, 222.
140. Ibid, 223.
141. Ali, Sexual Ethics and Islam, xxvi.
142. El-Rouayheb, Before Homosexuality, 127.
143. Ibid, 127.
144. Ibid, 127–128.
145. Ibid, 139.
146. Bell, Love Theory in later Hanbalite Islam, 196–197.
147. Ibid, 129.
148. El-Rouayheb, Before Homosexuality in the Arab-Islamic World, 129.
149. Imani et al., An Enlightening Commentary, Parts 7 & 8, 306.
150. Ibn Jumuʿa, ʿAbd ʿAli. Tafsīr Nūr al-Thaqalayn (Qom: Intisharat Ismailiyan,
1415 AH/1994), 2: 375–407.
151. Hassan El-Menyawi, Same-sex marriage in Islamic law, Wake Forest
Journal of Law & Policy 2, no. 2 (2012): 468.
152. Ibid, 483.
153. Ibid, 470.
154. Ramadan, Radical Reform, 169.
155. Ali, Sexual Ethics and Islam, xv.
156. Kecia Ali, Progressive Muslims and Islamic Jurisprudence: The Necessity
for Critical Engagement with Marriage and Divorce Laws, in Progressive
Muslims, ed. Omid Safi, (Oxford: Oneworld Publications, 2003), 179.
157. Munawar Aḥmad Anees, Islam and Biological Futures: Ethics, Gender, and
Technology, (London: Mansell, 1989), 102.
158. El-Menyawi, Same-sex marriage in Islamic law, 484–85.
159. El-Rouayheb, Before Homosexuality, 131.
160. Ibid, 125. Talkhīṣ al-Ḥabīr.
161. Ibn Ḥajar al-ʿAsqalānī, Talkhīṣ al-Ḥabīr, Book of Nikāḥ, in اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ
[ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe Golden Encyclopedia of the Prophetic Golden
Hadeeth and its Sciences], 2nd edition, (London: Turath Publishing), CD-ROM.
162. Ibid, Chapter that addresses anal intercourse.
163. Moiz Amjad, Narratives on the Prohibition of anal sex, Understanding
Islam Q&A, accessed May 11, 2016, http://www.understanding-
islam.com/narratives-on-the-prohibition-of-anal-sex/.
164. See Talkhīṣ al-Ḥabīr by Ibn Ḥajar.
165. Ṭabāṭabāʾī, Tafsīr al-Mīzān, commentary on verses 2:222–223.
166. What is the Islamic law regarding anal intercourse? Is there any objection
in it? Islam Quest, Question Archive, accessed January 26, 2016,
http://www.islamquest.net/en/archive/question/fa1075.
167. Shalakany, Comparative Law as Archeology, 20–21.
168. Qur’anic Path, Does the Qur’an Prohibit Anal Sex between Husband &
Wife? , accessed May 11, 2016,
http://www.quranicpath.com/misconceptions/anal_sex.html.
169. Ṭabāṭabāʾī, Tafsīr al-Mīzān, commentary on verses 2:222–223.
170. El-Rouayheb, Before Homosexuality, 124.
171. Schmitt and Sofer, Sexuality and Eroticism, 14.
172. El-Rouayheb, Before Homosexuality, 124.
173. Ibid, 129.
174. Amjad, Opinions Expressed by Muslims regarding masturbation,
Understanding Islam Q&A, accessed May 11, 2016, http://www.understanding-
islam.com/opinions-expressed-by-muslims-regarding-masturbation/.
175. Juferi, The Consensus on Homosexuality.
176. Adang, Ibn Ḥazm on Homosexuality, 24.
177. El-Rouayheb, Before Homosexuality, 128.
178. Ibid, 114.
179. Lange, Justice, Punishment and the Medieval Muslim Imagination, 211.
180. Norman Calder, Islamic Jurisprudence in the Classical Era, (New York:
Cambridge University Press, 2010), 43.
181. Amjad, Is Fornication a Universally Recognized Moral Sin? Understanding
Islam Q&A, accessed May 11, 2016, http://www.understanding-islam.com/is-
fornication-a-universally-recognized-moral-sin/.
182. El-Rouayheb, Before Homosexuality, 132.
183. Reinhart, Before Revelation, 41.
184. Ibid, 42.
185. El-Rouayheb, Before Homosexuality, 133.
186. Ibid, 133.
187. Ibid, 132–33.
188. Ibid, 115.
189. Lange, Justice, Punishment and the Medieval Muslim Imagination, 211.
190. El-Rouayheb, Before Homosexuality in the Arab-Islamic World, 129.
191. Ibid, 115.
192. Muwaffaq al-Dīn Abdullah ibn Aḥmad ibn Qudāma Al-Maqdisī, Al-Mughnī
The ḥadd of liwāṭ, In [ اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe Golden
Encyclopedia of the Prophetic Golden Hadeeth and its Sciences], 2nd edition,
(London: Turath Publishing), CD-ROM.
193. El-Rouayheb, Before Homosexuality, 126.
194. Ibid, 26.
195. Ibid, 14.
196. Ibid, 13.
197. Ibid, 14.
198. Rowson, The Categorization of Gender, 68.
199. Ali, Marriage and Slavery in Early Islam, 183.
200. Rowson, The Categorization of Gender, 68.
201. Ibid, 66.
202. Ruling on one who has intercourse with his wife in her back passage
during the day in Ramadaan, Islam QA, accessed May 11, 2016,
https://islamqa.info/en/50452. Translation by anonymous and the authors.
203. Abd el-Wahab Ahmed El-Hassan, The Doctrine of Duress (Ikrāh) in Sharia,
Sudan and English Law, Arab Law Quarterly 1, no. 2 (February 1986): 236.
204. El-Rouayheb, Before Homosexuality, 136.
205. Ibid, 236.
206. Isik, Ikrāh—Intimidation, Duress and Hijr-forbidding.
207. El-Rouayheb, Before Homosexuality, 20.
208. Ibid, 137.
209. Ibid, 123.
210. Abdullah ibn Abi Zayd Al-Qayrawani, The Risala-A treatise on Maliki fiqh,
trans. Bello Mohammad Daura, London, Section 37:30, accessed January 25,
2016, http://www.archive.org/stream/TheRisala/TheRisala-
ATreatiseOnMalikiFiqh_djvu.txt.
211. We are grateful to Peter Gray for this point.
212. Imber, Why you should poison your husband, 208.
213. Ibid, 211.
214. El-Hassan, The doctrine of duress, 231–36.
215. El-Rouayheb, Before Homosexuality, 28.
216. Shalakany, Comparative Law as Archeology, 25.
217. Lange, Justice, Punishment and the Medieval Muslim Imagination, 193.
218. Chapter Fourteen: Nasibi propaganda relating to sexual ethics. Shia Pen.
219. Chapters on the Hadd of sodomy. Tashayyu, accessed January 27, 2016,
http://www.tashayyu.org.
220. Shahid e Mehraab Ayatullah-ul-Uzma Sayed Abdul Husain Dastghaib
Shīrāzī, Eleventh Greater sin: Sodomy, in Greater Sins, Volume 1, trans. Sayyid
Athar Husain S.H.Rizvi, accessed March 21, 2016, http://www.al-
islam.org/greater-sins-volume-1-ayatullah-sayyid-abdul-husayn-dastghaib-
shirazi.
221. Chapter Fourteen: Nasibi propaganda relating to sexual ethics. Shia Pen.
222. Email correspondence with Miqdaad Versi.
223. El-Shinqiti, Threats to behead homosexuals.
224. Amjad, Why Did Ali Burn Some Apostates? Understanding Islam Q&A,
accessed May 11, 2016, http://www.understanding-islam.com/why-did-ali-burn-
some-apostates/.
225. Kamali, Principles of Islamic Jurisprudence, 256, 318–19.
226. We are grateful to Miqdaad Versi for this point.
227. The reason why the one to whom a homosexual act is done is to be
executed. Islam QA.
228. Ibid.
229. Chapters on the Hadd of sodomy. Tashayyu.
230. Ibid.
231. Ibid.
232. We are grateful to an anonymous critic for this point.
233. Shīrāzī, Greater Sins.
234. We are grateful to an anonymous critic for this point.
235. Email correspondence with Miqdaad Versi.
236. We are grateful to an anonymous critic for this point.
237. Ibn Jumuʿa, ʿAbd ʿAli. Tafsīr Nūr al-Thaqalayn (Qom: Intisharat Ismailiyan,
1415 AH/1994), 2: 375–407.
238. Shīrāzī, Greater Sins.
239. Lesbian sex is strictly forbidden in Islam? Islam QA, accessed May 11,
2016. http://islamqa.org/hanafi/darulifta-deoband/27772.
240. Al-Bazaar. Musnad Ibn Abbas, Hadith No. 1751, in اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ
[ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe Golden Encyclopedia of the Prophetic Golden Hadeeth
and its Sciences]. 2nd edition, (London: Turath Publishing), CD-ROM.
241. Wizdom, Sexuele anarchie bestraft met geslachtziekten!
242. Al-Mizzī, Tahdhīb al-Kamāl, Biography of Nafi’a bin Abdullah, in اﻟﻤﻮﺳﻮﻋﺔ
[ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe Golden Encyclopedia of the Prophetic
Golden Hadeeth and its Sciences]. 2nd edition, (London: Turath Publishing), CD-
ROM.
243. Shīrāzī, Greater Sins.
244. Ibid.
245. Ibid.
246. Ibid.
247. Chapters on the Hadd of sodomy. Tashayyu.
248. Ibid.
249. Shīrāzī, Greater Sins.
250. Bukhari, Authentic Traditions, BOOK LX II (Marriage), Chapter 25.
251. Shīrāzī, Greater Sins.
252. Ibid.
253. El-Rouayheb, Before Homosexuality, 114.
254. Murtada Gusau, The Dangers of Homosexuality and Lesbianism in Islam,
Premium Times, December 18, 2015, accessed May 11, 2016,
http://blogs.premiumtimesng.com/2015/12/18/the-dangers-of-homosexuality-
and-lesbianism-in-islam-by-murtada-gusau/.
255. Semerdijan, Off the Straight Path, 45.
256. Shīrāzī, Greater Sins.
257. Ibid.
258. Doi, Sharia the Islamic Law, 242.
259. We are grateful to an anonymous critic for this point.
260. Bell, (1979), Love Theory in later Hanbalite Islam, 129.
261. El-Rouayheb, Before Homosexuality, 77–78.
262. Chapters on the Hadd of sodomy. Tashayyu.
263. Shīrāzī, Greater Sins.
264. We are grateful to an anonymous critic for this point.
265. Chapters on the Hadd of sodomy. Tashayyu.
266. Shīrāzī, Greater Sins.
267. Yusuf Al-Qaradawi, The Lawful and the Prohibited in Islam, (Cairo: Al-Falah
Foundation, 2005), 14–16.
268. Shīrāzī, Greater Sins.
269. Ibid.
270. Chapter Fourteen: Nasibi propaganda relating to sexual ethics. Shia Pen.
271. We are grateful to Mohammad Fadel for this point.
272. El-Rouayheb, Before Homosexuality, 124.
273. Ibid.
274. Ibid, 12.
275. Chapters on the Hadd of Tribadism and Pimping. Tashayyu.
276. Ibid.
277. Email correspondence with Miqdaad Versi.
278. Ibid.
279. Adang, Ibn Ḥazm on Homosexuality, 27.
280. Ibid, 26.
281. Chapters on the Hadd of Tribadism and Pimping. Tashayyu.
282. Ibid.
283. Ibid.
284. Ibid.
285. Ali, Sexual Ethics and Islam, 88.
C hapt e r 6
A d d re s s in g t he O pin ion s of
C on t e m porary S c holars
6 .1 D E S IR E V E R S U S
O R IE N T A T IO N
Some conservative Muslim preachers reject the innateness
of sexual orientation of gays and lesbians by referencing the
Qur’anic verses and Hadith texts—sayings attributed to the
Prophet—on the people of Lūṭ, to argue that God cannot
make people gay and then punish them for their behavior
for that would entail that God is unjust.2 Several such
thinkers, preachers, and other professionals sideline the
viewpoints upheld by mainstream psychological and
psychiatric professional bodies, and view the sexual
orientation of gays and lesbians as constituting base desires
or categorize it within a context that includes khawāṭir al-
shayṭān (satanic whims).3
In contrast, the Qur’anic verse 3:47 indicates that Allah
creates whatsoever He wills, and opposing the more zealous
jurists, several past Muslim jurists defended their
composition of love poetry in praise of the beauty of
beardless youth arguing that one cannot prohibit what God
made licit and that one ought not to think ill of fellow
Muslims.4 Putting aside the issue of pederasty for a while,
and in contrast to several contemporary Muslim thinkers,
many past jurists, including the more conservative scholars
like Ibn Taymiyya,5 (d. 1328), whom many current
conservative Muslims seem to follow, while upholding the
conventional view on the prohibition of same-sex acts, did
not view the tilt toward the same sex as an aberration,
deviance, or an inspiration from Satan. Scholars like ʻAlam
al-dīn Sanjar al-Jāwulī (d. 1343) who admired Ibn Taymiyya
not only wrote love poems on both sexes but also
interspersed them with quotations from the Qur’an.6 Jurists
like Ibn Ḥazm (d. 1064) went so far as to state that love is
neither disapproved by Religion, nor prohibited by the Law;
for every heart is in God’s hands. 7
Past jurists viewed the desire for beardless boys and even
male slaves as consistent with the desire to penetrate the
vagina of a female or the anus of a beardless boy or
whomever. Therefore, they felt that the vagina may suffice
as more than an adequate alternate therapy for such desire,
even though they acknowledged that this may not work for
all. Such scholars did not have a problem acknowledging
that some people have genuinely natural desires toward
things that are prohibited. They certainly emphasized that
the prohibition is against the action rather than the desire,
and they did feel that there were legitimate alternatives that
are available for such people through marriage, as the
desire to penetrate would have been fulfilled. Thus, while
they were prescribing patience, they were asking for
patience as a temporary solution to a genuine desire that
would have been eventually fulfilled through marriage. To
past scholars, whether a desire is innate or acquired is
irrelevant for they acknowledged it as real. However,
contemporary Muslim scholars seem to have problems with
any desire toward something that is deemed prohibited and
therefore may use arguments that such desires go against
or corrupt fiṭra (nature). Indeed, such arguments were rarely
used by traditional scholars of the past.
6 .2 F O U C A U L T ’S S O C IA L C O N S T R U C T IO N O F
S E X U A L IT Y
In a similar vein of rejecting the sexual orientation of gays
and lesbians, a researcher at the International Institute of
Advanced Islamic Studies in Malaysia has argued in a 2012
paper that there is no such thing as a homosexual and
that dignity and rights can be accorded only to human
beings. 8 He opines that the medical view of sodomy
emerged in the nineteenth century, and borrowing from
Foucault, he rejects the essentialist view of sexual
orientation as depicted by Foucault’s choice of words
interior androgyny or the hermaphrodism of the soul, in
favor of viewing it as an artificial construct or a biological
aberration.
However, Mark Brustman,9 a writer and an avid reader of
the classical texts on same-sex relationships, takes the
novel, contrarian view that Foucault himself implies the
existence of constitutional gays and lesbians when he refers
to the sensuality of those who did not like the opposite
sex as having been subjected to the scrutiny of nineteenth-
century medical science. He asserts that Foucault’s phrase
( those who did not like the opposite sex ) is a clear allusion
to an existing group that would form the core of the
homosexual species that Foucault claimed was invented
by medical discourse. Brustman further argues that what
Foucault views as a social and historical construct is
specifically the assignment of same-sex feelings exclusively
to a small minority of anomalous people defined as
homosexuals, whereas other historical periods have seen
same-sex desire as unremarkable and widespread.
Examples of such same-sex conduct indeed abound within
gender-segregated societies, a point noted in chapter 1, and
in specific contexts as prisons.
The point that Foucault argued for same-sex sexuality as a
social construct can also be understood based on the fact
that he viewed identity as a form of subjugation or as a way
of exercising power over people10 through medical
encroachment. Kugle indicates that the term
homosexuality was used in medical clinics to identify a
deviant sexuality in order to classify people as deviants and
to control, cure, or confine them.11 Foucault’s opposition to
a gay identity can also be understood on the basis that
given his risqué same-sex encounters including sado-
masochism and his involvement in drugs,12 he would
potentially be opposed to a life that involved the strictures
of lifelong same-sex monogamous couple-hood. As such,
Foucault needs to be read based on the context of his
disposition and context, instead of being misappropriated to
reject a reasonable understanding of the issues of
constitutional gays and lesbians and deny them any
recognition.
The emphasis on Foucault’s point that the essentialist view
of sexual orientation is a nineteenth-century invention can
also be critiqued on the basis of John Thorpe’s reading of
Aristophanes’ speech in the Symposium, which depicts the
existence of males who, while marrying for societal
conventions, wish to live with other males beyond
copulation as their souls long for something which they
cannot name.13 The fact that constitutional gays existed
without having a label or identity indicates that while
adopting a specific identity might be a social construct, it
does not negate the underlying existence of the
constitutional gay individual. This point may be understood
on the basis of a quotation from Muhammad Asad’s book
Road to Mecca, which suggests that the absence of an
adoptive identity, in this case that of a Muslim, does not
negate the fact that the person with the characteristics
marked by that identity actually exists.
I laughed, and replied: No, I am not a Muslim, but I have come to see so
much beauty in Islam that it makes me sometimes angry to watch you people
waste it.
But my host shook his head. No, it is as I have said: you are a Muslim, only
you don’t know it yourself. 14
6 .3 T H E F IṬ R A A R G U M E N T
Contemporary conservative scholars also go beyond
rejecting the existence of gays and lesbians or making
arguments that depict gays and lesbians as having
abnormal or unnatural urges. As such, an argument is made
that the artificial concept of a homosexual distorts the
Qur’anic concept of fiṭra—human nature that relates to
body, mind, and spirit instead of just the psychobiological
constitution.22 In essence, it is argued that compassion and
mercy cannot be realized through demanding special
rights on the basis of artificial constructs. While allusion to
the common humanity of people based on fiṭra is made,
irrespective of any sins or misdeeds that are committed by
them, the core existence of gay and lesbian individuals is
rejected based on the understanding that verse 30:30, a
part of which reads the nature made by Allah in which He
has made men; there is no altering of Allah’s creation,
suggests that fiṭra does not change.
In a similar vein, it is stated that people corrupt their fiṭra,
in whose definition is included the term opposites attract,
through external means or by themselves. An argument is
made that the primary reason behind the rise in
unnatural inclinations is the proliferation of sexual images
and public sexuality. 23 Likewise, it is asserted that one way
a person can become gay very easily is by watching too
much pornography.24 Ignoring the consensus amongst
mainstream psychological and psychiatric organizations that
same-sex orientation is a profoundly constitutive part of
gays and lesbians, conservative scholars go beyond the
biological concept of nature to the spiritual concept of fiṭra
to argue that gays and lesbians have a fiṭra that has been
distorted or corrupted.
It is not clear how contemporary conservative scholars can
state with full conviction that the Islamic concept of fiṭra
includes the idea that all people are born straight, for such a
claim does not seem to have been made by past jurists.
Since fiṭra has usually been understood as the inclination of
the soul to worship the one true God, by conflating it with
sexuality, it seems that contemporary conservative scholars
are mimicking the opinions prevalent within Catholic circles
wherein same-sex orientation itself, in the absence of any
same-sex acts, is viewed as unnatural. The Hadith texts
wherein fiṭra is viewed in the context of body grooming and
hygiene practices also do not mention the inclusion of
sexuality within the definition. Moreover, even past
conservative scholars like Ibn Taymiyya (d. 1328), while
acknowledging that some people are afflicted with the love
of beardless youth, did not state that such people are going
against fiṭra.
Since the concept of fiṭra is distinguished from that of
tabi’a—which refers to mankind’s passions, desires, and
impulse toward survival, conflating fiṭra with sexuality or
same-sex desires seems more like a polemical move than
one warranted by the definition of fiṭra. However, when
conservative scholars try to claim that homosexuality
goes against fiṭra, it seems that they are essentially trying
to reconcile their prescription of the prohibition of same-sex
relationships to constitutional gays and lesbians with the
claim, as highlighted by Andrew March, that Islamic law is
compatible with fiṭra in that the law is perfectly suited to
the needs, desires, and inclinations of human beings. 25
Since they would uphold that Islamic law is suited to
people’s legitimate human needs, they reject the innateness
of same-sex orientation and conclude that such an
orientation comes about as the corruption of fiṭra. In this
regard, as in the case of Foucault, they can summon the
many cases of same-sex conduct, which are perpetrated in
gender-segregated societies and in prisons, allude to public
obscenity and pornography, and eventually conflate all this
with the context of constitutional gays and lesbians.
Moreover, in a polemical move, contemporary conservative
scholars can reference Ibn Taymiyya’s (d. 1328) opinion that
notwithstanding the Qur’anic claim in verse 30:30 that fiṭra
does not change, God has granted people the ability to
change through willful disobedience.26 However, Ibn
Taymiyya’s context is that of unbelief rather than same-sex
acts, which necessitates the polemical move on part of
contemporary conservative scholars to argue that through
their actions of watching pornography, masturbation, and
same-sex conduct, that is, by committing bad deeds, people
willfully disobey God and hence end up distorting or
corrupting their fiṭra.
However, such an opinion of deliberate change in fiṭra in
the case of constitutional gays and lesbians is difficult to
hold. In contrast to the argument that fiṭra does not change,
conservative scholar Syed Qutb (d. 1966) indicated that God
is capable of altering human nature or creating him with a
different nature,27 which in a general sense lends support to
the view that not all human beings can be assumed to have
the same disposition or orientation. Another argument
against people being responsible for the change in their fiṭra
through willful disobedience can be made as follows. Based
on a Hadith text in which it is recommended to teach
children to pray at the age of seven and admonish them for
not praying at the age of 10, it is construed that at the age
of seven, children begin to discern between good and bad
and that at the age of 10, mental faculties are able to
properly digest information.28 While, based on various
Hadith texts, rights and responsibilities are listed for youth
at the age of 15, according to the jurist Abu Ḥanīfa (d. 767)
the age of majority is considered to be 18 for males and 17
for females.29 These ages are important to note for even
Joseph Nicolosi, a founding member of NARTH, suggests
about preventing the development of homosexuality in
children as young as 4 years old.30 It has also been
indicated that Nicolosi takes clients as young as 3 years old
for ex-gay therapy.31 Thus, based on the juxtaposition of
Islamic texts and Nicolosi’s comments, how can gay and
lesbian youth be held responsible for deliberately changing
their fiṭra when responsibility in Islam does not get
attributed before the age of 18 or 15 and when the ability to
discern between right and wrong does not develop before
the ages of 10 or seven and when one of the arch
proponents of reparative therapy focuses on children as
young as three or four?
It is clear from the above analysis that contemporary
conservative Muslim leaders misappropriate the Muslim
tradition to frame the discussion on sexual orientation of
gays and lesbians as one about people who willfully corrupt
their fiṭra through disobedience by following their abnormal
urges. By framing the issue as such, they are actually not
being consistent with the Islamic tradition that at least did
not classify such desires as unnatural. As noted earlier, by
borrowing ideas on social construction of sexuality from
Foucault and reparative therapy from NARTH, contemporary
conservative Muslim leaders end up making arguments that
are far removed from the Islamic tradition and share more
with the strict Catholic Christian position that views same-
sex desires themselves, in the absence of any acts, as
unnatural. This is reminiscent of the observation noted by
Kecia Ali, in the context of issues related to women, that
while conservative Muslim leaders may believe that they are
adhering to the classical legal doctrines, their justification is
Victorian and far removed from the classical Muslim
discourse.32
Finally, it deserves to be underscored that searching the
Hadith corpus for the term fiṭra indicates that the term
appears mainly in matters of belief, preferring milk to wine,
matters of personal hygiene, as in shaving the moustache
and letting the beard grow, shaving the pubic area, plucking
the underarm hair, and cleaning the nose and mouth.
However, not a single Hadith declares fiṭra as being related
to sexuality. Therefore, some contemporary scholars
extrapolate the term fiṭra to matters that were not related
to Muslims by the Prophet whether through a strong or even
a weak Hadith.
6 .4 S H U N N IN G D IA L O G U E : T H E IJM Ā ʿ ( C O N S E N S U S )
A R G U M E N T
Kecia Ali states how any meaningful dialogue on the issue of
Muslim gays and lesbians is thwarted based on a don’t ask
don’t tell model that is perpetuated by conservative
Muslim scholars, who argue that sinful behavior should not
be disclosed and that it is a greater offense to deny rules
than to break them.33 Some conservative Muslim scholars
continue to view the orientation of gays and lesbians as an
inclination and state that acting on desire is a sin as
known by ijmāʿ (consensus), which if denied would
constitute fisq—deviation from the Islamic path.34 It is
asserted that Muslims should not be intimidated or bullied
into failing to state this ruling. 35
In the context of issues related to women’s rights, Kecia Ali
has noted that too often warnings are given to desist from
challenging widely held views by charges of heresy,
blasphemy, and apostasy.36 Dr. Omar Farooq has noted how
ijmāʿ has been abused to silence opponents and
underscores the fact that there is no ijmāʿ on the definition
of ijmāʿ itself for a great majority of scholars do not even
restrict the definition to the ijmāʿ of the Companions of the
Prophet, which is usually given precedence.37 Farooq
references the jurist Shāfiʿī (d. 820) as highlighting how rare
it was to find an opinion from a Companion, which was not
contradicted by another, and also references the scholar al-
Ghāzālī (d. 1111) who asserted that perhaps the validity of
ijmāʿ was simply based on customary norms rather than the
foundational texts of Islam.38
The problem with asserting the claim that there exists ijmāʿ
on a particular issue is the existence of competing
definitions in that whether ijmāʿ refers to the consensus of
all Muslims, just the Salaf—pious elders that constitute the
first three generations of Muslims, all Muslim scholars, or
only those of a particular sect. Some Muslim groups, such as
the Naẓẓām faction of the Mutazilah and some Kharijites,
also rejected the acceptance of ijmāʿ as a proof of binding
opinions.39 The jurist Shāfiʿī (d. 820) defined ijmāʿ as the
consensus of all Muslims, thereby making it nearly
impossible to have consensus. Indeed, given Shāfiʿī’s
position, the most one can assert on an issue is that one is
unaware of a dissenting opinion, instead of asserting that an
ijmāʿ exists, since a dissenting opinion may have existed
earlier but not documented.
Farooq not only references the jurist al-Bazdawī (d. 1100)
to assert that if a past ijmāʿ is later found unsuitable, it can
be replaced through reasoning with a new ijmāʿ, but also
mentions Muslim reformer Sayyid Aḥmad Khan (d. 1898)
who sometimes invalidated the ijmāʿ of the Companions to
contend for a fresh ijmāʿ in light of changed circumstances,
as well as the Muslim thinker Iqbal (d. 1938) who like some
past jurists believed that fiqh (Islamic jurisprudence) ought
to be changed in view of changed circumstances.40
Like what Farooq has done, Muslim scholar Dr. Hashim
Kamali has referenced the jurist Abu Ḥanīfa (d. 767) who
stated that while he did not altogether abandon the views of
the Companions, he did abandon their ruling, which did not
appeal to him.41 Kamali also references past jurists who
held that the fatwā (edict) of a Companion did not constitute
a binding proof in Islamic jurisprudence, and also referenced
both Shāfiʿī (d. 820) who stated that scholars have
sometimes abandoned the fatwā of a Companion, as well as
Iqbal (d. 1938), who opined that later generations were not
bound by the decisions of the Companions.42
The fact that ijmāʿ can be challenged can be noted from
how Wahabi scholar Ibn al-Uthaymeen (d. 2001) went
against the ijmāʿ on the validity of forced marriages of
minor girls that was based on the Hadith pertaining to
ʿĀ’isha mentioned in Ṣaḥīḥ Bukhārī.43 It may also be noted
that two analogies can coexist as two ijtihādī opinions
without one abrogating the other and a subsequent ijmāʿ
can abrogate an existing ijmāʿ based on maṣlaḥa mursala
(public interest) and ʿurf (custom).44 According to Shaltūt (d.
1963), the objective of ijmāʿ is to realize maṣlaḥa, which
varies with time and place and ijmāʿ has to be reviewed if it
is the only way to realize maṣlaḥa.45 This indicates that if a
past ijmāʿ fails to uphold public interest with changing social
mores, then the past consensus has to be revisited as
maṣlaḥa trumps ijmāʿ. In the context of same-sex unions,
since the issue of a legal contract for same-sex couples was
not addressed and the framework of liwāṭ is grossly distinct
from intimacy between same-sex couples, any supposed
ijmāʿ upheld by conservative scholars has to be reviewed for
the welfare of Muslim gays and lesbians.
However, notwithstanding the issues associated with the
definition of ijmāʿ, including the difference of opinion on the
definition as being the consensus of the Companions,
contemporary conservative scholars continue to use it as a
tool to silence dissenting opinions in contemporary Islamic
thought. This intransigence may be explained through
Muslim academic Dr. Kugle’s observation that such scholars
in the West are scared to lose their status and following in
the Muslim minority communities that remain closed
minded on this issue since they feel under threat.46 Some
conservative Muslim scholars have tried to project a
consensus against same-sex relationships by alluding to the
majority views within major world religions and spiritual
traditions, including Hinduism, Buddhism, Judaism, and
Christianity, that condemn and forbid homosexuality, and
opine that the call to Muslims to accept homosexuality is
bound to fail even within reformist Islam.47
However, the supposed prohibition of same-sex unions
cannot be extrapolated from Judeo-Christian laws as laws
revealed before the advent of Islam are not applicable to
Muslims.48 Maimonides (d. 1208) specifically and repeatedly
equated homosexual acts with matters like the hybridization
of cattle, rules which have no bearing on Muslim law.49
Furthermore, the word toevah (abomination) used in
Leviticus 18:22, which admonishes a man lying with another
man like a woman, does not refer to something intrinsically
evil but something ritually unclean like eating shellfish,
trimming beards, mixing fibers in clothing, etc.50
A consensus does not exist within world religions given
that various Church denominations like the United Church
and Unitarian Church as well as both Conservative and
Reform Judaism along with Muslims for Progressive Values
and the el-Tawhid Juma Circle mosques affirm same-sex
relationships. Moreover, the opinion on various world
religions having a consensus against homosexuality is not
supported by some Muslims, who, in the context of the
support for same-sex relationships by Jews and Christians,
are quick to point out the eschatological Hadith that depicts
Muslims following the Jews and Christians into a lizard hole.
As an aside, it is interesting to note that the context of the
Hadith is about infighting amongst the Jews and Christians,
but conservative Muslims conflate the text with the issue of
same-sex unions.
Despite this difference of opinion, some Muslim thinkers
distinguish between an individual’s public and private life to
assert that while homosexuality is morally reprehensible
under Islam and that it should not be promoted, a
practicing homosexual who is Muslim cannot be
excommunicated.51 However, they perpetuate the same
don’t ask don’t tell model that seeks to stifle any
discussion on the legitimate concerns of practicing gay and
lesbian Muslims. It seems that Muslim gays and lesbians can
be respected enough as human beings to let them live their
lives in private but not human enough to allow them the
right to fulfill their genuine human need for intimacy and
companionship as visible couples who are part of a
religiously vibrant Muslim community. This raises concerns
of justice in the public sphere, for if a Muslim gay couple
lives as a couple in the private sphere, then accessing
public benefits in the public sphere becomes incredibly
impossible. For instance, according to Muslim academic Dr.
Mohamed Fadel, it does not seem fair that accessing health
care causes great problems if decisions on behalf of
someone hospitalized are usually given to a spouse.52
In conclusion, notwithstanding the difficulties with the
definition of ijmāʿ, the consensus among past scholars will
have to be defined. In this sense, it may be argued that
Muslim scholars of the past ruled on the prohibition of same-
sex relationships but in the context of absence of marriage
or legal arrangement. This consensus does not hold for the
question that was never addressed, that is, about the
legitimacy of same-sex unions. Thus, it cannot be assumed
that the previous consensus applies to the issue of same-
sex unions.
6 .5 T H E S L IP P E R Y S L O P E
A R G U M E N T
Conservative Muslim leaders, instead of viewing the totality
of the lives of Muslim gays and lesbians of which the need
for intimacy and companionship is a legitimate part, focus
exclusively on the sexual aspect of same-sex relationships.
A fatwā (religious edict) was issued in 2006 stating that
sincere love does not legitimize a prohibited practice.53 The
argument that that sincere love does not legitimize a sexual
practice does not do justice to the position of Muslim gay
and lesbians. It is an argument that conservative Muslim
scholars usually like to make when they view the orientation
of gays and lesbians as an impulse or desire and rely upon
the horror of the audience to make the slippery slope
argument that if actions were legitimized by feelings then
that opens avenues for the justification of all sorts of crimes
based on feelings and desires. Moreover, despite the fact
that some like to distinguish between people and acts, that
is, constitutional gays and lesbians on the one hand and
acts of bestiality and incest on the other, the argument for
same-sex relationships does not necessarily stem from the
fact that since the orientation is constitutional same-sex
relationships should be justified, for conservative Muslim
leaders are quick to point out the existence of zoophiles and
pedophiles.
The argument for same-sex relationships could be based
on the fact that the case of constitutional gays and lesbians
is different from those who indulge in adultery, incest, or
bestiality as the latter acts involve issues of consent and the
fact that those who indulge in adultery or incest already
have options to satisfy their needs through marital union
with opposite gender spouses. Moreover, since
constitutional gays and lesbians are denied a legitimate
avenue to forge same-sex unions and since marriage with
an opposite gender spouse54 does not seem to be an ethical
alternative, for it involves toying with the life and
aspirations of a heterosexual spouse, the analogy between
gays and lesbians and those who engage in adultery and
incest is not an appropriate one to make. However,
according to Dr. John Corvino, even the argument that gays
and lesbians are asking for equal options instead of extra
options as in the case of polygamy and incest can be
countered by conservative thinkers by conceding that the
prohibition of same-sex relationships places greater burden
on gays and lesbians than the prohibition of incest places on
those who indulge in those acts.55 Indeed, Muslim leader Dr.
Maher Hathout (d. 2015) made this argument in his podcast
talk in which he states that the parallel between the
homosexual and the straight person is not accurate in
that the latter has an option for release, and that the former
must face the extra jihad—struggle within to remain celibate
or that whatever happens must remain in the private
sphere.56 As such, conservative Muslim leaders remain
unmoved by the injustice in relegating the constitutional
gay and lesbian Muslim to a lifetime of celibacy and seek to
deploy the don’t ask don’t tell tactic by relegating the
issue to the private sphere.
The above indicates that the argument that sincere love
does not legitimize same-sex relationships will have to be
addressed in a better manner than the usual arguments
that distinguish between constitutional gays who are denied
their basic need for intimacy and companionship and those
who commit acts of incest and adultery for whom the option
of a marital union remains available. As such, instead of a
weak analogy between incest, bestiality, and adultery with
same-sex relationships, a better analogy, according to
Corvino, would be to compare the latter with nonprocreative
heterosexual relationships57 to argue that if the benefits of
marriage, as mentioned in the Qur’anic verse 30:21—
tranquility, mercy and mawadda (affection)—can be realized
in same-sex relationships, just as they are in nonprocreative
heterosexual relationships. The burden of proof is then on
conservative Muslim leaders to clarify on what basis are
they denying gays and lesbians the ḥaqq (right) to a life of
intimacy and companionship with a same-sex partner.
6 .6 T H E T E X T - BA S E D A R G U M E N T S
It is argued that the prohibition of homosexuality is a
ḥukm qaṭʻī (absolute injunction) based on qaṭʻī al-thubūt
(indisputable evidence) and that the prohibition is qaṭʻī al-
dilāla (unquestionable in purport). Likewise, it is argued that
the prohibition of same-sex relationships is based on the
principle of maʿlūm min al-dīn bi-l-ḍarūra—religious
doctrines known by necessity to be part of religious
teachings, that is, no inference is required to understand
them.58
Such arguments, which merit careful consideration, are
based on the Hadith texts and the Qur’anic verses on the
people of Lūṭ, chiefly verses 7:80–81, 26:165–166, 27:55,
and 29:28–29 that depict the condemnation of the actions of
the people of Lūṭ. It is important to highlight that
conservative Muslims usually like to project that the plain
reading of the verses explicitly condemns same-sex
relationships. However, they substantiate their argument by
quoting one of the three verses—7:81, 26:165–166, or 27:
55—noted in chapter 2, without referring to the context
formed by other verses: 7:80 and 29:28–29.
Conservative Muslims apparently feel that by quoting such
verses plainly, they can halt any dialogue on the issue of
same-sex relationships. However, if such verses are
construed as condemning same-sex relationships and if the
sexual orientation of gays and lesbians is considered to be
innate, then this leads to the issue of the injustice of God for
that would mean that God creates gay people and expects
them to forgo the legal fulfillment of their legitimate human
need, which would go against the notion that the objective
of Islamic law is to attain the maṣlaḥa (welfare) of man and
also the notion that Islamic directives are easy to follow, in
that the law is harmonious with the needs of man. To
address the issue of the injustice of God, conservative
Muslim thinkers either argue that the sexual orientation of
gays and lesbians is not innate or that while the
inclination might be natural, one must not act on those
urges as part of the trial decreed by God for which the
person undergoing the trial will be rewarded in the
Hereafter.
The argument that the sexual orientation of gays and
lesbians is not innate or that it is a consciously elected
choice goes against the consensus within the medical and
psychological professional communities. Since conservative
Muslims and their leaders derive their convictions on the
same-sex unions issues from the Qur’anic verses and Hadith
texts, they end up viewing the consensus within the medical
and psychological professional bodies with great suspicion.
They also end up making arguments based on conspiracy
theories that the removal of homosexuality from the list of
disorders was forced under pressure from gay rights groups,
thereby discounting the progress on the issue made within
the psychological and psychiatry professional bodies over
several decades. Such a rigid attitude of conservative
Muslims and their leaders contradicts their general claims,
made in contrast to other religions, on how Islam prizes
scientific enterprise and how Islam views sex as a legitimate
human need for which it provides a legitimate avenue for
fulfillment.
In contrast to the reality of gays and lesbians, the Qur’anic
verses 7:81, 26:165–166, or 27:55 do seem to indicate that
the conduct of the people of Lūṭ was a deliberately elected
choice to approach men lustfully instead of women. While
there is no explicit limitation mentioned in the verses—laysa
ʿalā ẓāhirihā—that excepts gays and by analogy lesbians
from the general category of men who, despite not having a
sexual orientation toward the same-sex, pursue other
men,59 there are cases where the ẓāhir (manifest) meaning
of the Qur’anic text has been subject to limitation by takhṣīṣ
(specification). As an example, the Jews and Christians,
referred to in verse 5:51 that forbids Muslims from taking
them as friends, are specified as those of a particular
context in seventh-century Arabia instead of those from
other times. As such, whether through the method of
takhṣīṣ or the observation that the general rulings of the
Qur’an are open to exceptions, applying these verses to the
case of constitutional gays and lesbians would be a gross
conflation. Indeed, no interpretational or hermeneutic
jugglery is needed to note that since dhakar (males) are
linguistically and generally viewed as nonreceptive entities
and that unthā (females) are viewed as receptive entities,
the above quoted verses are reproving the people of Lūṭ on
approaching men, who are not generally partial to the
advances of other men, instead of women, who are likelier
to be partial to the advances of men.
In short, a plain reading of the relevant Qur’anic verses
suggests that the people of Lūṭ elected to pursue men
instead of women, and that it makes sense to not conflate
the import of these verses with the case of gays and
lesbians. By avoiding such a conflation, conservative Muslim
leaders will not only avoid the issue of divine injustice but
also avoid having to resort to conspiracy theory-based
arguments that are unnecessarily evoked by those who pit
their religious convictions with science. Indeed, far from
shunning the dialogue, by plainly reading the Qur’anic
verses 7:81, 26:165–166, or 27:55, conservative Muslims
and their leaders end up raising more questions than
resolving them.
Conflating these verses to exclusively refer to gays and
lesbians also goes against the principle as elucidated by the
Muslim scholar Maududi (d. 1979) that the Qur’an merely
seeks to chart a broad code of law and only deals with
fundamental questions.60 What this suggests is that instead
of viewing these Qur’anic verses as exclusively applicable to
a minority of people, which would go against the Qur’anic
style of avoiding secondary details, it seems more
appropriate to view these verses as applicable to all people.
The relevant verses do not directly address the reality of
gays and lesbians but men who pursue other men instead
of women. However, conservative Muslim leaders conflate
the category of men who pursue other men instead of
women with gay men. This conflation seems to be based
on qiyās (analogical deduction) instead of a plain reading of
the verses as men who pursue other men instead of
women are not necessarily gay men looking for a loving
same-sex relationship, a point which can be substantiated
by a holistic analysis of verses 7:80, 11:77–79, 15:67–72,
and 29:28–29, that form the context of the acts of the
people of Lūṭ. Indeed, as noted earlier, based on the
observation highlighted by the jurist al-Āmidī (d. 1233) that
hidden attributes are left to God,61 the Muslim tradition does
not account for hidden attributes like orientation and deals
only with apparent actions.
Deducing a prohibition based on qiyās, as in the case of
equating men who pursue other men instead of women
with gays and by deduction with lesbians, is prone to bias
and error given human limitations in the formulation of
analogy. Given the speculation involved in the determination
of the ‘illa (causes) and maqāṣid (objectives) of divine
injunctions, several past scholars affiliated with the
Mu‘tazila, Ẓ āhirī, Shī‘ī, and Ḥanbalī schools of jurisprudence
questioned the validity of qiyās,62 which as an inferential
method was deemed to yield only ẓannī (probabilistic)
instead of qaṭʻī (certain) knowledge.63 Moreover, a ruling
based on qiyās is open to challenge and is rarely considered
final, which is perhaps why a whole school of jurisprudence,
the Ẓ āhirī school, was built on the rejection of qiyās as a
method to determine legal injunctions.
Since in determining legal injunctions, qiyās is viewed as
yielding only ẓannī knowledge, just as al-Amidi (d. 1233)
noted that ijmāʿ yielded probabilistic knowledge of legal
injunctions, and that even Hadith that are not mutawātir—
successively transmitted by an overwhelming majority of
narrators—yield only probabilistic knowledge,64 indicates
that the argument that the prohibition of homosexuality is
a ḥukm qaṭʻī (absolute injunction) based on qaṭʻī al-thubūt
(indisputable evidence) and qaṭʻī al-dilāla (unquestionable in
purport), warrants further consideration. First, it has already
been noted that a plain reading of the Qur’anic verses leads
to more questions than answers. Second, it is not clear if
conservative Muslim leaders can deduce qaṭʻī injunctions
based on methods—non-mutawātir Hadith, ijmāʿ and qiyās—
that yield ẓannī knowledge. It may be asserted that after an
ijmāʿ coalesces around a ḥukm ẓannī—legal injunction
based on methods that yield probabilistic knowledge—may
attain the status of ma‘lūm min al-dīn b-il-ḍarūra—religious
doctrine known by necessity to be part of religious
teachings. However, such an assertion does not do justice to
the concept of ma‘lūm min al-dīn b-il-ḍarūra, which simply
means that one does not require specialized training to
decipher the ḥukm (legal injunction) as opposed to implying
that the injunction was qaṭʻī (certain).65 As such, when
conservative Muslim leaders try to deduce the prohibition of
same-sex relationships within a legal contract by arguing
that the prohibition is an essential part of faith, they end up
making claims far stronger than their ẓannī (probabilistic)
methods would allow. Indeed, making strong claims based
on probabilistic knowledge could be construed as mere
conjecture and speculation.
6 .7 A R G U M E N T S BA S E D O N A P O S T A S Y , W H I M S , A N D
W H A T Y O U R R IG H T H A N D P O S S E S S E S
Conservative Muslim leaders adopt a bullying tactic to
intimidate any points of view that oppose their viewpoint on
the prohibition of same-sex relationships. Some state that
while acting upon same-sex urges constitutes a major sin,
any justification through articles or any arguments to deem
same-sex conduct as Islamic would constitute kufr
(disbelief).66 It is argued that the prohibition of
homosexuality is part of the ḍarūriyyāt al-dīn (essentials
of the Islamic faith), therefore any person denying the
prohibition would be an apostate, and that any dissenting
opinion that associates the prohibition with lust rather than
love would be inadmissible. In a similar vein, it is argued
that the prohibition of same-sex relationships is ma‘lūm min
al-dīn b-il-ḍarūra (religious doctrines known by necessity to
be part of religious teachings).67 Thus, some may argue that
since a person who commits inkār al-ḍarūrī (rejects the
necessary aspect of Islam) is a kāfir (disbeliever), therefore
to deny the prohibition of same-sex unions is to invite
charges of fisq (disobedience) or kufr.
However, the issue of a legal contract for same-sex couples
is not ma‘lūm min al-dīn b-il-ḍarūra and according to Ibn
Ḥazm, not only can a Muslim not be charged with kufr or
fisq regarding i‘tiqād aw fatwā (dogmatic or juridical issues)
but also ijtihādī (independently reasoned) opinion merits a
reward68 even if it were to be wrong based on the Prophetic
Hadith on twice as much reward on being correct and once
on being wrong as it is the exertion of intellectual effort that
mattered. Furthermore, charges of kufr were laid for reasons
that might be deemed repugnant based on contemporary
sensibilities. For instance, when the seventeeth-century
Ḥanafī jurist Ḥaṣkafī opined that if a man, who had four
wives and a thousand concubines, was reproached for
taking another concubine, it was as if the critic had
committed disbelief by reproaching a permissible conduct.69
Conservative Muslim leaders use the apostasy argument as
a polemical move in the same manner as they link same-sex
relationships with the violation of fiṭra. In essence, by
making arguments that connect the reality of gays and
lesbians and their genuine concern on the right to a life with
intimacy and companionship with the metaphysical realm of
fiṭra and putting the issue on par with the essentials of the
faith, conservative Muslim thinkers end up usurping and
inflecting the tradition to silence dissenting opinions, which
are also rooted in the Islamic tradition. Indeed, it can been
argued that the Qur’anic verses 3:47 and 42:49 indicate
that Allah creates whatsoever He wills and that the
requirement of being a heterosexual Muslim is not included
within the six articles of faith as espoused by Sunnī Muslims,
which include belief in God, angels, the divine books, the
prophets, the Day of Judgment, and destiny. Moreover, the
six articles of faith also do not include the criterion that one
has to believe that same-sex relationships are Islamically
incompatible and that claiming otherwise would take one
outside the folds of Islam. Indeed, al-Ghāzālī (d. 1111)
opined that the three roots of belief are belief in God, the
Apostle, and the Last day, and anything else is a branch of
belief on which the charge of unbelief cannot be imputed.70
There exist opinions from past scholars that indicate that
arguing for the permissibility of liwāṭ would be tantamount
to committing apostasy. Ibn al-Qayyim (d. 1350) mentioned
that construing the phrase aw mā malakat aymānukum
(what your right hand possesses) to refer to male slaves in
order to argue for the permissibility of liwāṭ with them would
be distorting the meaning of the Qur’an as it would be in
contradiction to the severe Qur’anic condemnation of liwāṭ
and referred to such distortions as fitna al-shubuhāt (trial of
doubt).71 He opined that the origin of all fitna (trials) could
be explained by giving priority to raʾy (personal opinion) and
hawā (caprice) over sharʿ (the legal) and ʿaql (reason)
respectively and that a person who embraces the view of
the permissibility of liwāṭ would be a kāfir (infidel) by
consensus of the entire umma (Muslim community).72
In contrast to Ibn al-Qayyim, who believed that a person
commits apostasy by opining the permissibility of liwāṭ,
there were other scholars who actually sanctioned such
sexual relationships and rejected the apostasy charge. Male
slaves were sexually used by their masters73 and at times
this was sanctioned by some Mālikī jurists74 and some Shī‘ī
scholars75 on the basis of the mulk yamīn (ownership of the
right hand) rationale that allowed sexual relationship with
female concubines.76 The Ḥanafī jurist al-Kawākibī (d. 1685)
confirmed that based on the phrase what their right hand
possesses verses 23:6 and 70:30, which generally alluded
to female concubines, there were those who deemed liwāṭ
with male slaves permissible.77 Moreover, the jurist Ibn
ʿĀbidīn (d. 1836) stated that claiming the permissibility of
liwāṭ with male slaves did not necessitate kufr (unbelief).78
In terms of Ibn al-Qayyim invoking ijmāʿ for bolstering his
position of excommunicating those who held an opinion
contrary to his views on liwāṭ, it may be noted from Section
6.4 how Dr. Omar Farooq asserted that ijmāʿ has been
abused to silence opponents. There are various issues
revolving around defining ijmāʿ, which is relative in the
sense that one can only claim that one is unaware of a
dissenting voice on a particular issue as a dissenting voice
may have existed but then later disappeared or not
documented. Thus, invoking ijmāʿ on the position of same-
sex relationships does not seem reasonable as alternate
opinions presented above clearly indicate the absence of
ijmāʿ on the issue and even if one were to give precedence
to Ibn al-Qayyim’s opinions over the others, one cannot
conflate ijmāʿ on liwāṭ to same-sex relationships given the
stark difference between the two.
Ibn al-Qayyim views personal opinions and caprice as a
source of trials, which have to be eschewed in formulating
Islamic legal opinions. However, one cannot conflate that to
refer to carefully thought out opinions based on the spirit of
addressing human need in a starkly different human and
social context of contemporary gays and lesbians. Dr.
Hashim Kamali provides us with principles that allow for
adopting reasonable positions in Islamic law, even if such
opinions were to go against the grain of traditionally held
dogma and even in the face of hostility from the masses,
who may be uninformed and in need of guidance, as long as
the values of tawḥīd (monotheism) and the clear guidance
of the Qur’an were not denied.79 He asserts that there is no
objection to publishing books, which challenge prevailing
views and doctrines80 and that the findings of a qualified
scholar cannot be classified a bidʻa (innovation) even if they
were to go against the majority opinion or seemed
innovative.81
Kamali references the Prophet who advised that people
should make up their own minds and not follow others in
injustice82 and warned them to avoid suspecting the worst
in the speech of others while they can still attribute a
favorable interpretation.83 Kamali asserts that one should
reserve judgment on someone’s statement even if it were
construed to be evil as there might be an extenuating
explanation behind the statement.84 He references Abu
Ḥanīfa (d. 767) who stated that a statement comprising of
99 percent of disbelief but only 1 percent of belief would still
not amount to kufr (apostasy) and Ibn ʿĀbidīn (d. 1836) who
stated that those who passed charges of kufr were
essentially writers of lesser caliber whose works did not
merit high credibility.85
This suggests that instead of judging, caricaturing, and
condemning gay Muslims as those bent on destroying
Islamic values by spreading fāḥisha (obscenity), people
might do better to understand that they might be
formulating alternative less popular opinions based on the
premise of alleviating human suffering by addressing the
basic legitimate human need for companionship and a life
based on mawadda—love and affection.
Conservative Muslims occasionally warn those who seem
to adopt different viewpoints than those present in the
classical jurisprudence tradition. Like Ibn al-Qayyim, they
warn about indulging in raʾy (personal opinion) and hawā
(caprice). According to Kamali, hawā is characterized by
selfishness and pursuit of one’s desire, and bidʻa
(innovation) is characterized by an attempt to distort or
interpret the principles of Islam as one wishes.86 However,
the issue of same-sex unions is not based on whims and on
a deliberate attempt to distort Islamic principles. If
anything, the argument for same-sex unions is made with
the intention to hold the Islamic principle of justice in
providing for the basic need for mawadda (affection) and
intimacy for constitutional gays and lesbians, whose
concerns have not been addressed outside the scope of
liwāṭ.
Moreover, the notions of hawā and bidʻa can be
counterbalanced by the concepts of 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.87 Kamali also refers to khusumah—argumentation
without malice to establish a right denied by the opponent88
and also indicates that even raʾy (personal opinion) that
does not lead to certain knowledge but conjecture, may be
used in cases of emergency when no better alternative
exists and in order to avoid an indefinite delay in the quest
for certainty.89 All of this suggests that instead of being
bogged down by the nature versus nurture debate and
waiting for scientific certainty on issues such as the gay
gene, progress on the concerns of constitutional gays and
lesbians can be made based on the principles of alleviating
hardships, on granting them rights to fulfill their legitimate
need for companionship. Furthermore, those who seek to
thwart the resolution of same-sex unions by charging others
with bidʻa and hawā may well reflect whether in the garb of
defending the tradition, they themselves end up indulging in
baghy and istibdād bi-l-raʾy.
The term mā malakat aymānukum that appears in verses
23:5–7 and 70:29–30 can be revisited to determine if it
could potentially refer to a relationship between two free
members of the same sex instead of a master-slave
relationship on the basis of exegetical and linguistic
analysis. The relevant portion from both these sets of verses
reads as follows.
And who guard their private parts, except before their mates or those whom
their right hands possess . . . (23:5–7 and variant in 70–29–30).90
6 .8 A R G U M E N T BY O BE D I E N C E
Based on Ibn Kathīr’s (d. 1373) words, conservative Muslims
argue that Allah does not enjoin what is not in the best
interests of the people and does not forbid except to protect
people from harm and thus believers have to submit to the
rulings of Allah even if they do not know the reason behind
the ruling. They quote verses 4:64,100 33:36, and 24:51 in
support of this opinion as follows.101,102
But no, by your Lord, they will not [truly] believe until they make you, [O
Muhammad], judge concerning that over which they dispute among
themselves and then find within themselves no discomfort from what you
have judged and submit in [full, willing] submission. (4:64)
It is not for a believing man or a believing woman, when Allah and His
Messenger have decided a matter, that they should [thereafter] have any
choice about their affair. And whoever disobeys Allah and His Messenger has
certainly strayed into clear error. (33:36)
The only statement of the [true] believers when they are called to Allah and
His Messenger to judge between them is that they say, We hear and we
obey. And those are the successful. (24:51)
They also reference a text from Abu Hurayra (d. 681) that
states that the Companions complained to the Prophet that
verse 2:284, a part of which reads, Whether you show what
is within yourselves or conceal it, Allah will bring you to
account for it, asks of them what they are not capable of
bearing. The text from Abu Hurayra indicates that the
Prophet responded that instead of saying we hear and
rebel, they should be responding as we hear and obey. It
is in this context that the subsequent abrogating verse
2:286 was revealed, a portion of which reads, Allah does
not charge a soul except [with that within] its capacity. 103
Conservative Muslims may use verse 2:284 to argue that
believers submit to the ruling of God for their response
should be the one of we hear and obey. However, it is to
be noted that verse 2:284 was abrogated by verse 2:286,
which clearly states that God does not burden a soul beyond
its capacity. Viewed in this light the argument on submitting
without questioning needs to be qualified in light of the
verse that God does not impose more than what a human
being can bear. While some conservative Muslim leaders
may claim that gay and lesbian Muslims can live a life of
celibacy, this ignores their legitimate need to fulfill their
right to a life with intimacy and companionship.
Conservative Muslims apply the argument of submitting
without questioning to reject same-sex unions, arguing that
since a plain reading of the verses on the people of Lūṭ and
the Hadith texts on liwāṭ is clear, any viewpoint going
against the classical grain cannot be tolerated, as it would
mean that one is not submitting to Allah. For conservative
Muslims, ʿaql (reason)-based arguments are irrelevant as
Muslim norms are determined by the text instead of pure
reason. They also indicate that any attempt to justify same-
sex unions would be tantamount to making the ḥarām
(forbidden) ḥalāl (permissible).
However, while the general point on submitting to the
ruling of Allah without questioning is acknowledged, the
argument for same-sex unions is not based on questioning
the reason behind the ruling but rather based on
determining whether a ruling exists in the first place and if
so whether it is applicable to same-sex unions. It is to this
effect that both the relevant verses and the Hadith texts
were explored in previous chapters. Moreover, it is also clear
based on the principles of jurisprudence that in matters of
worship, things are deemed forbidden unless expressly
allowed, whereas in matters of social transactions that
include marriage, things are deemed permissible unless
expressly prohibited. To the extent an express prohibition of
same-sex unions is not to be found in the primary sources of
Muslim knowledge—the Qur’an and the Sunnah—but rather
contemporary conservative scholars derive the prohibition
from the classical prohibition of liwāṭ, which itself is based
on qiyās (analogical deduction) that leads to probable
instead of certain knowledge, the argument of making the
ḥarām ḥalāl is not warranted.
Conservative Muslims reference a Hadith text found in the
collections of Bukhārī (d. 870) and Muslim (d. 875) and
amongst the 40 that have been collected by al-Nawawī (d.
1277). The essence of this Hadith is on leaving doubtful
matters. A portion of this text is presented below104:
That which is lawful is plain and that which is unlawful is plain and between
the two of them are doubtful matters about which not many people know.
Thus he who avoids doubtful matters clears himself in regard to his religion
and his honor, but he who falls into doubtful matters falls into that which is
unlawful.
6 .9 T H E T R IA L A R G U M E N T
Some conservative Muslim leaders concede that sexual
orientation could very well be innate but argue that gays
and lesbians should check their desires and remain celibate
as part of the trials of life, passing which would earn them a
place in heaven. Essentially, gays and lesbians are viewed
as those burdened with a different set of trials than those
faced by the straight population. However, nothing
unreasonable can be deemed Islamic and as such the usual
tests as that of handicap, infertility, cancer, etc. do not
evoke scriptural condemnation. This would mean that the
analogy, as is sometimes made, between handicap and
infertility as a test on the one hand and homosexuality on
the other might be a weak one to make.
Conservative Muslims may allude to the works of Ibn
Taymiyya (d. 1328) in building their case for
homosexuality being a test from God. In his commentary
of chapter 3 in the Qur’an, he comments on the phrase the
people of desire wish that you tilt that while generally
people tilt toward women, some of them would also be
tested in their tilt toward beardless boys. He alludes to the
martyr of love Hadith that states whoever loved and kept
it hidden and did not follow through but remained patient,
then he died a martyr. However, Ibn Taymiyya also
acknowledges the weakness of this text and it is important
to take a holistic view of his opinions on the subject. The
question arises why Ibn Taymiyya and his disciple Ibn al-
Qayyim (d. 1350) did not allow for the legitimate need for a
male inclined toward other males. In this regard, it is
important to understand that they viewed same-sex sexual
expression through the lens of ʾubna (disease) and on the
basis of the understanding that the legal contract for
marriage in their time was not between two equals but
between a master and the subordinate. Indeed, al-Ghāzālī
(d. 1111) attributed a saying to the Prophet that marriage is
riqq (slavery).107
It is clear from Ibn Taymiyya’s words that those who are
tested in a tilt toward beardless youth do not have an
exclusive tilt toward them, but rather have this superfluous
tilt despite having a general orientation toward women.
Indeed, as Kecia Ali writes, most medieval writers did not
consider the desire for youth as an exclusive desire, but the
same that was directed toward women and as such could be
satisfied with opposite gender spouses.108 Likewise, Afsaneh
Najmabadi writes in the context of nineteenth-century Iran
that men were assumed to be sexually inclined to both
women and murdān (young male adolescents) and Dror
Ze’evi indicates that the classical single-sex model of
human body, in which a woman is considered an imperfect
version of man, suggests that sexual desire did not
differentiate according to the gender of the object of
desire.109 As such, the notion of men and women
complementing one another is a modern development in
Islamic thought as a woman was classically viewed as an
imperfect man based on the single-sex model.110
Moreover, by referring to beardless youth, the issue
addressed is one of pederasty instead of a relationship
between two equal partners. Indeed, as noted earlier, Ibn
Taymiyya, in his commentary of chapter 24, asserts that it is
the active partner who has the desire for sex, whereas the
passive partner has no sexual desire except for
disease/affliction, financial reasons, or other aims. This
confirms that Ibn Taymiyya is viewing sex-same
relationships in the context of exploitation as according to
him the active partner pursues the passive partner, who has
no sexual desire for the specific act of homosexual anal
intercourse. It may also be noted that past authorities
assumed nonconsent on the part of males and assumed
consent on the part of females for penetrative sexual
intercourse. The argument made earlier in chapter 2 in the
context of the words dhukran (nonreceptive) and unthā
(receptive) can be evoked to support this line of thought.
This argument also gets bolstered from Ibn Qudāma’s (d.
1223) words in his treatise Al Mughni in the section The
Ḥadd on Liwāṭ that the male is not a place of intercourse
for another male.
Ibn Taymiyya is concerned with a specific sexual act rather
than affection and mercy that are part of an intimate
relationship. As such, it is not clear if Ibn Taymiyya’s
argument on same-sex desire being a test is applicable to
constitutional gays and lesbians, given that he views same-
sex desire in the context of exploitation of beardless youth
or of those passive males who were viewed through the lens
of ʾubna, which, as noted earlier, referred to the disease of
the anus that the sufferer was expected to resist.111
In his commentary of chapter 24, Ibn Taymiyyah states that
if the repentance of the passive partner were not accepted,
then Lūṭ would not have ordered his people to repent.
Commenting on the appropriate cure for ʾubna, Ibn
Taymiyya’s disciple Ibn al-Qayyim (d. 1350) opined that it
would be better for the passive partner in homosexual anal
intercourse to be killed instead of getting penetrated as by
getting penetrated he is dealt a death after which no life
can be wished, although he qualified his opinion by stating
that killing such a person would confer martyrdom on that
person as it be tantamount to a transgression against
him.112
In contrast, Al-Ruḥaybānī states that the passive partner is
better off being killed as he is damaged beyond repair, that
the semen of the active partner would poison his body to
the extent that he would not remain deserving of any good,
and that he cannot be helped by helpful knowledge, helpful
deeds, or repentance.113 He felt that the passive partner in
homosexual anal intercourse has no hope for reform, neither
does he repent sincerely nor does he deserve to be guided
to anything good and that vain would be such a person’s
efforts toward good.114 He seemed to be reflecting the
opinion, as upheld by physicians like al-Rāzī (d. 925), that
ʾubna was incurable, a viewpoint also captured by al-
Thaʻālibī (d. 1038) as the disease which cannot be treated
except by disobeying God. 115 Ibn Kathīr (d. 1373) has
opinions parallel to those of Al-Ruḥaybānī on repentance as
he is noted to have stated in the al-Bidāya wa-l-Nihāya ,
Homosexuality is the worst abomination. . . . Whoever has
this likeness, there is nothing within them that is beneficial
for creation if they remain. So if Allah saves us from them,
our faith and lives will be more righteous. 116
The opinions of Ibn Taymiyya, Ibn al-Qayyim, and Ibn
Qudāma indicate how their opinions on receptive
homosexual anal intercourse were shaped by their cultural
norms and medical knowledge of their times, as such
opinions are not textually substantiated. In other words,
extra-textual reasoning informed their reasoning. Such
extra-scriptural arguments are extremely limited to the
knowledge base of the time of the past jurists. Therefore,
having access to greater extra-scriptural knowledge on
human sexuality and given our social mores, it would be
reasonable to argue that the discourse on homosexuality
be moved away from treating it as a test or illness, and
toward facilitating a healthy life for gays and lesbians.
However, Ibn Taymiyya is also reported as stating that the
Companions had agreed that the participants in sodomy
should be killed and disagreed on the method of killing,117
and as such he is presented as having claimed ijmāʿ on the
death penalty for sodomy. He is also presented as having
claimed the capital punishment for both the fā‘il and maf‘ūl
bih—active and receptive partner—which contrasts with the
Ibn Zubayr text in Section 3.3.5 that the punishment was
that of zinā, that is, unmarried perpetrators of liwāṭ were
lashed and that weakens the claim of ijmāʿ on capital
punishment. Ibn Taymiyya is also reported as
excommunicating the person who denied the prohibition of
sodomy even by ta’wil—esoteric interpretation of the
Qur’an.118 This opinion on there being an ijmāʿ on the death
penalty was earlier rejected by Ibn Ḥazm, although like Ibn
Taymiyya, he was of the opinion that ʻamal qawm Lūṭ was
one of the kabāʾir (major sins)—akin to the consumption of
pork or wine, and like zinā (fornication) and that anyone
who declared these sins as licit was a kāfir (disbeliever)
whose life could be taken.119
However, the claim of excommunication does not hold in
light of Prophetic narratives that forbid declaring another
Muslim as a disbeliever as being a Muslim is solely based on
the recitation of the testimonial of faith. Such a claim also
does not hold as the six articles of faith, which include belief
in God, the angels, books, prophets, the Day of Judgment,
and fate, do not include the belief in ʻamal qawm Lūṭ as
being one of the kabāʾir. Moreover, comparing ʻamal qawm
Lūṭ, which did not have a concrete definition until the jurists
specified its meaning, with the consumption of wine or pork
or with zinā is based on qiyās (analogical deduction) which
can be disproved as noted in an earlier section. Indeed,
many Ḥanafī jurists rejected the analogy between zinā and
ʻamal qawm Lūṭ. Thus the claims of ijmāʿ on the death
penalty, equating sodomy with other acts, or
excommunicating those who uphold the legitimacy of
sodomy are all problematic.
The notion of ʻamal qawm Lūṭ as being one of the kabāʾir is
also problematic especially in the context of Ibn Taymiyya’s
opinion on the tilt toward beardless boys being a test. The
problem arises as ʻamal qawm Lūṭ is viewed as an
abomination perpetrated by a vile people, whereas a test is
usually considered in the context of people who are deemed
as virtuous enough to be accorded a trial from God.
Contemporary scholar Mushfiqur Rahman references
Hadith texts attributed to the Prophet that indicate that
tests are a sign of love from Allah, who sends trials if he
intends good for His servants and does not hasten to take a
person to task if He intends evil.120 Rahman references
verses 2:286, 23:62, 6:152, and 7:42 to indicate that Allah
does not test beyond a person’s capacity to bear that
burden for Allah is not unjust. He references Hadith that
suggests that trials are harder and rewards are greater for
those with strong faiths but they are lighter for those with
weaker faith. Amongst the common types of trials, he lists
sickness and quotes Hadith texts that suggest that affliction
leads to expiation of sins and that patience through
affliction leads to heaven. Amongst other trials, he lists
facing injustice to one’s honor and dignity and that a
believer can take comfort in justice on Judgment Day.
Rahman’s exposition of trials makes it clear that if trials are
not meant to be beyond a person’s capacity, if they are a
sign of Allah’s love, and if they are harder for those with
stronger faith, then viewing the lives of gays and lesbians as
a trial from Allah is problematic on at least three counts.
First, the trial exposition would suggest that in contrast to
the straight population. gays and lesbians have perhaps a
greater threshold to bear a life of celibacy. Moreover, since
even a contemporary conservative scholar such as Abdul
Hakim Murad acknowledges that given that long-term
abstinence fails for most individuals, as they are not super
moral figures, and that most Muslims with a same-sex
orientation would commit transgressions,121 such an
acknowledgment stands in stark contrast to the view that
tests are not meant to be beyond a person’s capacity.
Second, the view of trials as a sign of Allah’s love contrasts
with the conservative Muslim view of holding the lives of
gays and lesbians in contempt. Third, the views of
conservative Muslims that gays and lesbians are to be
scorned stand in contrast to the view that harder tests are
meant for those with stronger faith. In short, viewing the
lives of gays and lesbians as a trial from Allah that is meant
for those with stronger faith contrasts with the popular
conflation of gay and lesbian expression of love with ʻamal
qawm Lūṭ, which is viewed as an abomination. Viewing gay
and lesbian lives through the lens of tests for the righteous
starkly contrasts with viewing their lives through the lens of
abomination. The above suggests that applying the trial
argument to the lives of gays and lesbians is fraught with
several inconsistencies and seems to be as unreasonable to
address a social reality as conflating ʻamal qawm Lūṭ with
the lives of gays and lesbians.
Rahman’s opinion that patiently bearing affliction leads to
expiation of sins and heaven and that one can find comfort
in delayed justice on Judgment Day for violation to one’s
dignity have to be balanced with other opinions on trials
delineated by him. Based on verse 4:97, he indicates that
remaining passive and continuing to suffer is also a form of
injustice that one inflicts upon the self and that since life is a
trust from Allah, it has to be fully utilized. Moreover, he also
indicates that no matter how pious one might be, one must
not give into pride and ask for trials from Allah. In the
context of gays and lesbians, this means that the oft-
churned argument on patiently bearing a celibate life, that
even if the situation seems bleak there is hope and comfort
to be found on Judgment Day, can be replaced by alternate
opinions that indicate that it would be unreasonable and
inappropriate to invoke tests of celibacy based on the
inability to fathom that the classical jurists addressed ʻamal
qawm Lūṭ and not the case of same-sex unions between two
equal partners who are constitutionally and exclusively
attracted to members of the same gender. Moreover,
needlessly suffering celibacy would be tantamount to
inflicting injustice upon oneself and that life being a trust
from Allah ought to be fully lived, which would include
sexual expression based on love, affection, and mercy
between partners joined in a legal contract.
Like Rahman, contemporary writer Ruqaiyah Abdullah
indicates that people are tested to distinguish between
those who worship Allah from those who ascribe partners to
Him, to distinguish between those who believe in the
Hereafter from those who do not, to encourage good deeds,
to allow for making up for sins, and to earn Paradise through
patience and faith.122 She further mentions that Allah tests
his creations through depriving of good health, death of
loved ones or children, removing material wealth, sexual
temptations, poverty, social relationships, and natural
disasters. She also states that when Allah’s punishment falls
indiscriminately on a nation as it is perhaps a mercy for the
innocent who are saved pain and suffering in this world, and
that one can cope with tests through worship, placing trust
in Allah, patience, looking at people who are worse-off, and
detaching oneself from this world.
Abdullah’s description of the objectives and types of tests
and how to cope with them do not seem to make sense in
the context of Muslim same-sex relationships. Many Muslim
gays and lesbians believe in Allah, are involved in
responsible societal conduct, exhibit qualities of patience,
and like other Muslims also strive to eschew unethical
behavior. Sexual orientation toward the same gender does
not seem to fit in the general category of tests including
that of sexual temptations, as that would suggest that God
instilled an exclusive same-sex desire only to expect people
to remain celibate for the rest of their lives, which provides
a picture of an unjust God and paints Islam as a religion that
does not account for the needs of human beings. Finally, the
various techniques of coping with tests are not helpful in the
context of changing one’s sexual orientation. Thus,
transposing the test framework onto sexual orientation
seems unreasonable as the objective, type, and method of
coping with tests do not seem to possess any applicability
to sexual orientation.
In expounding on the aims of the Islamic law, Wael Hallaq
states that none of the attributes that man is born with may
be subjected to legal rulings that would adversely affect
it.123 In the context of long prayers, the Prophet is reported
to have admonished Muʻādh (d. 639) on invoking trials for
people and cautioned people against driving people away
from Islam, and in the context of fasting, the Prophet
asserted, It is not piety to fast during a journey. 124 The
above indicates that if the Prophet has cautioned against
invoking trials from Allah, if excessive hardship is not piety,
and if people’s disposition cannot be subjected to legal
rulings that would harm them, then the prohibition against
gays and lesbians on forming same-sex unions on the basis
of compassion and mercy would go against the spirit of
Islamic teachings.
The argument for celibacy as a test from God can also be
challenged on the basis of the work of past jurists who
rejected the justification of unreasonable suffering as a test.
According to Shāṭibī (d. 1388), hardship is accepted unless it
is continuous or perpetual125 and that patience is
encouraged unless the hardship interferes with reason or
religion.126 Shāṭibī’s work indicates that hardship differs in
intensity according to the circumstances based on the rule,
time, and nature of the act,127 and that rukhaṣ (licenses)
can be provided in cases without there being a basis for
those in the Sharīʿa.128 According to ʿAbd al-Jabbar (d.
1025), useless suffering is evil, that is, if there is no benefit
beyond the suffering and no repulsion of harm greater than
it.129 His work also indicates that if God inflicts pain without
reason but which is concomitant with a reward in the
Hereafter, such an act would still be evil as it would be
useless.130 In the context of ʿAbd al-Jabbar’s (d. 1025) work,
Hourani indicates that it is reasonable for every rational
being to repel harm from oneself.131 In light of such
opinions, the test-based prescription of celibacy cannot be
reasonably justified.
In general, the test argument is limited mainly to individual
cases as opposed to societal issues, where its application
would require further evidence. The commands and
prohibitions in the Qur’an are mainly for the welfare of
humanity and individuals. As such, alcohol is forbidden
because of its harmful effects and therefore it is a test for
the person addicted to alcohol to avoid it even though his or
her body desires its consumption. Allowing the consumption
of alcohol would harm rather than help the addict. Thus, it
may be opined that an alcoholic is tested with addiction and
that he must be helped against his addiction by keeping
prohibited the consumption of alcohol. However, in order for
gay Muslims to accept the test argument, the harm from
same-sex intimacy should be clear, which it is not. Certainly,
unregulated sexual acts in a society have clear harms to
individuals and society, but this is not limited to
homosexuality, and since regulation helps solve the majority
of those issues for heterosexuals, regulation through a legal
contract may also help gays and lesbians. Viewed in this
light, the case for a legal contract between members of the
same gender can be supported.
6 . 1 0 O T H E R A R G U M E N T S BY
C O N T E M P O R A R Y S C H O L A R S
Apart from the above focal arguments, there are several
other arguments that conservative Muslim scholars use to
prevent Muslim gays and lesbians from living a life with the
joy of marital union with their partners. Alluding to the
Qur’anic teaching that Allah does not inflict a burden
greater than the capacity of the individual, it is argued that
having same-sex feelings does not mean that one should
act upon them.132 However, this argument rests on the
premise that the demand for same-sex unions is flimsily
based on feelings, which does not make sense, as lifelong
partnerships are not based on mere whims or fanciful
emotions. Indeed, the case of gays and lesbians with the
constitutional orientation toward members of the same
gender stands in stark contrast to the issue of superfluous
desire and feelings toward male youth that was addressed
by the classical jurists. Moreover, the issue of same-sex
unions is one of a legal contract to bind two parties in
marital union and not one of acting upon whims and desires.
Thus, it is unreasonable to conflate the issue of unbridled
desires with that of a meaningful life with sexual expression
based on love and affection within the bounds set by a legal
contract.
In the context of major sins indulged in so regularly so as
to constitute a lifestyle, some opine that while it would be
praiseworthy to minimize sin, it might be futile and even
antireligious to completely eliminate it.133 It is argued that
willful sin and religiosity are not mutually exclusive and by
referring to a case of the Companion who habitually drank
wine but loved Allah and His Messenger, the point is made
for the context of gays and lesbians that instead of seeking
an interpretation of permissibility, the Companion accepted
his moral frailty with the associated guilt.
However, traditionalists, who might argue that the case of
the Companion who drank was only applicable for those
times when the Prophet was in the process of teaching the
law, might reject the above opinion. Some might argue on
the basis of the Qur’anic verse 53:32 that Allah’s
forgiveness and hence heaven is awarded to those who
avoid major sins. Dr. Khalid Zaheer refers to verses 53:31–
32 and indicates that for those who believe in Allah, it is not
possible to continue to remain disobedient and especially
for the pious, moral failings are not a rule but an
exception.134 As such, the argument on the futility of
stamping out sin may be appropriate for those who are
addicted to alcohol, drugs, or sex; however, such an
argument does not have a bearing on the issue of a legal
contract for same-sex couples as sexual orientation is not
viewed as an addiction but is simply a facet of an
individual’s existence. To the extent that such an argument
helps put a human face to gays and lesbians who are
viewed by conservative Muslims as vile sinners, it might be
useful to inhibit the strong condemnation of gays and
lesbians although ultimately such arguments perpetuate
viewing gays and lesbians as sinners instead of as human
beings with the God-given legitimate need for affection and
intimacy.
Arguing against same-sex relationships, some reference a
Hadith to opine that we must judge based on apparent
matters and that commanding the good and forbidding evil
is both an individual as well as a community obligation.135
Verses 5:44–47 are referenced to indicate that whoever
does not judge by Allah’s revelation is from the ingrates,
wrongdoers, and transgressors, and also references verse
33:36 to indicate that one cannot have an opinion on a
matter on which Allah and His Prophet have already
decreed.
However, the referenced Hadith also indicates that while
apparent matters are judged, the hidden matters are left to
God. Past jurists left issues such as gender identity of
intersex individuals for them to decide and as noted earlier,
scholars like al-Khiraqī even opined that only the intersex
individual could decide about her gender and the associated
orientation. Conservative Muslim scholars seem to conflate
commanding the good and forbidding evil with judging other
people. As noted earlier in chapter 5, this directive is not
clear and scholars usually warn that great wisdom is
required in this regard. Indeed, there is a Hadith text
narrated through Abu Hurayra (d. 681) and recorded by Abu
Dawūd (d. 889) that cautions very strongly through the
punishment of Hell against judging others.136 Referencing
verses 5:44–47 is problematic as by ignoring the message of
tolerance in verse 5:48, such selective quoting
unnecessarily instigates intolerance as verses 5:44–47 were
used by the extremist group Khawārij to declare ‘Ali (d. 661)
and Mu‘āwiya (d. 680) as non-Muslims. Finally, verse 33:36
and other similar verses were addressed in the section on
the arguments based on obedience, where a distinction was
made between following Allah’s decree and ascertaining the
existence of a decree on a matter in the first place. By
bypassing the matter of ascertaining the existence of the
decree in the first place, conservative Muslim scholars go
against the methodology of traditional scholars, who
discussed an issue based on evidence and accepted
opposing arguments as a matter of legitimate difference in
opinion when they could not prove the opposing arguments
completely wrong. In short, judgmental approaches seem to
go against the grain of previous Islamic directives on
matters of presenting a new argument and especially when
the Qur’anic verse 2:44 clearly cautions against judging
other people by stating, Do you order righteousness of
people and forget yourselves.
Some Muslim scholars like to reference Western anti-
LGBTQ arguments to make the claim that same-sex
relationships are not justifiable even within a secular
context.137 These arguments are borrowed from religious
groups in the United States that are politically involved
against the LGBTQ rights movement and whose views of
history, such as the Greeks did not condone same-sex
relationships,138 are shaped by anti-LGBTQ values.
However, for Muslim scholars to quote non-Islamic
arguments is problematic to the extent they critique Muslim
LGBTQ groups on their recourse to secular scholarship and
affirming interfaith groups that support same-sex
relationships. Furthermore, many of the secular arguments
alluded to by such Muslim scholars occasionally clash with
viewpoints in Islamic jurisprudence. For instance, arguments
against same-sex relationships on the basis of infertility are
not countenanced in Islamic jurisprudence, which holds no
bar for elderly and divorced women to get married.
The asymmetrical nature of sexual relationships in ancient
Greece and not between coequal adult males or females
only substantiates the point that the issue of same-sex
relationships was not countenanced in history due to
different medical assessments of same-sex orientation and
different social and cultural mores and as such it would also
have been anachronistic for Muslim jurists to address the
issue of same-sex unions.
Muslim scholars have to be careful when referencing
explanations like dominant mother, absent father that
treat same-sex orientation as pathology or a form of
arrested development, from groups like NARTH. John Thorpe
argues that such psychoanalytic theories have failed to
establish causality between such factors and sexual
orientation for such factors can produce contrary results.139
Such scholars also have to be careful in drawing from the
tradition to substantiate their arguments against gays and
lesbians. As an example, some reference an opinion by al-
ʿAsqalānī (d. 1448) that males whose speaking and walking
is similar to women owing to innate disposition must burden
themselves to unlearn such behavior.140
However, by invoking this opinion, conservative Muslim
scholars conflate sexual orientation with gender expression,
which is a separate issue. One theological model indicates
that the inner soul takes precedence over the outer body
and it is on this basis that Ṭanṭāwī (d. 2010) argued in his
fatwā on gender reassignment surgery that it would be self-
deception to behave in a manner inconsistent with one’s
inner essence.141 Just as jurists acknowledge nationality or
cultural background, both of which are not genetic but part
of a person’s identity, they can view sexual orientation that
cannot be changed or only so at an excessive cost as part of
a person’s identity for sexual orientation can be viewed as a
shakila (inner disposition),142 which takes precedence over
the outer body. Finally, al-ʿAsqalānī’s opinion is a viewpoint
that is not necessarily binding in the absence of clear and
authentic textual evidence and in the absence of any such
restrictions on the mukhannathūn of Medina during the time
of the Prophet.
Sometimes it is argued that in the Islamic worldview
people are not labeled by their sexual orientation or
practices and that human beings are more than sexual
orientation and behavior.143 It is correct that people are
more than their sexual orientation, which substantiates the
point that by obsessively focusing on the singular issue of
homosexual anal sex, conservative Muslim authorities fail to
reasonably address the issue of same-sex relationships that
do not necessarily include that particular activity and go
beyond it to encompass love, compassion, and affection
between the spouses. Moreover, it is not entirely true that in
the Islamic worldview people are not labeled according to
their disposition, for then, classical Islamic discourse would
not have contained terms like khunthā mushkil and
mukhannathūn.
6 .1 1 O N L IN E A R G U M E N T S O F
M U S L IM S L E A D E R S
Influential Muslim leaders who provide online guidance to
Muslim masses have a captive audience that places their
trust on them. Ignoring a careful reading of the texts, such
scholars superimpose the paradigm of liwāṭ in addressing
the concerns of Muslim gays and lesbians. Their general
arguments, which may reflect some of the arguments
critiqued above, are critically delineated as follows.
At the onislam site, a response was presented to a query
on LGBTQ organizations.144 It was asserted that the word
fāḥisha in the context of the verses on the people of Lūṭ
refers to sodomy and lesbianism. The response indicated
that there does not have to be a connection between legal
punishment and sin by illustrating that shirk (attributing
partners to Allah) has no punishment but still remains a
grave sin. It was mentioned that great sins are often
punished in the Hereafter, as the punishment is more
harmful than worldly punishment. Furthermore, the
assertion was made that the umma has reached a
consensus on the prohibition of same-sex sexual conduct as
it destroys the family and clashes with the divine aim of
establishing sexual instincts between males and females
leading toward marriage. Moreover, it was opined that the
main aim of marriage is not sexual desire but to realize
tranquility through love and mercy between spouses. The
Qur’anic verses 4:15–16 were referenced to allude to gays
and lesbians, and it was argued that Hadith texts define
same-sex sexual conduct between two men and between
two women as adultery and also indicate that the Prophet
thrice mentioned Allah’s curse on the one who commits the
acts of the people of Lūṭ. Moreover, the narrative of Abu
Bakr implementing punishment was referenced to mention
the punishment of stoning and burning, and to advise that
Muslims should keep their children away from gays and
lesbians, who are neither fit to attend mosques nor lead
prayers.
Given the critical review of the Islamic texts in previous
chapters, it becomes clear that the above response takes a
very selective view of the tradition, one that supports a
more hardline viewpoint. Even by classical scholarship, the
word fāḥisha has to be equated with liwāṭ through qiyās, an
argument that becomes even weaker for siḥāq as no
penetration is involved. It seems that siḥāq and anal sex
between males, a conduct that cannot be defined by liwāṭ
that involves exploitation or coercion, are superimposed on
the verses on Lūṭ’s people. The response mentions that
greater sins are punished more gravely in the Hereafter, but
then paradoxically presents the worldly punishments of
stoning and burning, neither of which can be substantiated
by authentic Hadith texts. The opinion of verses 4:15–16
flies against classical scholarship. The opinion on there
being a consensus on the issue of gays and lesbians does
not hold as the question was not addressed by classical
scholars, who dealt with the issue of liwāṭ in the context of
ʾubna, exploitation, or coercion. The argument that the aim
of marriage is to foster love and mercy between spouses
and not just sexual desire does not seem to acknowledge
the human dignity of gays and lesbians in establishing
relationships beyond sexual gratification. In light of these
criticisms, it becomes apparent that the onislam response
does not properly reflect the nuanced scholarship of
classical Islam.
In another onislam response, one of the questioners was
advised on giving up homosexuality. 145 Ignoring the
position of mainstream medical and psychology
organizations, those who indulge in homosexual behavior
were equated with those who have been conditioned to
fornicate, commit theft, murder, or those who have become
addicted to pornography. Instead of making an analogy
between sterile couples and same-sex couples, gays and
lesbians were equated with murderers, thieves, addicts, and
those who have sex despite having recourse to marriage.
Such arguments are not unique for many online Muslim
authorities connect same-sex orientation with addiction and
same-sex relationships with imbibing alcohol. Such
conflations by demonizing and dehumanizing gays and
lesbians prevent a reasonable understanding of their issues.
As an example, in Arab societies, often lesbians are
portrayed as drug addicts and promiscuous, which has led
to the coining of the word sharmuta—whore for a lesbian146
—and thus has prevented a reasonable understanding of the
importance of the right to live a life with compassion and
affection with a same-gender spouse.
The tips offered in the struggle to overcome
homosexuality include elements of aversion therapy,
associating the suffering of Hell with same-sex behavior,
reading Qur’anic verses depicting Hell fire, praying for
Allah’s help, desiring to be in the company of the righteous
instead of the wicked, cutting off relations with those
involved in a gay lifestyle, or relocating to a different city
and getting married after repentance. The diagnosis of
same-sex orientation as an addiction and prescription based
on aversion therapy fly against the consensus amongst
mainstream medical and psychology organizations. Given
that aversion therapy prescriptions may cause harm in gays
and lesbians, and since such remedies are the opinions of
an Islamic Studies researcher and not a physician or
psychologist, they cannot be taken seriously as per the
Prophet’s directive to do no harm and to accept no harm.
The response to the query on sexual perversions147
indicates that homosexuality in Western countries puts
men in positions worse than animals, and that the
acceptance of such perversions is against women’s rights
and is tantamount to involvement in filth. In this query,
several Muslim scholars are referred to, including one, who
indicates that homosexuality results from repression that
stems from the misunderstanding that any contact between
opposite genders is sinful, bad friends who exchange
spiritual emptiness, lack of proper sex education,
carelessness in buying anything young people desire,
excessive freedom, lack of monitoring, lack of
understanding of the harms of sexual perversion in this
world and the Hereafter.
This list of explaining homosexuality defies a reasonable
understanding of sexual orientation. It seems to be based
on quack theories and does not account for the consensus
among medical and psychology professionals. While the
explanation that homosexuality is on the rise in the West
because of early sexual experimentation only confirms the
pseudo nature of arguments, it also reflects that such an
understanding is shaped by situational homosexuality that
sometimes manifests in prisons and gender-segregated
societies, both of which are mostly about exploitation and
control through using a weaker person as a surrogate for
women.
The response also alludes to verses 7:80–84 to make the
point that the people of Lūṭ got involved in abnormality, a
claim that is neither supported by the text of these verses
nor supported by classical scholarship that viewed desire for
male youth as natural but superfluous. It is also asserted
that homosexuality is a reversal of natural order. Crime
against women’s rights makes those who practice
homosexuality slaves to their lusts, deprives them of a
decent manner of living and that notwithstanding the
cruelty of Islamic punishments, they are essential to
maintain the purity of Islamic society.
This argument based on the natural order goes against the
grain of classical scholarship that did not view same-sex
desire as unnatural. While other arguments defy a sense of
reasonability, the point on cruel punishments does not fully
account for the Islamic tradition, specifically the Ḥanafī
school that rejected Ḥadd punishment for liwāṭ, as it did not
acknowledge qiyās for the case of punishments.
It is also stated that the homosexual act is against pure
human nature, spreads diseases, affects birth rate, harms
innocent children through rape, and it should be uprooted as
it spreads fisād fī al-arḍ (corruption on earth). It is further
stated that homosexual acts cannot be practiced without
taking drugs and that they destroy the lives of women
whose husbands leave them to practice homosexual acts.
Moreover, it is argued that such reasoning explains the
prohibition of homosexuality and the Hadith on killing the
active and passive partners is referenced along with the
opinion of Mālik, Shāfiʿī and Ibn Ḥanbal on the stoning of
such people regardless of their marital status. Finally, it is
indicated that the testimony of the lesbian cannot be
accepted because of her perversion.
Such arguments conflate fisād fī al-arḍ, usually in the
context of armed groups that spread terror and anarchy,
and child abuse with loving same-sex unions. The other
arguments seem bereft of reasonability and the Hadith that
is quoted has already been demonstrated to be extremely
weak in chapter 3. Moreover, the classical tradition is
selectively parsed by narrating only one strand of opinion
within the three juristic schools and by completely ignoring
the Ḥanafī school of jurisprudence. The response conflates
lesbians with siḥāq done outside the folds of a legal contract
between two women. Moreover, the response reflects the
opinions of scholars who reject the testimony of sinners at
the expense of other scholars who accepted testimony of
sinners under certain situations. Kamali writes that while a
mufti bases his fatwā on religious considerations, a judge
must only look at objective evidence and as such a pious
individual in a court case is not treated differently from an
impious person or one without a religion.148
It has also been noted in medieval Arabic literature that
sāḥiqāt (lesbians) were known to form exclusive, reciprocal
relationships based on love and devotion and that according
to the physician Al-Samawʾal ibn Yaḥyā (d. 1180), who wrote
of the physiological causes of lesbianism, specifically
grinding, through rationales of coldness, shortness,
deficiencies, or illnesses of wombs,149 many Arab lesbians
were writers, poets, scholars, and even Qur’an reciters.150
However, it seems such representations have not been
accounted for in both classical and contemporary juristic
writings where they are viewed quite negatively due to
rulings like the unacceptability of the testimony of lesbians
on account of them being evildoers.
In the query on why Islam forbids homosexuality,151 it is
opined that homosexuality goes against fiṭra of not only
human beings but also animals, causes diseases, causes the
breakup of the family, and leads people to give up work and
study in pursuit of perversions. Whereas the fiṭra-based
arguments were addressed in an earlier section, the other
arguments seem quite unreasonable in light of
contemporary information on human sexuality and sexually
transmitted diseases through unsafe sex practices.
In another response to a query,152 it is indicated that the
people of Lūṭ were destroyed because they made
homosexuality commonplace and acceptable. Verse 11:83
is referenced to depict homosexuals as polytheists and Ibn
Ḥajar (d. 852) is referenced to indicate that lesbianism is a
major sin. However, as argued in chapter 2, if
homosexuality is construed as a major sin, then it is the
rare one that did not get explicitly addressed in the Qur’an
as did kufr, murder, highway robbery, and slander.
Moreover, equating the polytheistic people of Lūṭ with
Muslim gays and lesbians fails due to many reasons
including the fact that the people of Lūṭ rejected God’s
Messenger, exploited guests through demanding them,
forbidding hospitality, engaging in evil deeds in public
assemblies, and committing highway robbery. As such,
instead of the simplistic explanation of making
homosexuality commonplace, it is making such practices
of inhospitality commonplace that provides a reasonable
understanding behind the destruction of a society that was
bent upon exploitation and coercion.
Based on a skewed view of the tradition, it is argued that
the correct punishment of homosexuality is execution by
the sword and that the punishment is severe as intercourse
not permissible under any circumstances is worse than
intercourse permissible in some circumstances. Moreover,
selectively referencing Ibn Taymiyya (d. 1328), it is asserted
that a homosexual can repent and not confess sins to
anyone, and it is further opined that marriage might be
obligatory as a safeguard after repentance. Based on this
and previous chapters, it becomes clear that the response
to the query clearly lacks nuance and fails to look at diverse
sources in the corpus of Muslim tradition. As noted earlier,
Ibn Taymiyya has differing opinions on repentance, and the
issue of severely punishing intercourse impermissible in any
circumstance is countered by the fact that the Ḥanafī jurists
rejected qiyās in Ḥadd punishments. Moreover, as noted in
chapter 5, the reprehensibility of same-sex conduct has to
be understood in light of the extra-textual assumptions
made by the classical jurists, who were informed by the
medical knowledge and social mores of their times.
In yet another response to a query,153 the Companions are
projected as having a consensus that the sin of
homosexuality is greater than that of murder and second
only to kufr. While the issue concerning ijmāʿ was addressed
earlier in this chapter, the issue of homosexuality as a
major sin was addressed in chapter 5 through a critique of
Ibn Ḥazm’s opinion on the issue. Since the issue of same-
sex unions was never classically addressed, the point on
consensus becomes moot, and the point on same-sex
relationships in a legal contract being a major sin is
inappropriate as conflating such unions with liwāṭ, a conduct
based on exploitation and coercion outside the folds of a
legal contract, is unreasonable.
Qur’anic verses are employed to yield unreasonable
conclusions. Based on 7:80, it is argued that no one among
human beings or jinns (fiery creatures) was tested with the
major sin of homosexuality prior to the people of Lūṭ. It is
also argued that since the people of Lūṭ twisted the natural
order, Allah turned their houses upside down. However, as
noted in chapter 2, archaeological evidence indicates the
existence of homosexual practices prior to the time of the
people of Lūṭ and bringing the jinns into the context does
not make sense as their conduct, like that of animals, is
irrelevant to that of human beings. Such explanations are
reflective of reading too much into the verses. Furthermore,
connecting the people of Lūṭ, described as rebellious to God
in verse 21:74 and as polytheist wrongdoers in verse 29:31,
to Muslim gays and lesbians, amounts to lazy analysis and
speculation. The solutions prescribed as cures, such as not
looking at women or movies, always being preoccupied with
worship and emphasizing guilt, also belie a reasonable
understanding of human sexuality.
6 .1 2 C R IT IC A L S U M M A R Y O F O N L IN E A R G U M E N T S
A G A I N S T M U S L I M G A Y S A N D L E S BI A N S
Usually a heated debate erupts in various online forums on
Islam and same-sex unions. The followers of conservative
Muslim scholars and religious authorities vehemently
oppose any recognition of the right of Muslim gays and
lesbians to live a life with affection and mercy with their
partners. While major arguments proffered by online
conservative Muslim leaders and scholars were
deconstructed above, the following provides a critical
summary of several salient points that are usually raised in
online discussions.
One argument raised is that gay Muslims are themselves
responsible for the alienation they bring upon themselves
by hurting the feelings of fellow Muslims through their
brazen activism. Such a line of thought seeks to silence the
voices of gay Muslims through shaming them by putting
down their sexual orientation as deviant desires or by
equating the constitutionality of same-sex orientation with
the genetic component for the urge to murder, consume
alcohol, or engage in sociopathic behavior. Furthermore,
instead of supporting the already vulnerable gay Muslims,
the absurd burden to prove the constitutionality of their
same-sex orientation is placed upon them.
However, tactics to shame and silence Muslim voices that
reflect social changes are not new as Hashim Kamali points
out that past Muslim jurists in the age of taqlīd (imitation)
denounced social changes by deeming them as
aberrations.154 Moreover, deeming something shādhdh
(aberration) is one way to make it not worthy of being
mentioned or considered and instead of furthering dialogue,
such a strategy has the psychological appeal to intimidate
people who disagree with popular opinions.
In line with such scare tactics, instead of equating the case
of gay and lesbian Muslims with that of nonchild-bearing
couples, online discussants equate the sexual orientation of
gay and lesbian Muslims with the proclivities of alcoholics,
sociopaths, and murderers. Apparently, the analogy is made
to fit based solely on the basis of any genetic component
behind the actions of alcoholics, sociopaths, and murderers.
Ignoring the harms associated with alcoholism that include
impairing of judgment and motor functions and increased
violence, reputable Muslim scholars and their followers often
make the analogy between alcoholism and same-sex
relationships as they view both as addictions.
However, equating the case of couples who wish to live in
love and affection with those who seek to inflict harm on
themselves and others simply indicates that gay Muslims
are denied their human dignity and that their human need
for affection is viewed through the lens of addiction,
aberration, and disease. It is here that online Muslim
discussants choose to ignore developments in psychology
and instead prefer to view advances in human
understanding of sexuality through the lens of conspiracy
theories. Paradoxically, while they accept understanding of
transexuality, as advanced by professional psychologists,
they reject the same on homosexuality, which simply
indicates the deep rootedness of their bias on the subject as
shaped by the framework of liwāṭ.
Instead of affording space to gay Muslims, online
discussants expect them to bear the burden of proving the
innateness of their sexual orientation, all the while rejecting
the consensus amongst professional psychologists. In other
words, an unfair task is laid before gay Muslims, which is
nothing but a strategy to avoid reasonably addressing the
issue of Muslim same-sex unions through accommodation
and facilitation. However, it deserves to be noted that the
burden of proof falls on the side that wishes to argue for a
case. To the extent that rejection of the fulfillment of human
need for intimacy through a legal contract violates the
human dignity of Muslim gays and lesbians, the onus falls
on contemporary Muslim scholars and their followers to
establish on what basis they wish to inflict harm on their
fellow coreligionists with a minority sexual orientation by
denying them the right to live in affection, mercy, and
compassion with a same-sex spouse.
This unreasonable position on Muslim gays and lesbians is
often justified through the argument that human reason
cannot be deemed superior to God’s judgment on a
particular issue. However, this is just another device to
silence a reasonable discussion of the subject. According to
Hassan el-Menyawi, the idea that God’s law is immediately
understandable and does not require interpretation
suggests that human beings can directly access the will of
God without biases and subjectivities.155 Such an idea was
not supported by ‘Ali (d. 661) who is reported to have
asserted that the Qur’an does not speak by itself and thus
requires human interpreters.156
According to Abu Ḥanīfa (d. 767), the texts of the Sharīʿa,
unless they relate to ʿibāda (worship), are rational in that
their causes can be ascertained.157 Similarly, according to
al-Rāzī (1209), we can use reason to assert Sharīʿa
norms.158 Both al-Juwaynī (d. 1085) and al-Samʿānī (1096)
justified istdilāl (legal reasoning) by arguing that the
Companions used reason without turning to the foundational
sources of legal authority.159 In a similar vein, according to
al-Qarāfī (d. 1285), maṣlaḥa (public interest) and istiḥsān
(juristic preference) indicate that the authority of reason is
recognized in Islamic jurisprudence.160 Likewise, according
to Allal al-Fasi (d. 1974), the rationale behind God’s law falls
within the bounds of human comprehension.161 Al-Ṭūfī (d.
1316) even held that for fī ḥaqq al-makhlūqīn (matters that
affect the created world) without a rational basis, God’s acts
would be ʿabath (futile).162
With such significance on the authority of reason in the
reading of the texts and in jurisprudence, it would be
inappropriate to adopt an unthinking attitude based on a
reading of the Muslim texts that lacks both depth and
nuance. It would be equally inappropriate to shun a
reasonable view on the right of Muslim gays and lesbians to
live their lives with the same affection with their spouses as
is enjoyed by heterosexual spouses. Some conservative
Muslims, however, may argue that since differential
treatment based on gender is not considered wrong in
jurisprudence, the argument on not discriminating on the
basis of sexual orientation may not be applicable in
jurisprudence.163 Furthermore, the test-based argument is
made that since God does not task beyond capacity, the
prescription of struggling with same-sex desires at the very
least would not be deemed unjust.164
There are several issues in deeming that the prescription
to ask gay Muslims to remain celibate is neither
discrimination nor unjust according to classical
jurisprudence. First, while differential treatment on the basis
of gender does exist in classical jurisprudence, it does not
exist on the basis of ethnicity, which indicates that
differential treatment based on one characteristic does not
necessarily translate to another characteristic of human
beings. Second, even in the case of differential treatment of
women, many such rulings have been subject to change
given the changing socioeconomic conditions. As an
example, the Tunisian legal reforms indicate that if the wife
assumed financial responsibility for the family, her duty of
obedience became moot and that she too had the right of
unilateral divorce and guardianship over children.165 Third,
differential treatment in classical jurisprudence is based on
socioeconomic conditions as opposed to the genuine needs
of human beings. For instance, while the testimony of two
women is deemed equivalent to one man and the conditions
of ʿawra are different for women, the right of women to fulfill
their human need for intimacy through a legal contract is
not impinged. This indicates that justifying discrimination
against gay Muslims by denying them the right to intimacy
is rather based on one’s prejudices and capacity for disgust
rather than the Islamic ethos that upholds compassion,
mercy, and justice.
Justice is a cardinal value in Islam just as its converse—
oppression—is antithetical to the Islamic ethos. The
argument that God does not task beyond capacity so asking
gay Muslims to live a life of permanent celibacy would not
be unjust is problematic on at least two counts. First, the
point that God does not task beyond capacity implies that
He does not ask a lot from human beings in terms of His
laws. His laws are not meant to cause undue or intolerable
ʿusr (hardship) and as such the Sharīʿa forbids ṣawm al-wiṣāl
(continuous fasting) or staying up all night for worship166
and by extension asking people to deny their legitimate
need for intimacy and affection permanently for a lifetime.
Many jurists have shown that God detests an exaggerated
ideal of strictness.167 Ibn Qutayba (d. 884) mentioned that
God has neither set overly burdensome commandments in
religion nor prohibited things solely for the purpose of bi-l-
istiʿbād (subjugation).168 Ayatollah Fadlallah (d. 2010)
indicated that like eating and drinking, sexual practice is a
natural need169 and Wael Hallaq noted that none of the
attributes that a man is born with is subject to adverse legal
rulings,170 which allow one to question the prescription of
permanent celibacy for gay Muslims.
Second, according to Ibn Ḥazm (d. 1064), Allah has not
forbidden anything without providing better lawful
substitutes.171 Ibn Qutayba (d. 884) indicated that while
God prohibited fornication, usury, wine, gambling, and
swine, He respectively allowed marriage, trade, many
beverages, competitive sport, and the flesh of nonpredatory
beasts and birds.172 This suggests that if marriage has been
allowed in lieu of fornication, then the prescription of
permanent celibacy not only imposes undue hardship but
also binds gay Muslims without a reasonable alternative,
both of which violate the Islamic ethos of justice. However,
some may argue that the prohibited item does not
necessarily have an identical ḥalāl counterpart in that
marital sex does not contain the elements of taboo or thrill
associated with fornication or that permissible beverages do
not contain the intoxication feature of wine and thus
marriage to an opposite gender spouse could be the
alternative that the Sharīʿa offers gay Muslims. This
argument, however, is based on the silly notion that there
has to be a ḥalāl equivalent intoxication and taboo or thrill.
It downplays the basic idea that the Sharīʿa provides for the
basic need for intimacy and quenching thirst, which is not
met for gay Muslims through either the prescription of
permanent celibacy or the equally unjust prescription of
marriage to an opposite gender spouse, whose concern in
such a sham marriage is completely sidelined.
Some might admit that the prescription for permanent
celibacy is made on the basis of the fear that if same-sex
relationships were allowed then that would lead to a
slippery slope of allowing for the permissibility of other
conduct like the consumption of wine. Others deny same-
sex unions to gay Muslims as they feel that in doing so they
are being merciful by protecting them from committing a
crime against God and thus from the torments of Hell fire.
Still others question the necessity for a same-sex union in
the first place or claim that because God said so is a
sufficient reason for believers to abide by His rules including
those on the prohibition of homosexuality.
However, it is not clear how allowing for same-sex unions
based on human dignity and justice for a people to meet
their basic need for intimacy would lead to a lifting of
prohibition on wine or for that matter conduct like
pedophilia, bestiality, incest, or prostitution. Consumption of
wine is not a basic human need; pedophilia and bestiality
are respectively a violation of children and species of a
different genus; incest destroys families and relations tied
through blood, semen, or milk; and prostitution even if
consensual simply allows for sexual gratification without a
legal contract and the associated responsibilities.
Likewise, the idea that human beings must be protected,
as an act of mercy, from a God who burns in eternal Hell
those who engage in same-sex intimacy, is based on the
idea that like fornication, liwāṭ was a transgression against
ḥaqq Allah (right of God) as opposed to ḥaqq ādamī (rights
of other humans).173 Notwithstanding the conflation of liwāṭ
with same-sex intimacy confined by a legal contract, the
idea generally propounded is that the greatest sin is shirk
(associating partners with Allah), which is viewed as worse
than murder or rape despite the fact that worshiping idols
does not entail harming other human beings. However, such
a line of reasoning conflates the rejection of Tawḥīd
(oneness of God) with a superficial worship of idols.
According to Kugle, Tawḥīd in general means urging
harmonious unity by rejecting alienation, violence, egotism,
and hypocrisy that keep people fragmented and societies
unjust.174 As such, murder and rape are manifestations of
ẓulm (oppression) that arise as a consequence of rejecting
this unity of all human beings. Viewed in this light, shirk is
not mere idol worship but the source of ẓulm of which
murder and rape are a few manifestations. Thus, denying
same-sex unions, far from being a merciful position, actually
violates the core kernel of Islam of not inflicting ẓulm as a
consequence of belief in Tawḥīd.
Finally, the argument that God says so is a sufficient
explanation for believers violates the premium that the
Qur’an places on faith guided by reason. In fact, the Qur’an
warns against placing blind faith in scholars and preachers
by admonishing against making lords out of scholars and
monks in verse 9:31. Moreover, people in general interpret
the divine command based on what they reasonably
understand to be good, just, and ethical.175
The above critical summary underscores the limitations of
the arguments propounded by online conservative Muslim
scholars and their followers. The critical analysis presented
in previous chapters indicates that the question of Muslim
same-sex unions, that is, the possibility of a legal contract
between members of the same gender, was not entertained
by the classical jurists, who were informed by the social
norms and medical knowledge of their times. Given changed
social mores and advanced medical knowledge of human
sexuality and given the silence of the Muslim texts on the
issue, a case for same-sex unions can be advanced in
chapter 7.
N O T E S
1. Amjad, What is the standpoint of Islam on gays and lesbians?
Understanding Islam Q&A, accessed May 11, 2016, http://www.understanding-
islam.com/gays-and-lesbians/.
2. Bilal Philips, Islam’s Position on Homosexuality, Islamweb, accessed
January 27, 2016. http://www.islamweb.net/en/article/135433/.
3. Mohamed Ghilan, LGBTQIA Islam? February 1, 2013, accessed January
26, 2016, http://mohamedghilan.com/2013/02/01/lgbtqia-islam-2/.
4. El-Rouayheb, Before Homosexuality, 12.
5. Aḥmad ibn ʿAbd al-Ḥalīm Ibn Taymiyya, Al-Istiqāma; MF 11:543; 28:335, in
[ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪ اﻟﻤﻮﺳﻮﻋﺔThe Golden Encyclopedia of the
Prophetic Golden Hadeeth and its Sciences], 2nd edition, (London: Turath
Publishing), CD-ROM.
6. Everett K. Rowson, Homoerotic Liaisons among the Mamluk elite in late
medieval Egypt and Syria, in Islamicate Sexualities, eds. K. Babayan and A.
Najmabadi, (Cambridge: Harvard University Press, 2008), 226.
7. Ibn Ḥazm, Ṭawq al-Ḥamāma fī al-ulfa wa-l-Allāf (Damascus: Maktaba
ʿArafa. 1349 A.H./1929-30 C.E.), 4.
8. Tengku Aḥmad Hazri, Whither ‘Homosexual Rights’? Islam and
Civilizational Renewal 3, no. 3 (April 2012): 543.
9. Personal correspondence with Mark Brustman.
10. Clare O’Farrell, Identity, Michel Foucault, (London: SAGE Publications,
2005), 140.
11. Kugle, Sexuality, Diversity, and Ethics, 195.
12. James Miller, The Passion of Michel Foucault, (New York: Simon and
Schuster, 1993), 245, 252–54.
13. John Thorp, Review article / Discussion: The social construction of
homosexuality. Phoenix 46, no. 1 (1992), accessed January 27, 2016.
http://www.fordham.edu/halsall/med/thorp.asp, 54–65.
14. Muhammad Asad, Road to Mecca, (New Delhi: Islamic Book Service, 2004),
accessed January 25, 2016, http://muhammad-asad.com/Road-to-Mecca.pdf,
298.
15. Corvino, Homosexuality and the PIB Argument, 507.
16. Lagrange, The Obscenity of the Vizier, 189.
17. Sahar Amer, Naming to Empower: Lesbianism in the Arab Islamicate
World Today, Journal of Lesbian Studies 16, no. 4 (2012): 381–97.
18. Vardit Rispler-Chaim, Disability in Islamic law, Dordrecht, (The
Netherlands: Springer, 2006), 117–18.
19. Entry on the marriage of the khuntha, Kuwaiti Encyclopedia of Fiqh.
Translation by the authors.
20. Lange, Justice, Punishment and the Medieval Muslim Imagination, 193.
21. Yasir Qadhi, Dealing With Homosexual Urges: Yasir Qadhi to Muslim
Student, Sex and the Ummah, Muslim Matters, April 13, 2009, accessed January
27, 2016, http://muslimmatters.org/2009/04/13/dealing-with-homosexual-urges/.
22. Hazri, Whither ‘Homosexual Rights’? 544.
23. Qadhi, Dealing with homosexual urges.
24. Rollo Romig, Where Islam meets America, The New Yorker, May 22,
2013, accessed January 27, 2016,
http://www.newyorker.com/online/blogs/books/2013/05/where-islam-meet-
america.html.
25. Andrew F. March, The Uses of Fitra (Human Nature) in the Legal and
Political Theory of ‘Allal Al-Fasi: Natural Law or ‘Taking People as They Are’? Yale
Law School, Public Law Working Paper No. 190. 2009. New title: Naturalizing
Sharīʿa: Foundationalist Ambiguities in Modern Islamic Apologetics, Islamic Law
and Society 22 (2015) 1–37, accessed January 26, 2016,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1500009, 2.
26. Livnat Holtzman, Human Choice, Divine Guidance and the Fitra Tradition-
The Use of Hadith in Theological Treatises by Ibn Taymiyya and Ibn Qayyim al-
Jawziyya. in Ibn Taymiyya and His Times, eds. Y. Rapoport and S. Ahmed,
(Karachi: Oxford University Press, 2010), 176–77.
27. Andrew F. March, Taking People as They Are: Islam as a ‘Realistic Utopia’
in the Political Theory of Sayyid Qutb, American Political Science Review, 104,
no. 1 (February 2010): 197.
28. Anisah Che Ngah, The Position of Informed Consent under Islamic Law,
The International Medical Journal of Malaysia 4, no.1 (June 2005),
http://www.eimjm.com/Vol4-No1/Vol4-No1-H1.htm.
29. Ibid.
30. Joseph Nicolosi and Linda Ames Nicolosi, A Parent’s Guide to Preventing
Homosexuality, (Downers Grove, IL: InterVarsity Press, 2002), 182–85.
31. Truth wins out, NARTH, accessed January 27, 2016,
http://www.truthwinsout.org/narth/.
32. Ali, Progressive Muslims and Islamic Jurisprudence, 173.
33. Ali, Sexual Ethics and Islam, 73, 78.
34. Abdal Hakim Murad, Bayan—a clarification, May 5, 2013, accessed
January 26, 2016, http://www.masud.co.uk/ISLAM/ahm/bayan.htm.
35. Ibid.
36. Ali, Sexual Ethics and Islam, xiii.
37. Farooq, The Doctrine of Ijma.
38. Ibid.
39. Kamali, Principles of Islamic Jurisprudence, 14.
40. Farooq, The Doctrine of Ijma.
41. Kamali, Principles of Islamic Jurisprudence, 320.
42. Ibid, 256, 318–19.
43. We are grateful to Anas Mahafzah for this point.
44. Kamali, Principles of Islamic Jurisprudence, 205.
45. Ibid, 258.
46. Omar Shahid, Muslim and gay: Islam begins to confront the issue, The
Times, November 29, 2012, accessed January 27, 2016,
http://omarshahid.co.uk/2012/11/29/muslim-and-gay-islam-begins-to-confront-
the-issue-the-times/.
47. Tariq Ramadan, Islam and Homosexuality, May 29, 2009, accessed
January 27, 2016, http://tariqramadan.com/english/2009/05/29/islam-and-
homosexuality/.
48. Kamali, Principles of Islamic Jurisprudence, 307.
49. John Boswell, Christianity, Social Tolerance and Homosexuality (Chicago:
University of Chicago Press, 2015), 101.
50. Serious Study Of Leviticus: Has Nothing to do with today’s
homosexuality, Liberated Christians, accessed January 26, 2016,
http://www.libchrist.com/other/homosexual/leviticus.html.
51. Ramadan, Islam and Homosexuality.
52. Sarah Moawad, On Same-sex marriage, What Islamic Law says about the
issues, Islawmix, accessed February, 2014,
http://islawmix.org/election2012/samesex.html.
53. Mufti Muhammad Zubair Butt, What is the status of one who considers
homosexuality to be permissible? Last modified May 7, 2006,
http://attalib.blogspot.ca/2009/05/what-is-status-of-one-who-considers.html.
54. Qadhi, Dealing with homosexual urges.
55. Corvino, Homosexuality and the PIB Argument.
56. When homosexuality hits home Straight Talk.
57. Corvino, Homosexuality and the PIB Argument.
58. Hamza Yusuf, Islam and Homosexuality, YouTube video, accessed
January 27, 2016. http://www.youtube.com/watch?v=5idZNhc-iqc.
59. We are grateful to Mohamed Fadel for this point.
60. Maududi, Towards Understanding the Qur’an, Verses 4:15–16.
61. Lange, Justice, Punishment and the Medieval Muslim Imagination, 193.
62. Kamali, Principles of Islamic Jurisprudence, 265.
63. Hallaq, A History of Islamic Legal Theories, 77.
64. Farooq, The Doctrine of Ijma.
65. We are grateful to Mohamed Fadel for this point.
66. Qadhi, Dealing with homosexual urges.
67. Yusuf, Islam and Homosexuality.
68. Kamali, Freedom of Expression in Islam, 219.
69. Ali, Sexual Ethics and Islam, 39.
70. Kamali, Freedom of Expression in Islam, 220.
71. Ibid, 202–203.
72. Ibid, 202–204.
73. Ali, Marriage and Slavery in Early Islam, 11.
74. Husni and Newman, Muslim Women in Law and Society, 76.
75. Ābādī, ʿAwn al-Maʿbūd fī Sharḥ Sunan Abu Dawūd, Volume 6, 141.
76. Ali, Marriage and Slavery in Early Islam, 182.
77. El-Rouayheb, Before Homosexuality, 124.
78. Ibid.
79. Kamali, Freedom of Expression in Islam, 65.
80. Ibid, 209.
81. Ibid, 138.
82. Ibid, 52.
83. Ibid, 58.
84. Ibid, 60.
85. Ibid, 186, 221.
86. Ibid, 186, 131.
87. Ibid, 131, 146.
88. Ibid, 153.
89. Ibid, 72.
90. Shakir’s translation of the verse as noted in Note in chapter 2.
91. Ibn Taymiyya, Majmūʿ Fatāwā. Tadmuri letter: statement of Imam Aḥmad;
The Chapter of Waqf: the chapter of changing the hady and uḍḥiya.
92. Ābādī, ʿAwn al-Maʿbūd fī Sharḥ Sunan Abu Dawūd 6, 141.
93. Muhammad ibn Abdullah al-Kharshi Al-Mālikī, Sharḥ Mukhataṣar Khalīl,
Ḥadd of zinā and its rule, in [ اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe
Golden Encyclopedia of the Prophetic Golden Hadeeth and its Sciences], 2nd
edition (London: Turath Publishing), CD-ROM.
94. Hūd ibn al-Muḥakkam Al-Hawwārī, Tafsīr al-Hawwārī, Commentary on
verse 23:6, in [ اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe Golden
Encyclopedia of the Prophetic Golden Hadeeth and its Sciences], 2nd edition,
(London: Turath Publishing), CD-ROM.
95. Muhammad ibn Yūsuf ibn ʿĪ sā Ibn Ṣāliḥ Iṭmayyish, Hamayān al-Zād ilā Dār
al-Mīʿād. Commentary on verse 23:6, in اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪ
[The Golden Encyclopedia of the Prophetic Golden Hadeeth and its Sciences],
2nd edition, (London: Turath Publishing), CD-ROM.
96. El-Rouayheb, Before Homosexuality, 124.
97. ʻUmar ibn ʻAli ibn ʻĀdil Al-Dimashqī, Tafsīr Ibn ʻĀdil. Commentary on verse
23:6. In [ اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe Golden Encyclopedia of
the Prophetic Golden Hadeeth and its Sciences], 2nd edition, (London: Turath
Publishing), CD-ROM.
98. Ibn Kathīr, Tafsīr Ibn Kathīr, for 23:6.
99. Ibn ʿUthmān, Muṣannaf Ibn Abi Shayba 5, 537.
100. Al-Nawawī. Riyad as-Salihin (The Meadows of the Righteous), trans.
Ibrahim Ma’rouf (El-Mansoura: Dar Al-Manarah, 2003), 245–46.
101. Why is fasting haraam for menstruating women? Islam QA.
102. The translation of these verses is from the sources cited in End Note 101
and 102.
103. Al-Nawawī. Riyad as-Salihin (The Meadows of the Righteous), 245–46.
104. Ibid.
105. Mohammad Hashim Kamali, (1997) Freedom of Expression in Islam, The
Islamic Texts Society, 54.
106. We are grateful to Peter Gray for this point.
107. G. J. H. Van Gelder, Close Relationships: Incest and Inbreeding in Classical
Arabic Literature, (New York: I.B. Tauris and Co. Ltd., 2005), 115.
108. Ali, Sexual Ethics and Islam, 88.
109. Najmabadi, Types, Acts or What? 276, 285.
110. Ibid, 292.
111. Kuwaiti Encyclopedia of Fiqh, Entry: khunthā mushkil, in اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ
[ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe Golden Encyclopedia of the Prophetic Golden
Hadeeth and its Sciences], 2nd edition, (London: Turath Publishing), CD-ROM.
112. Ibn al-Qayyim. Al-Jawāb al-Kāfī li Man Saʾala ʿan al-Dawāʾ al-Shāfī, in
[ اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe Golden Encyclopedia of the
Prophetic Golden Hadeeth and its Sciences], 2nd edition, (London: Turath
Publishing), CD-ROM.
113. Muṣṭafā ibn Saʿd ibn ʿAbduh Al-Ruḥaybānī, Maṭālib Ū lī al-Nuhā fī Sharḥ
Ghāya al-Muntahā; kitāb al-ḥudūd; bāb al-zinā, in اﻟﻤﻮﺳﻮﻋﺔ اﻟﺬﻫﺒﻴﺔ ﻟﻠﺤﺪﻳﺚ اﻟﻨﺒﻮي
[ اﻟﺸﻴﻒ و ﻋﻠﻮﻣﻪThe Golden Encyclopedia of the Prophetic Golden Hadeeth and its
Sciences], 2nd edition, (London: Turath Publishing), CD-ROM.
114. The reason why the one to whom a homosexual act is done is to be
executed, Islam QA, accessed May 12, 2016, https://islamqa.info/en/84140.
115. Husni and Newman, Muslim Women in Law and Society, 77–78.
116. Ibn Kathīr. The History of Ibn Kathir—Bidaya and Nihaya. Translated by
Abul Fida Imad uddin Ibn Kathir Damishqi (Karachi: Nafees Academy Urdu
Bazaar, 1988), Volume 9, 186.
117. Juferi, The Consensus on Homosexuality.
118. Ibn Taymiyya, Al-Istiqāma; MF 11:543; 28:335.
119. Adang, Ibn Ḥazm on Homosexuality, 14.
120. Mushfiqur Rahman, Islamic Perspectives on Trials and Tribulations. 2004,
accessed January 27, 2016,
https://groups.yahoo.com/neo/groups/InterfaithDialogueCenter/conversations/to
pics/20471.
121. Ali, Sexual Ethics and Islam, 88.
122. Ruqaiyah Abdullah, Overcoming Trials & Tribulations according to the
Qur’an and Sunnah, Last modified August 8, 2010, Serving Islam Team,
http://www.servingislamteam.com/lectures_files/1359314686overcoming%20tria
ls%20%26%20tribulations%20.pdf.
123. Hallaq, A History of Islamic Legal Theories, 182.
124. Ibrāhīm ibn Mūsā Abu Isḥāq Al-Shāṭibī, The Reconciliation of the
Fundamentals of Islamic Law, trans. Imran Ahsan Khan Nyazee, reading: Garnet
Pub. Ltd., 2012, 245.
125. Ibid, 234.
126. Ibid, 239.
127. Ibid, 224.
128. Ibid, 250.
129. Hourani, Islamic Rationalism, 32.
130. Ibid, 75.
131. Ibid, 134.
132. Qadhi, Dealing with homosexual urges.
133. Sherman Jackson, Islam: Between Old Fundamentalism, New
Fundamentalism and Modern Sincerity, American Learning Institute for
Muslims, April 18, 2013, accessed January 26, 2016,
http://www.alimprogram.org/articles/islam-between-old-fundamentalism-new-
fundamentalism-and-modern-sincerity/.
134. Khalid Zaheer, Some Popular Misconceptions of the Muslims, accessed
January 27, 2016,
http://www.khalidzaheer.com/essays/kzaheer/criticism/some_popoular_misconce
ptions_of_the_muslims.html.
135. Dawud Walid, How ‘don’t judge’ has taken a wrong turn among American
Muslims, January 28, 2014, accessed January 27, 2016,
https://dawudwalid.wordpress.com/2014/01/28/how-dont-judge-has-taken-a-
wrong-turn-among-american-muslims/.
136. The Insolent, Hadith Explanation, accessed December 2014,
http://dailyhadith.adaptivesolutionsinc.com/hadith/The-Insolent.htm.
137. Adam Kolasinski, The Secular case against gay marriage, The Tech:
Online Edition 124, no. 5 (2004) accessed January 26, 2016,
http://tech.mit.edu/V124/N5/kolasinski.5c.html.
138. Robert R. Reilly, What Would the Greeks Have Thought of Gay Marriage?
Catholic Exchange, March 11, 2013, accessed January 27, 2016,
http://catholicexchange.com/what-would-the-greeks-have-thought-of-gay-
marriage.
139. Thorp, The Social Construction of Homosexuality.
140. Ali, The Homosexual Challenge to Muslim Ethics.
141. El-Menyawi, Same-sex marriage in Islamic law, 448, 521.
142. Ibid, 462.
143. Ghilan, Islam, Homosexuality & Same-sex marriage.
144. Al-`Alawani, Islam’s Stance on Homosexual Organizations.
145. Kutty, How to give up homosexuality.
146. Amer, Naming to Empower.
147. Yusuf Al-Qaradawi and Muhammad Saalih al-Munajjid, Homosexuality and
Lesbianism: Sexual Perversions, accessed January 28, 2016,
http://www.prophetmuhammadforall.org/webfiles/fatwa/HomosexualityNLesbiani
s.pdf.
148. Kamali, The Sharia: Law as the Way of God, 164.
149. Habib, Arabo-Islamic Texts on Female Homosexuality, 84–85.
150. Amer, Naming to Empower.
151. Why does Islam forbid lesbianism and homosexuality? Islam QA.
152. Can those who have committed homosexual acts be forgiven, and is it
permissible for such a person to get married? Islam QA, accessed May 12,
2016, https://islamqa.info/en/5177.
153. He wants to repent from homosexuality and needs help. Islam QA.
154. Kamali, Principles of Islamic Jurisprudence, 519.
155. El-Menyawi, Same-sex marriage in Islamic law, 396.
156. Ibid.
157. Kamali, Principles of Islamic Jurisprudence, 271.
158. Emon, Islamic Natural Law Theories, 154.
159. Ibid, 128.
160. Ibid, 125.
161. Hallaq, A History of Islamic Legal Theories, 225.
162. Emon, Islamic Natural law theories, 163.
163. Email correspondence with Miqdaad Versi.
164. Ibid.
165. El-Menyawi, Same-sex Marriage in Islamic Law, 480.
166. Kamali, Principles of Islamic Jurisprudence, 447.
167. El-Menyawi, Same-sex Marriage in Islamic Law, 530.
168. Ibn Qutayba, Kitāb al-ashriba wa dhikr ikhtilāf al-nās fīhā, 26.
169. Fadlallah, Jurisprudence of Sex.
170. Hallaq, A History of Islamic Legal Theories, 182.
171. Ibn Ḥazm, Chapter 28: Of the Vileness of Sinning.
172. Ibn Qutayba, Kitāb al-Ashriba wa Dhikr Ikhtilāf al-Nās fīhā, 26.
173. El-Rouayheb, Before Homosexuality, 118.
174. Kugle, Sexuality, Diversity, and Ethics, 234.
175. We are grateful to Mohammad Fadel for this point.
C hapt e r 7
C on c lu s ion
T ow ard a Q u e e r- P os it iv e M u s lim
J u ris pru d e n c e
7 .1 F R O M L IW Ā Ṭ T O S E X U A L O R IE N T A T IO N
It is important to underscore that several past jurists
employed juristic tools like istiṣlāḥ (juristic preference) or
maṣlaḥa mursala (public interest) even in the presence of
clear verses. Given their milieu, it is reasonable to
understand that, while their decisions seem inconsistent
with our socioeconomic realities, the past jurists sought to
protect women and vulnerable segments of the Muslim
society from exploitation. The medieval jurists understood
liwāṭ to exclusively refer to anal intercourse in the context of
men involved with youth or those suffering from ʾubna.
However, as noted in chapter 2, Muhammad Salih al-
Munajjid, a contemporary scholar, conflates this
understanding to same-sex relationships by stating that in
Sharīʿa terminology it (homosexuality) refers to inserting the
tip of the penis into the anus of a male. 5 Past Muslim jurists
viewed the desire to penetrate separately from the action of
penetration in that while the desire was viewed as a
superfluous one directed at youth or the ma’buns, only the
act was subject to the scrutiny of law. As such, the question
of unnaturality would be foreign to Muslim jurisprudence,
wherein, while the maʾbūn was viewed as suffering from an
incurable disease, the desire to penetrate youth was viewed
as the same desire that was directed toward women. In fact,
as noted in previous chapters, past Muslim physicians
sought to provide a biological underpinning for both ʾubna
and siḥāq.6,7
The past jurists provided reasoned positions on the
prohibition and subsequent punishments for liwāṭ. In
contrast to the blanket condemnation of homosexuality by
contemporary conservative Muslims, the past jurists, as
noted in chapter 2, were concerned about the exploitation
of male slaves, men suffering from ʾubna, and beardless
youth. Furthermore, they viewed same-sex acts as taking
place outside a legal contract.8 As such, while jurists like
Abu Ṭālib Makkī (d. 996) and Ibn Ḥajar al-Haytamī (d. 1567)
included liwāṭ in the list of major sins, and the latter even
included siḥāq in that list,9 those instances were defined by
sex outside the folds of a legal contract.
Thus, while the past authorities addressed same-sex acts
outside a legal contract and were concerned about the
exploitation of males and beardless youth, they never
addressed the question whether it would be possible to
have a legal contract between two members of the same
gender. Obviously, this anachronistic question could only be
reasonably brought up in our contemporary socioeconomic
environment defined by our current knowledge of human
sexuality. However, there is some evidence that in some
subcultures marriage contracts were written. Ibn Ḥazm (d.
1064) noted that in the eleventh century while some Muslim
tribes punished homosexuality, others permitted
homosexual relations. 10 Likewise, several tribes in Sudan
had a bride price for boys and in Siwa, marriage contracts
were written between men and boys, where the money paid
amounted to 15 pounds, in contrast to one pound for
women.11 It may, however, be noted that such marriages
were between men and youth in age and status
asymmetrical relationships, in contrast to contemporary
marriage between two equal consenting adults bound by
the responsibilities defined by a legal contract.
It is also important to note that while Sunnī jurisprudence
is clear on its taboo on heterosexual anal intercourse, Shī‘ī
jurisprudence, while considering the act reprehensible,
generally allows for it given the consent of the wife.
However, even the Shī‘ī authorities are concerned about the
welfare of the woman and take a stand to deem the act as
forbidden on a precautionary basis to avoid harm to the
wife,12 who under classical jurisprudence is required to
submit to the husband. As noted in chapter 4, there exist
three strands of texts on ityān fī al-dubur (anal intercourse).
While one strand of texts prohibits the act, the other strand
allows for it. The third strand of texts on anal intercourse,
therefore, maintains a neutral stance. In this regard, Shāfiʿī
(d. 820) is reported to have mentioned through one of his
opinions that there does not exist strong evidence for or
against the act of heterosexual anal intercourse.13
The analysis in chapter 4 indicated that the Hadiths related
to anal intercourse with one’s wife are not strong enough
and also seem to go in opposite directions—acceptance and
prohibition. This inconclusiveness on the issue is also
substantiated by the clear lack of ijmāʿ (consensus)
amongst the early Muslim society on the issue of anal
intercourse with the wife. Therefore, one cannot use the
argument that anal intercourse is Ḥarām in an absolute
manner. As such, the argument of prohibiting anal
intercourse between males in a same-sex relationship also
becomes weak as there is not even a consensus on the act
within a heterosexual context. Regardless, it is important to
underscore that many gays and lesbians do not indulge in
homosexual anal intercourse. In his book Gay and Single
Forever, Steven Bereznai notes that even within the casual
encounters of sexually active gay men, anal intercourse
would only be the fourth preferred activity.14 Thus, the issue
of one particular sexual act should not be conflated with
that of a legal contract for Muslim gays and lesbians to fulfill
the human need for affection and intimacy, like their
straight coreligionists.
Kecia Ali notes the distinction between acts that are
prohibited because of their being intrinsically evil like
bestiality and necrophilia and acts prohibited because of
lack of a legal contract like homosexuality. However, Kecia
Ali also notes that past authorities like Ibn Ḥajar Haytamī
have not made such distinctions.15 It may be noted that one
reason past authorities did not make the distinction was
probably because they believed that bestiality, necrophilia,
and anal penetration (to male or female) were viewed as
one-sided sexual acts aimed solely for the pleasure of the
active penetrating partner irrespective of the status of the
one on the receiving end. To the extent that conservative
Muslims are unwilling to make such distinctions, the move
toward instituting Muslim same-sex unions might remain
controversial. Nonetheless, four arguments for establishing
same-sex Muslim contracts may be advanced.
These arguments become feasible because of the absence
of a narrative in the Qur’an or Hadith that marriage or mulk
yamīn relationships are between two people of opposite
genders. Some may refer to verse 16:72 that indicates that
Allah has made sons and grandsons from azwājikum (one’s
spouses), verses 53:45 and 75:39 that refer to the two
mates—male and female, and that linguistically the word
zawj (mate) refers to the opposite part of a pair to
substantiate their case that marriage is between opposite
gender spouses for the purpose of having offspring.
However, it is also clear that the scope of such verses allow
for exceptions as in the case of the marriage of sterile
couples, elderly women, and the intersex persons.
Moreover, while the word zawj is gender neutral and as such
includes pairs irrespective of gender, the phrase ʿalā
azwājihim used in verse 23:6 indicates that the word ʿalā
connotes the meaning of above or on top and therefore
suggests that addressees are the male partner over or
above the female partners. The observation that the
exegetes understood marriage through the lens of the
partner on the top and the one on the receiving end also
substantiates the argument that same-sex legal contracts
were not feasible in a context based on a hierarchy of power
and as such the question of same-sex unions was not
addressed by the past jurists.
Some past jurists did have a list of entities that Muslim
men could not marry. For instance, according to Ibn ʿĀbidīn
(d. 1836), jurists defined marriage as a legal contract that
allows for lawful sex between spouses in the absence of
lawful prohibitions that include other men, intersexed
people, polytheist women, closely related women, and
female jinn.16 However, such lists were not uniformly
accepted, which is perhaps why some jurists, as noted in
chapter 5, allowed masters to have sex with their male
slaves and others even allowed marriage to Hindu women in
India, who were considered as polytheists by some but
referred to as people of the Book by other jurists. Several
jurists allowed marriage with the khunthā muskhil (intersex
persons), which included Sunnī jurists, as noted in chapter
6, and even Shī‘ī jurists like al-Yazdi (d. 1919), whose work
indicates that a khunthā can engage in relations with a
woman as a man; and with a man as a woman.17
Moreover, in contrast to other jurists, Shāfiʿī (d. 820)
opined that marriage to a daughter born out of wedlock was
not forbidden as based on the rule that the child belongs to
the marriage bed irrespective of biological paternity and
that from the perspective of the law such a girl is not
deemed to be the man’s daughter.18 While Islam is stricter
than Judaism in prohibiting marriage to nieces, Christianity
is stricter than Islam in not favoring marriage with first
cousins19 and treating as incest what would be allowed in
Islam. Furthermore, it is also true that Ibn Ḥazm alluded to
the case of Abraham marrying his half-sister and to the case
of the Khawārij allowing marriage between grandparents
and grandchildren or between uncles and nieces.20
Likewise, the marriage to jinns (fiery creations) was
contested. The prohibition of marriage to jinns includes the
rationales that the spouse has to be of the same kind based
on verse 30:21, the issue of the jinn incarnating in a
different gender, the ability of the man to impose
restrictions on the female jinn, the issue of progeny with jinn
characteristics, and the potential lack of tranquility, peace,
and compassion with the jinn spouse.21 Notwithstanding
these reservations, some jurists considered such a marriage
permissible and even Mālik could not find textual prohibition
against men marrying female jinns.22
Thus, given the absence of a conclusive definition that
marriage is between two people of opposite genders, the
following four arguments are advanced.
7 . 2 T H E A BS E N C E O F A
R E A S O N A BL E A L T E R N A T I V E
The first argument may be based on revisiting the
traditional understanding of verses 23:5–7 wherein the
Qur’an declares that anyone going beyond their spouses or
concubines would be deemed as transgressing limits.
However, the pertinent question to raise here would be
whether a gay individual could really be deemed as a
transgressor if the option of marriage with a female was not
feasible in the first place. According to Ibn Ḥazm,23 and
many other scholars of Islam, nothing in Islam is forbidden
without there being a legitimate substitute for the
prohibited act. Classic examples in this line of thought
include marriage in lieu of fornication and trade in lieu of
ribā (usury). Given the point that there exists no such
alternative for Muslim gays and lesbians, it would be
reasonable to move the discourse on homosexuality from
absolute prohibition to facilitation or legal accommodation
within clear limits. While some conservative Muslims might
claim that not every prohibition is supposed to have a lawful
alternative, it is also true that every hardship has a facility
in that Allah has given a way out as a choice in a
burdensome matter.24 The Qur’anic verses and the
Prophet’s sayings on facilitation of hardships should provide
Muslim jurists sufficient scriptural backing on
accommodating Muslim gays and lesbians in Islam. The
argument for alleviation of hardships will be further
elaborated in Section 7.6.
The second argument may be to distinguish between
homosexuality on the one hand and bestiality and
necrophilia on the other. While traditional scholars do not
differentiate between the two, it deserves to be noted that
the element of consent in the former and the absence of
that consent in the latter should at least differentiate
between the gravity of the two types of conduct. Many
conservative Muslims advance the argument that
accommodation of homosexuality would lead to a slippery
slope of accepting all forms of sexual conduct. However,
sexual conducts like bestiality, incest, necrophilia, and
pedophilia allude to actions as opposed to persons, whereas
homosexuality alludes to individuals.25 Conservative
Muslims believe that homosexuality is an action like the
other forms of conduct and as such the prescription, as for
the other forms of conduct, would be heterosexual
marriage. However, this erroneous juxtaposition of
homosexuality with other sexual conduct would lead to an
unsatisfactory solution for Muslim gays and lesbians. The
crux of the argument is simply that for other sexual
conduct, to the extent that the perpetrator is heterosexual,
the alternative of a heterosexual marriage exists, whereas
for gays and lesbians that option is infeasible or not offered.
It was reflected through Ibn al-Qayyim that the desire for
the same-sex among males was viewed as bereft of love
and compassion. Such an understanding is also common
amongst contemporary conservative Muslims who reduce
the issue of gays and lesbians to that of the permissibility of
intercourse. It is therefore understandable that same-sex
relationships cannot be countenanced within a framework
that views same-sex desire in the absence of compassion
and through the lens of disease. However, this view of
same-sex desire as superfluous, bereft of love, or based on
disease as evident in the writings of the classical jurists was
not based on Islamic texts but instead shaped by the
medical knowledge and social mores of their times. A more
informed understanding of sexual orientation based on the
consensus among medical and psychology professionals
challenges the position of conservative Muslim scholars and
allows for a case for Muslim same-sex unions.
7 .3 T H E Ḍ A R Ū R A ( N E C E S S IT Y ) F R A M E W O R K
Contemporary scholars like Tariq Ramadan have critiqued
relying too much on the ḍarūra (extreme necessity)
framework to address difficult issues in contemporary
times.26 Regardless, many contemporary authorities have
used the ḍarūra framework to address controversial issues.
As an example, the European Council for Fatwa and
Research has used the ḍarūra principle to address mortgage
acquisition despite the fact that the issue is not one that
invokes a life or death situation.27 While recognizing usury
as a major sin and as one whose perpetration is depicted as
waging war with Allah and the Prophet, the Council allows
for home mortgages on the principle of ḍarūra and restricts
this facility to those Muslims in real need for a house. The
Council treats ḥāja (need) on a par with ḍarūra (extreme
necessity) by asserting, Jurists have established that ḥāja
or the necessity or need, whether for an individual or a
group, can be treated in equal terms with ḍarūra or extreme
necessity. 28 It also quotes the Prophet that a spacious
house is an element that constitutes happiness and also
concedes that rental houses would not fulfill all the Muslim
needs, especially in old age given the possibility of
eviction.29
It is sometimes argued, based on linguistics, that the
relevant Qur’anic verse allows for paying interest but not
taking interest. However, some scholars have even
accommodated old pensioners for taking interest based on a
ḍarūra (necessity) framework. Contemporary scholar Khalid
Zaheer states that his mentor Ghamidi holds the opinion
that poor pensioners were very likely not to be considered
sinning if they received interest-based earnings, given that
they had no alternative arrangements to survive. 30 The
parallel case for Muslim gays and lesbians would be no
different.
According to a jurisprudential rule in the absence of
express prohibition, permissibility holds, and according to
another rule necessity trumps prohibition. Traditional jurists,
by referring to verse 2:185, which indicates that God does
not wish to inflict hardship, and verse 22:78, which indicates
that God has not laid hardship in religion, reason that
Islamic law is mindful of genuine public or private needs and
that it allows overstepping even the clear scriptural text
under exceptional situations. The Ottoman Civil Code
Majallah incorporated this notion in articles 17 and 21, and
jurists like al-Māwardī (d. 1058) even considered the maxim
necessity trumps prohibitions as one of the pillars of
Islamic jurisprudence.31 The traditional jurists did not define
need except by indicating that it occurs in the absence of
things that are essential for a healthy, respectable, and
dignified life. In fact, the traditional jurists left it for the
future Muslim generations to define need according to
circumstances and changing times.32 Perhaps, this is why,
following Ghamidi, contemporary scholar, Tariq Mahmood
Hashmi, holds the permissibility of interest-based loans for
lodging in the absence of alternatives,33 and in the context
of left-handedness asserts, The Sunnah has been
established keeping in view the fact that it is natural for
right-handed people to eat with their right hand for the
Sharīʿa does not ignore the natural human built. Similarly
when it is not natural and therefore not easy for a natural
lefty to eat with right hand he is not bound to eat with his
right hand. 34
The fourteenth-century Mālikī jurist Ibn Farḥūn (d. 1396)
proposed a classification of Islamic law that advanced the
pursuit of human needs for well-being.35 Based on
Bouhdiba’s work, a pious son has to help his widower father
marry again to guard his chastity for this duty is no less
important than that of kafāla (food pension),36 which
suggests the significance of the facilitation of human needs
including intimacy. At the popular onislam website, Umm
Zakiyyah asks that by merely providing food, clothing and
shelter to widows and divorced women would all their
needs would be met? She questions how human beings can
suggest a lifestyle bereft of intimate interaction with the
opposite gender when they would not accept such a lifestyle
for themselves.37 Indeed, if that is the case with
heterosexuals then what rationale prevents the posing of
such a question for gays and lesbians? Thus, invoking the
silence of the scriptures, and given genuine human need for
physical and emotional intimacy for a healthy life, any
contemporary position that views same-sex unions with
contempt can be overruled to facilitate the hardships faced
by gays and lesbians and by allowing them to form same-
sex unions.
However, Ibn Taymiyya (d. 1328) referenced verse 7:33 to
opine that shirk (attributing partners to Allah), injustice, and
acts of lewdness are not permissible whether for need or
otherwise for any situation. He believed that since verse
7:33 was revealed in Mecca, the prohibition is absolute as
opposed to the latter prohibitions of blood, carrion, and
pork, where the prohibition is lifted based on dire
necessity.38 Thus, the ḍarūra framework would perhaps not
be applicable to the case of sexuality. Indeed, there is a
reference made to Ibn Ḥajar, who states that even if
fornication were the only way to provide for her food, a
woman could not engage in that activity due to the social
repercussions of the action.39
However, it could be argued that to a limited extent the
ḍarūra framework was applied even to sexuality. Despite
indicating that desires cannot be equated to needs and that
man can survive without sexual intercourse but not without
food, Ibn al-Qayyim (d. 1350) opined in the context of a
person prone to bursting of testicles due to abstinence
during daytime fasting in Ramadan, that he could resort to
masturbation, failing which, he could make use of the hand
of an ajnabiyya (impermissible female) for emission without
looking at her for such a procedure would be analogous to a
female physician touching to treat him.40 Likewise, based on
Khaled el-Rouayheb’s work, the jurist Shihāb al-dīn Aḥmad
al-Ramlī (d. 1550 CE) is recorded to have stated that kissing
the object of one’s affection, usually a woman or a
beardless boy, was a duty if in line with the then medical
theory that such frustration would contribute to the lover’s
death. This observation may lead one to conclude that while
the past jurists predominately addressed liwāṭ, they never
seriously entertained the issue of intimacy between adult
members of the same gender. This conclusion, however,
may be tempered by noting the principle of sadd dharīʻa
(closing the door) according to which if an act leads to a
prohibited act then it is prohibited and as such if intimacy
leads to anal intercourse, assuming the strand of opinion on
the prohibition of anal intercourse, then that intimacy is
prohibited.
In conclusion, the ḍarūra framework might be problematic
as it is usually applicable in life or death situations as in the
case of the lifting of the ban on the consumption of pork
when no other food is available under dire and extenuating
circumstances. In this framework, the act of pork
consumption is still deemed prohibited but it is tolerated
under the extreme need to preserve life. Given that man
can live without sexual expression, the ḍarūra framework
cannot be applied for sexual expression unless there was an
extenuating situation involving the choice between sexual
expression and death as considered by Ramlī (d. 1550 CE),
Ibn al-Qayyim (d. 1350), and others, and even then, the
framework would not be likely helpful in supporting same-
sex unions.
7 .4 T H E M A Ṣ L A Ḥ A M U R S A L A ( P U BL I C IN T E R E S T )
F R A M E W O R K
Shāṭibī (d. 1388) defines ḍarūra as what is necessary for the
fulfillment of worldly and religious interests such that if the
ḍarūra were not fulfilled, a person’s welfare would be
drastically affected and he would be kept from success and
comfort and end up in clear loss.41 On the other hand, ḥāja
is defined as a need, which if not fulfilled, puts a person in
difficulty even if that person can live without it.42 Thus,
while intimacy may not be a ḍarūra (necessity) in that a life
or death scenario does not arise in the absence of its
provision, it is a ḥāja (need) which if not facilitated causes
extreme ʻusr (undue hardship). Indeed, it was noted through
Hakim Murad that most people are not super moral figures
in that long-term abstinence will fail for most individuals.
Thus, it is important to underscore that would it be better
for conservative Muslims to deny Muslim gays and lesbians
the right to intimacy, which would still exist in an
unregulated fashion, or would it be better if they facilitated
Muslim gays and lesbians through the provision of a same-
sex legal contract, which would regulate intimacy just as it
is regulated in the case of straight couples.
To the extent that no satisfactory alternative exists for
Muslim gays and lesbians and given the immense duress
that they experience in their lives, it would be reasonable to
employ tools of jurisprudence to address their plight. The
available tools of maṣlaḥa mursala (public interest) and
istiṣlāḥ (juristic preference) are subject to debate among
Muslim scholars. The debate arises from the differences in
the philosophical outlook of people, in that those who
oppose juristic tools like istiḥsān (juristic preference) view
such efforts as means of circumventing the law on the basis
of hawā (whims), whereas others may use such juristic tools
to root the Sharīʿa aḥkām (commands) on the basis of
equity, maṣlaḥa, and necessity,43 and henceforth support
same-sex unions.
The case for same-sex unions may be critiqued by noting
that maṣlaḥa is supposed to be kulliya (general), in that it
secures benefit for the largest possible number or people as
opposed to a subsection of the community.44 In other words,
the criticism is based on the argument that restricted ḥāja
(needs) for a part of the community are not like universal
ḥāja, which are treated like ḍarūra and as such the principle
of rukhṣa (license) may not apply for gays and lesbians.
However, as noted in Section 7.3, such a criticism did not
prevent the European Council for Fatwa and Research from
treating the need of housing, a ḥāja, on par with ḍarūra and
facilitating a subsection of Muslims in obtaining housing
based on interest-based mortgage in cases where that was
the only option available. Furthermore, such criticisms are
predicated on the assumption that there exists a prior
prohibition on a legal contract for same-sex couples, an
issue that has not been addressed by classical
jurisprudence. Moreover, such arguments ignore the fact
that human dignity and welfare is a central concern of
Islamic law.45
The argument of not facilitating the ḥāja for a subsection of
the community may arise out of the fear that facilitating a
subsection might come at the expense of the decrease in
welfare of the general population. Such fears are expressed
in the case of same-sex unions when it is incorrectly argued
that facilitating gays and lesbians would come at the
expense of the societal order. It could be argued that the
social repercussions of fornication are absent in the case of
homosexuality. In fact, if anything, and purely from a
social perspective, by sanctioning such unions, society
would witness a reduction in such social repercussions
through a reduction in extramarital affairs. This line of
argument may, however, invite charges of using a very
utilitarian perspective on Muslim mores, although such
charges could be addressed by recourse to the maṣlaḥa
mursala framework that kept paramount the benefit of the
Muslim society over the strict application of Muslim law.
Thus, given that accommodating gays and lesbians does
not tear the fabric of the society, the argument of not
facilitating restricted ḥāja in this context cannot be justified.
Moreover, ʿIzz al-dīn b. ʿAbd al-Salām (d. 1263) indicated
that if benefits exceeded harms, then the benefit is
accepted and the harm is tolerated.46 To the extent that the
harms of same-sex unions are negligible, if any, the case for
facilitating gays and lesbians can be supported.
7 .5 F A C IL IT A T IO N O F IN T E R S E X
A N D T R A N S P E R S O N S
The third argument toward Muslim same-sex unions may be
to pinpoint how past jurists accommodated intersex
persons. Conservative Muslims might argue that all sexual
relationships would be prohibited unless expressly allowed.
However, past jurists have established legal contracts for
those other than a strict male and female(s). Paula Sanders
states that past jurists did not consider the marriage of an
intersex person to a cissexual person as prohibited and in
fact casually considered the error of marrying an intersex
person to a woman if the former turned out to be a
woman.47
While the Shafiis and Mālikīs prohibit the marriage of the
khunthā mushkil (intersex person) and the Hanafis allow
their marriage to the opposite gender in the case their
gender becomes certain,48 the Ḥanbalī scholar al-Khiraqī
stated that the khunthā mushkil could marry either a male
or female based on her or his inner disposition. He reasoned
that only the khunthā mushkil was able to make this
decision and that her or his word was to be accepted as the
word of the woman on menstruation is accepted. In the
marriage section for khunthā, the Kuwaiti Encyclopedia of
Fiqh states:
The Ḥanbalīs differed in his marriage. Al-Khiraqī mentioned that the khunthā
decides according to what he says. If he said that he is a man and that he
desires women, then he can do it. If he said that he is a woman and he
desires men, then he can do it. 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 when she says that she has menstruation or the
period. He, the Khunthā, may know himself according to the desires, that is,
based on, which of the two sexes he desires.49
7 .6 T H E JU R IS T IC T R E A T M E N T
O F M A R R IA G E
The fourth argument can be based on noting how the past
jurists understood marriage as a legal contract and then
discerning whether such a framework could be extrapolated
to Muslim gays and lesbians. Contrary to the claims of
conservative scholars, past jurists did not relegate the main
purpose of marriage to reproduction. Many jurists defined
the purpose of marriage, distinctly from reproduction, in
terms of sexual enjoyment.60 In general, classical jurists
viewed marriage as a legal contract to regulate sexual
intercourse for that was the reason that elderly women were
allowed to get married despite bearing no potential for
children.
Among the five main purposes of marriage, al-Ghāzālī (d.
1111) included the satisfaction of sexual desire. In one of
the Shī‘ī Lexicons, the main purpose of marriage is
considered to be included in the meaning of the word nikāḥ
deemed equivalent to the word waṭʾ, which means sexual
intercourse between a man and a woman sanctioned by
marital contract.61 Generally, the word nakaḥa means both
marriage and sexual intercourse, and where the Shafii and
Mālikī jurists upheld the former meaning, the Ḥanafī and
Ḥanbalī jurists upheld the latter meaning.62 Vardit Rispler-
Chaim writes, More pivotal for the preservation of marital
relations than bearing children a child seems to be that the
couple are both healthy enough to engage in physical and
emotional intimacy and in sexual intercourse. 63
In Islam, sex is viewed as having the attributes of kindness,
reciprocity, and generosity64 as is clear from verse 30:21
that reads, And of His signs is that He created for you from
yourselves mates that you may find tranquility in them; and
He placed between you affection and mercy. Sex is viewed
as a natural need and while its social utility lies in
procreation, it is considered as the primary reason for
marriage.65 Sex is viewed as both pleasure and duty, and
the spouse is deemed as harmed if the duty is not fulfilled.66
Several Hadith invoking the sayings of the Prophet have
been used to underscore the importance of marriage in
Islam. One Hadith, circulated in online Muslim sites, has the
Prophet stating, Marriage is my tradition who so ever keeps
away there from is not from amongst me. 67 The reason
perhaps has to do with the regulation of human sexual
need. Where, a contemporary scholar, Moiz Amjad confirms
that wanting to avoid fornication is indeed one of the most
commendable and pious reasons for marriage, 68 another
scholar, Shehzad Saleem, indicates in the context of the
Hadith that angels curse the wife till dawn who refuses sex
to her husband, that refusal of spouses to engage in marital
sex, which puts chastity in jeopardy is disliked by the
Almighty. 69 Thus, anyone who refuses to marry has been
counseled to not fight against human nature.70
So strong is the recognition of the human sexual need that,
in one of his queries, Shehzad Saleem responds to a
questioner, If you think that in spite of all the good
mannerisms found in your fiancé , it is difficult for you to
stand your fiance’s physical appearance, it is better to take
this seemingly harsh step of terminating your engagement
than to psychologically suffer all your life. 71 Khalid Zaheer,
another contemporary scholar, even asserts, Even if we
were to imagine that a husband isn’t quite as careful in his
conduct . . . and as a consequence he gets interested in
another lady to the extent that he wants to marry her, why
should the first wife not be given the option to either live
with her husband, adjusting to the new reality, or leaving
him? 72
According to classical jurists, while the wife may not
dissolve the marriage contract even if the husband suffers
from leprosy, she is allowed divorce in the case the husband
can no longer serve the primary purpose of marriage—
sexual intercourse, specifically in cases of jabb (being
amputated of penis), unna, and khiṣā (castrated).73 Dr.
Aḥmad Kanan understands unna (asynodia), which,
according to classical jurists, is established by a confession
or oath, as a man’s inability to penetrate a woman for
psychological reasons that may include revulsion.74 This
indicates the importance given by classical jurists to the
provision of a legitimate avenue for sexual intercourse and
also provides a justification for same-sex unions for Muslim
gays and lesbians, whose human need for intimacy is
viewed with contempt by conservative scholars.
7 .7 BU I L D I N G A C A S E F O R M U S L IM S A M E - S E X U N IO N S
While some might argue that if some matter such as same-
sex unions is of legal significance, then the Prophet would
have mentioned it because of his obligation to convey the
meaning of revelation as the Qur’an being the word of God
is for all times to come. However, it is also true that being
bound by the socioeconomic and political confines of his
time, there were many issues on which the Prophet could
not directly comment and as such the general principles of
Islam have to be evoked and a decision has to be made
based on ijtihād. This is specifically true given that while the
Prophet encountered the case of the mukhannathūn, the
case of same-sex couples was not presented to him or for
that matter the Companions and the following generations
of the followers and the jurists.
On the basis of the scholarship by Khaled el-Rouayheb and
Kecia Ali and as pointed out in previous chapters, while
classical Islam addressed the issues of liwāṭ and ma’buns, it
did not address the concerns of gays and lesbians and the
issue of a legal contract for same-sex partners. This can be
substantiated by the general observation of Mustafa Zayd
that many circumstances of the modern world have no
precedent in the authoritative Muslim texts.75 Thus, in the
absence of texts that would unambiguously allow for the
possibility of same-sex unions, the overarching principles,
essence, and spirit of Islam have to be invoked to establish
the case for Muslim same-sex unions.
According to Hassan el-Menyawi, past jurists were able to
go against the grain of their societies based on the principle
of ‘adl (justice) as opposed to explicit Qur’anic backing and
jurists like al-Ṭūfī (d. 1316), ‘Abduh (d. 1905), and Riḍā
(1935) advocated deriving rules even if they were not
directly confirmed by the texts.76 Likewise, Kamali asserts
that it is the responsibility of the mujtahid (independent
thinker) to exert himself for the fulfillment of the legitimate
needs of the society and benefit of people even if no
specific authority is found for the purpose of justification77
and that efforts for justice, even in the absence of rulings in
the Sharīʿa, will always be in harmony with the Sharīʿa.78
Part of the final sermon of the Prophet reads, All those
who listen to me shall pass on my words to others and those
to others again; and may the last ones understand my
words better than those who listen to me directly, which
suggests the responsibility of future generations to
contribute to the Islamic tradition. Such texts reject the
tendency of conservative scholars to freeze the Islamic
tradition to the times of the classical jurists and actually
bolster the efforts of Muslim reformers toward change.
The sayings of various Muslim jurists also substantiate this
point on change given new socioeconomic and political
realities. In this regard, eleventh-century scholar al-Samʿānī
stated, Fiqh (jurisprudence) is an ongoing science
continuing with the passage of centuries and changing with
the change of circumstances and conditions of men, without
end or interruption. 79 Likewise, Ibn Ḥazm (d. 1064) is
reported to have stressed that taqlīd (imitation) is prohibited
according to jurists like Abu Ḥanīfa (d. 767), Mālik (d. 795),
and Shāfiʿī (d. 820), a point that was supported by al-
Shawkānī (d. 1839).80
Al-Qarāfī (d. 1285) is quoted as having declared,
Persons handing down legal judgments while adhering blindly to the texts in
their books without regard for the cultural realities of their people are in gross
error. They act in contradiction to established legal consensus and are guilty
of iniquity and disobedience before God, having no excuse despite their
ignorance; for they have taken upon themselves the art of issuing legal
rulings without being worthy of that practice. . . . Their blind adherence to
what is written down in the legal compendia is misguidance in the religion of
Islam and utter ignorance of the ultimate objectives behind the rulings of the
earlier scholars and great personages of the past whom they claim to be
imitating.81
7 .8 T H E C A S E F O R M U S L IM S A M E - S E X U N IO N S
Following the approach developed in this book, the starting
point would be to state that the verses on the people of Lūṭ
are not applicable to contemporary gays and lesbians and
that the Hadith related to the Prophet are suspect and weak.
Having established the silence of the principal sources of
Muslim knowledge, the narratives alluding to the conduct of
the Companions and the understanding of the followers can
be revisited to indicate that the Salaf (pious ancestors) did
not have a consensus on the understanding of later juristic
terms of liwāṭ and Lūṭī. Rather, notwithstanding the weak
traditions, the Companions addressed ʻamal qawm Lūṭ,
which were a composite of apostasy and murder and
perhaps coercive sexual conduct.
It is important to note that every Companion, tabi’i
(follower), and jurist who equated the punishment of liwāṭ
with that of zinā, essentially reflected the understanding
that the analogy of zinā better explained liwāṭ rather than
the story of Lūṭ. Furthermore, every tabi’i and jurist who
prescribed the taʿzīr punishment reflected the
understanding that it was problematic to explain liwāṭ
through the story of Lūṭ or through the analogy of zinā.
Acknowledging the absence of a clear directive from the
Salaf, the next step would be to argue that the jurists while
predominately prohibiting liwāṭ, defined in the context of
ʾubna and beardless youth, did not actually address the
anachronistic issue of a same-sex legal contract. In general,
jurists do not have to mention exceptions in their rulings
that are theoretically present in any general ruling once
valid reasons for the exception are delineated. Thus, the
issue of homosexuality is predominately one of the absence
of a legal contract, which was not feasible in the time of the
jurists, who defined the marriage contract through the
framework of ownership.
Sidelining minority opinions that allowed for sexual access
to male slaves, generally men were not allowed to have sex
with their male slaves as men were viewed as nonreceptive
entities and to get penetrated was indicative of suffering
from ʾubna, a model that originated from Galen, as opposed
to Islamic, texts. However, with increased knowledge of
psychology, the framework of sexual orientation can replace
the outdated ʾubna framework. Moreover, same-sex sexual
acts are not viewed as intrinsically evil as acts that include
necrophilia and bestiality, where the concern is that of the
exploitation of the perceiving party, but rather illegal due to
a lack of legal contract, which substantiates the reframing of
the issue as one of a legal contract for same-sex couples.
While some contemporary scholars may try to dismiss the
case for Muslim same-sex unions as shādhdh (absurd), it is
a valid dissenting opinion based on human dignity and
justice. Moreover, the textual evidence against same-sex
unions is not strong for even if one were to uphold the
prohibition of heterosexual anal sex, it has no bearing on
the issue of a legal contract for same-sex couples and also
because prohibiting anal intercourse with a woman does not
automatically render the extrapolation of that prohibition to
the context of men owing to differences in physiology.
Conservative Muslims may argue against making
permissible the forbidden; however, the converse also holds
true as is reflected in verse 5:87 that indicates to not
prohibit the good things that Allah has made lawful. This
would hold true in the case of same-sex unions on which the
primary texts are silent. While some may argue that the
Qur’an emphasizes opposite gender pairings, verses that
refer to the coupling of Adam and Eve do not universally
prescribe opposite gender coupling for all, as the scope of
the verse is muʿayyan (specific) and not intended to be
ʿāmm (generalized to all individuals).97
Since the Qur’an refers to marriage as mīthāq ghalīẓ (firm
covenant) in verse 4:21,98 matrimonial laws fall in the
category of muʿāmalāt (social transactions),99 which are
subject to changes based on changing social conditions, as
opposed to ʿibāda (worship), which is not subject to such
changes. According to Shāṭibī (d. 1388), matters that can be
rationally understood, in that they are not merely ta‘abbudi
(based on obedience) like worship rituals, and whose
goodness and badness can be known include marriage and
punishments, for which the term bidʻa (innovation) is not
applicable.100 With social changes, marriage is no longer
viewed as riqq (slavery) in that the husband does not own
the wife, which is perhaps why contemporary Muslims do
not support the Ḥanafī position to allow forcible sex with a
wife when she does not have a legitimate excuse.101
Indeed, in popular Egyptian culture marriage is not referred
to as ‘aqd nikāḥ (legal contract for marriage or sexual
intercourse) but as ‘aqd qiran (legal contract for marriage or
union) and the spouse is referred to as sharīkat/sharīk
hayati (my life partner).102 In contemporary times, social
changes include women being better off economically than
their husbands, and also the reframing of marriage as a
contract between two equals as opposed to between a head
and a subordinate. Therefore, given that the marriage
contract is modified to include two equal partners, the case
of same-sex unions is justified on the basis of the ethos to
alleviate human suffering and to uphold human dignity.
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) and as
such, on the basis of Qur’anic verse 4:19 that teaches that
contracts be based on mutual consent, and given that
consent alone creates binding rights and responsibilities,103
the case for same-sex unions can be justified. Likewise,
according to the Ḥanafī jurists, a valid contract requires
freedom of ikhtiyār (choice) and riḍā (consent) which is
defined as real willingness,104 which substantiates the point
that a legal contract for same-sex couples based on mutual
consent can be justified. In this regard, the Tunisian family
law reforms that view marriage as a contract and that
stipulate the feasibility of marriage only through consent
provide a model for same-sex unions.105
Same-sex unions can be justified on the basis of the values
espoused by the Qur’an on marriage. In verses 30:21 and
2:187, the Qur’an views marriage as forming the basis of
mawadda (affection), raḥma (compassion), and as an
institution through which spouses find tranquility and
companionship as they become a libās (protective garment)
to each other, guarding their dignity and honor.106 Same-sex
unions can also be supported on the basis of verse 9:71 that
depicts mutual protectorship of men and women and verse
2:187 that depicts cooperation and harmony between them
instead of verse 4:34 that focuses on male providership.107
Thus, given that the Quran allows marriage for the purpose
of contentment, mawadda, and compassion, and 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.
7 .9 L IM IT A T IO N S T O M U S L IM
S A M E - S E X U N IO N S
Some may argue that Muslim same-sex unions cannot be
justified on the basis of the classical understanding of
marriage. They feel that such unions could not be covered
by the rules and restrictions that are usually associated with
marriage. They would question the application of ‘idda—a
woman’s period of waiting after divorce or death of the
husband—to same-sex relationships and the associated
issue of who gets to offer support money during the ‘idda.
Other questions include which of the spouses would pay
mahr (mandatory payment paid to the bride), would gays
and lesbians be also allowed for a maximum of four spouses
and could a bisexual take spouses of both genders, who
would be the protector and held responsible for providing
for the family, who gets the right to divorce, which of the
spouses would have a walī (custodian), who would be the
maḥram (unmarriageable kin) and before whom would the
gaze have to be lowered, would someone else be allowed in
the home when the spouse is away, and finally do explicit
scriptural texts exist that ban same-sex incest with fathers
and brothers just as they exist for mothers and sisters.
However, all such questions emerge from an
understanding of marriage rooted in patriarchal norms that
prevailed during the times of the classical jurists. As noted
earlier, marriage falls under the rubric of muʿāmalāt and not
ʿibāda and as such all these regulations are subject to
change based on time, location, and circumstances.
Furthermore, applying rules without regard to the spirit
behind those rules can at times lead to unreasonable
situations. This indicates that the purpose behind the rules
can guide their applicability in cases that do not fit regular
situations and circumstances. In the context of rules
pertaining to marriage, the purpose behind ‘idda 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. The contemporary understanding of
mahr can be radically distinguished from that of the
classical jurists, who viewed it as the price offered to have
exclusive access to the vulva. Also, in pre-Islamic Arabia
mahr, a practice selectively sanctioned by Islam was the
compensation that was paid to the bride’s family to deem
her offspring as part of the husband’s tribe as opposed to
that of her father and brother.108 Given that marriage is no
longer viewed as an ownership-based contract and that
offspring are not a necessary part of marriage, the
understanding of mahr can be recast through its symbolic
value and in cases of economic inequality between the
spouses, the one who is better off socially and economically
can offer it to the other spouse.109
Nikāḥ is a legal contract, which means stipulations can be
made in an egalitarian setting that is radically different from
times where the female was entirely dependent on the male
for sustenance. This indicates, as has been observed in the
Tunisian family law reforms, that stipulations can be placed
in marriage 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 as opposed to the husband, who was
traditionally required to provide for the family. Such family
reforms allow for the facilitation of the procedural concerns
regarding same-sex unions. The issue of lowering the gaze
concerns modesty and is irrelevant to the sanctioning of
same-sex unions. 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,110 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,111 ties between people established due to blood,
milk, and semen prohibit sexual relationship between them.
Likewise, Afsaneh Najmabadi confirms that the transfer of
bodily fluids as milk or semen is indicative of close kinship
and hence prohibitive of marriage.112
In conclusion, such limitations can all be reasonably
addressed and as such they do not pose a hindrance to
establishing Muslim same-sex unions.
7 .1 0 R E C E N T D E V E L O P M E N T S IN M U S L IM
C O M M U N IT IE S O N S A M E - S E X U N IO N S
While conservative Muslims have largely sustained the
viewpoint of not accommodating same-sex unions, some
amongst them have come out strongly against homophobia.
Differentiating between a sin and crime and alluding to the
absence of a Qur’anic punishment, prominent Sunnī and
Shia scholars in India like Asghar Ali Engineer (d. 2013),
Maulana Nadvi, and Maulana Rizvi have favored the
decriminalization of homosexuality. 113 Their views have a
precedent in the Tanzimat Ottoman reforms, which
decriminalized homosexuality in 1858.114 In Pakistan, while
upholding the traditional position on same-sex unions,
Shehzad Saleem has movingly expressed that gay Muslims
might be nearer to God than many of the righteous we see
around us. He has eloquently stated, What right have we
to malign and abuse them and regard them among the
untouchables. Is this not vanity and overinflated self-esteem
on our part? 115
In Europe, France-based Imam Tarek Oubrou116 and
Netherlands-based Imam El-Ouazzani117 have clearly
condemned attacking, insulting, or despising gay people.
The late Imam Zaki Badawi118 in the United Kingdom went
so far as to state that provided they remained chaste, gay
Muslims could benefit from civil unions. Sudan-based Sheikh
Hashim Al-Hakim has indicated that while he used to be
hard against homosexuals, he has learned to respect
their humanity. Likewise, Bangladesh-based mosque leader
Sheikh Abul Kalam Azad has sympathized with the suffering
of gay Muslims.119
In the United States, Imam Johari Malik expressed, It’s
time to get past our homophobia to help human beings, 120
and Imam Suhaib Webb expressed regret on his referral to a
reparative therapy group and argued against the
discrimination of gay Muslim congregants.121 Dr. Maher
Hathout (d. 2015), a retired physician and founder of the
Muslim Public Affairs Council, discussed how gays are not
given an outlet for sexual expression in Islam and how
Muslim families, struggling to reconcile their child’s sexual
and religious identity, can be compassionate toward their
children.122 Ayman Fadel wrote a moving piece on how he
abandoned acquired homophobic behavior and attitudes. He
asks if straight Muslims can at least recognize that the
party line does not make a lot of sense in today’s world,
that there are no amulet-based cures for sexual orientation,
and that gay Muslims should not be pressured into
fraudulent marriages.123
Muslim academics like Omid Safi and Mohammad Fadel
have even expressed support for same-sex marriage in a
secular North American context. Omid Safi wrote an article
on why he supports same-sex marriage by indicating, I
have seen these families show the same love, affection, and
attention on their children that my own heterosexual family
does. Love is love. Family is family, though they come in
different shapes. My children have gay and lesbian friends.
They belong [sic] a social club at school that is an alliance of
straight, gay, lesbian, and bi-sexual students. 124
Likewise, in the context of the 2012 elections in the United
States, Mohammad Fadel expressed, We can support the
idea of same-sex marriage because what we want is to
make sure that all citizens have access to the same kinds of
public benefits that other people do. . . . Islamic law can at
least qualify the endorsement of the idea, at least in the
context of democratic, non-religious states. 125
Muslim law has always contained majority and minority
opinions, especially on controversial issues. As such, in
contrast to conservative Muslims, progressive Muslims fully
support same-sex unions. In the United States, Imam
Khaleel Mohammad has stated that there is cause to
reinterpret the relevant Qur’anic verses on the issue.126
Whereas, Dr. Arash Naraghi has gone further to explore
theological accommodation for gay Muslims.127 Spain-based
Abdennur Prado has stated that the scriptural texts do not
refer to loving relationships but rather inhospitality and rape
of foreigners.128 In Indonesia, Dr. Siti Musdah Mulia and
other Muslim scholars were reported to have concluded that
same-sex orientation was from God and that same-sex
relationships were permissible in Islam.129 Likewise, the
Grand Mufti of Zambia, Sheikh Assadullah Mwale, has
asserted on LGBT Muslims that, you were created the way
you are and therefore everyone is allowed in Islam and
very much welcomed. 130
Muslims for Progressive Values (MPV) in the United States
and Universalist Muslims in Canada have come out in full
support of same-sex unions. Pamela Taylor of MPV stated
that condemning gay Muslims to celibacy would go against
the fundamental Islamic ideals of fairness, equality of all
human beings, compassion and mercy.”131 Progressive
Muslims of varying theological backgrounds have created
spaces that are inclusive of LGBTQ Muslims, such as the el-
Tawhid Juma Circle Unity Mosques, MPV Unity mosques and
Inclusive Mosque Initiatives.132
7 .1 1 T O W A R D D E R I V I N G R E A S O N A BL E C O N C L U S I O N S
F R O M T H E S C R IP T U R E S
While in North America and Europe, some Muslims have
adopted more lenient positions on same-sex unions, in
many Muslim countries, cultural taboos preclude a rational
assessment of the concerns of Muslim gays and lesbians. To
this end, one could state that on other controversial issues
like Muslim testimonial laws, several contemporary scholars
genuinely grapple with the texts without being precluded by
any cultural taboo. In fact, it might be instructive to view the
following excerpt from Dr. Khalid Zaheer, a contemporary
Islamic scholar in Pakistan, on the issue of testimonial laws.
Is the need to have two women instead of one man still relevant today when
there are many women who have become professionals in the field of finance
and they are much less likely to forget financial issues than many of the men
who are non-professionals in this field? I think it is a tough question, far
beyond my domain of competence. I don’t want to see the Qur’anic formula
changing, but then I do understand that there was a definite reason why it
was needed. Perhaps the fact that ladies are getting professional expertise in
these fields is not in line with the ideals of Islam. I do not know. I invite you to
think about it and give your opinion on the subject. Forgive me for being
unclear here.133
7 .1 2 C O N C L U D IN G R E M A R K S
We have argued that the principal sources of Muslim
knowledge—the Qur’an and the Hadith—do not address the
issue of same-sex unions. The texts address ʻamal qawm Lūṭ
in the context of the people of Lūṭ, whose actions depict
coercion, inhospitality, and exploitation. Any ruling on same-
sex unions based on such texts is made through qiyās
(analogy), which is contestable, as believing Muslim gays
and lesbians with an exclusive orientation toward the same
gender and whose concern is of the basic human need for
affection, intimacy, and companionship cannot be
reasonably compared to a people who engaged in highway
robbery and evil deeds in public assemblies by approaching
unwilling men traveling through their land.
We also argued that past jurists addressed liwāṭ in the
context of male slaves, beardless youth, and men suffering
from the ʾubna disease. Moreover, they addressed liwāṭ
outside the folds of a legal contract. For them, while the
penetrated partner was diseased, the penetrator was acting
on superfluous desire, that is, the same desire that was
channeled toward women. Thus, past jurists did not address
the question of a legal contract between members of the
same gender, outside the context of disease. It is important
to note that contemporary Muslim scholars and the masses
look at homosexuality very differently from the traditional
scholars, that is, with contempt, especially for the receptive
male partner. Contemporary scholars prescribe permanent
celibacy to Muslim gays and lesbians as a test or trial from
God. Such a vision is alien to the classical scholars of Islam.
In terms of the issue of heterosexual anal intercourse, we
argued that there is no ijmāʿ (consensus) on the prohibition
of the act, which was addressed in the context of unwilling
receptive partners, who were deemed to be harmed by the
act. However, even the assumed prohibition of anal
intercourse between husbands and wives is not readily
transferable to between two men bound by a legal contract,
given the physiological difference between men and women
due to pleasure derived from the massage of the prostate
gland. Furthermore, even the blanket prohibition on anal
intercourse should not affect the issue of Muslim same-sex
unions, as they are not defined by a single sexual act. In
terms of nonpenetrative sexual acts within a legal contract,
we argued that such acts cannot be construed as qubḥ (evil)
as they do not possess the features of ẓulm (oppression).
We deconstructed the arguments used by contemporary
scholars that include, among others, viewing the human
need for intimacy through the lens of urges and whims,
depicting Muslim gays and lesbians as going against fiṭra
(nature), making analogies with unethical sexual conduct
that include bestiality and necrophilia and invoking ijmāʿ
(consensus). We argued that permanent celibacy is an
unreasonable prescription that violates the Islamic emphasis
on ird (human dignity) and ‘adl (justice). Furthermore, in
light of our better understanding of human sexuality, we
argued to shift the discourse from that of ʾubna to that of
sexual orientation. Based on the jurisprudential principles of
raf‘ al-harj (repelling harm) and maṣlaḥa (public interest)
that eventually rest on promoting ird (human dignity) and
‘adl (justice), we argued for facilitating Muslim same-sex
unions. We also argued that the limitations to same-sex
unions in terms of rules related to marriage, modesty, and
sexual misconduct can all be reasonably addressed and that
they do not pose a hindrance to establishing Muslim same-
sex unions.
We acknowledged some positive changes that have taken
place in Muslim subcultures, specifically in North America.
However, much more remains to be done in terms of
creating spaces for queer Muslims. We strongly exhort
contemporary Muslims to abandon outdated constructs of
ʾubna and reasonably facilitate the human need for
intimacy, affection, and companionship for Muslim gays and
lesbians who, after all, are our own sons and daughters,
brothers and sisters, and part of the Muslim faith-based
family. We invite them to reject invoking needless trials and
support Muslim same-sex unions on the basis of the cardinal
Islamic values of ‘irḍ (human dignity) and ‘adl (justice).
Indeed, given that Islam allows marriages for elderly women
and sterile couples to realize the benefits of intimacy,
affection, and companionship, there seems no reasonable
argument against allowing same-sex couples to realize the
same benefits within a legal contract.
We invite Muslim academics and jurists to help alleviate
human suffering, based on the teachings of the Prophet,
who is reported to have said, “Facilitate and do not cause
difficulties and do not cause people to detest (the Islamic
law), but treat people like brothers. 138 We invite them to
protect the self-worth and humanity of gays and lesbians
from the sermons of fiery Imams and to safeguard both
their virtue and imaan (faith) from the vacuous alternatives
they face in cloistered or sinful lives lived under immense
duress. We leave our readers with a reminder from Ibn
Taymiyya. 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 Ḥarām, then it is time for the scholars to
think again about their conclusions. 139
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In d e x
Abdullah, Daayiee, 44
Abdullah, Ruqaiyah, 194
Abu Ḥanīfa, 18, 32–33, 38, 127, 132, 140, 173, 205, 229
Abu Hurayra, 69–70, 74–78, 100–101, 108, 129, 187, 197
‘adl, 229, 239, 240
Al-Āmidī, 3, 17, 147, 171, 181, 225
Al-aṣl fi al-ʾabḍāʿ al-taḥrīm, 14
Al-Bayḍāwī, 27–28
Al-Dasūqī, Muḥammad, 6
Al-Ghāzālī, 16, 21, 47, 104, 112, 140, 175, 183, 190, 225, 227
Ali, Kecia, 15–17, 52, 131, 141, 174 190, 217
Al-Kindī, 5, 120
Alli, Habeeb, 20–21, 24
Al-Munajjid, Muhammad Salih, 6, 11, 216
Al-Oadah, Salman, 23
Al-Rāzī, Fakhr al-Dīn Abu Abdullah Muhammad ibn Umar ibn al-Ḥusayn at-Taymī
al-Bakrī at-Ṭabaristānī Al-Rāzī, Tafsīr, 26–29, 33–34, 36, 40–42, 47, 55, 111–12,
205, 226
Al-Rāzī, Muhammad ibn Idris ibn al-Mundhir al-Hanẓali. Al-Jarḥ wa-l-Taʻdīl, 5, 120,
128, 136, 139, 191
Al-Ṭabarī, Abu Ja‘far Muhammad ibn Jarīr, 25, 28–30, 35, 40, 55, 77, 108, 134,
141, 155, 226
Al-Turayri, Abd al-Wahhab, 19, 23
Al-Zamakhsharī, 27, 30, 36
Amer, Sahar, 5, 15
Baṣrī, Hasan, 20, 91
Boswell, John, 5
Boyarin, Daniel, 15
El-Menyawi, Hassan, 205, 229
El-Rouayheb, Khaled, 25, 38, 49, 119, 121
El-Shinqiti, Mohamed el-Moctar, 25, 69, 80, 124, 148
Ghamidi, Javed, 24, 123, 221