In the wake of the recent U.S. Supreme Court ruling, Muslim academic Jonathan Brown argued that Muslims would respect same-sex unions if sharia-based marriages were respected in return.
He rejects the case for Muslim same-sex unions for reasons that include the classical definition of marriage, texts on Lot's people and the allied prohibition of anal sex.
He uses the static definition of marriage in the sharia as a legal contract, in which the male provides financial support for exclusive access to vaginal intercourse.
However, Muslim legal contracts are subject to change as is true with matters related to muamalaat (social transactions). Indeed, not many Muslims are willing to define mahr (dower price) as thamam al bud (vulva price) or restrict the movements of their wives, as was allowed in such legal contracts.
Brown argues that "inclinations" have no legal import in the sharia. However, the emphasis on inner constitution over external genitalia allowed past jurists to sanction marriages of the khuntha mushkil (intersex persons) to cissgender persons. This framework of khuntha nafsiyya (psychological intersexuality) is not limited to correction of gender and is broad enough to include the LGBT.
Brown argues that the Qur'an expressly deals with sodomy through the verses on Lot's people. He references the phrase "approaching men with desire instead of women" and invokes consensus on the prohibition of anal sex.
However, in contrast to an atomistic view of the verses, a holistic, linguistic and contextual analysis presents a completely different viewpoint. Verse 29:29 mentions highway robbery and verse 15:70 alludes to inhospitality.
Superimposing these verses onto the LGBT leads to unreasonable comparisons with Lot's people. How many same-sex couples are observed to forbid their neighbours from entertaining travelers or ambush their homes to access their guests?
Classical jurists were clear that the active partner approached the receptive partner out of a superfluous desire that would have been satisfied with females. They viewed the receptive partners as suffering from ubnah, a disease of the anus. While such opinions eventually became normative, they emerged from sources extraneous to Islamic texts, from Hellenistic medical models.
It is in this context, jurists read the phrase "approaching men with desire instead of women" to opine that men should not approach other men, who in general are not receptive to such advances, instead of women partial to such overtures.
However, the language of the text on general categories allows for exceptions such as the khuntha mushkil and the LGBT. Ignoring such exceptions, leads to the unreasonable conclusion that gay men should pursue women. Thus, making these verses about the LGBT and about the anachronistic issue of same-sex unions seems like an irrelevant exercise in hermeneutical gymnastics.
Given the obsession with anal sex, it is forgotten that these verses were meant to comfort the Prophet in Mecca. Exegetical literature mentions that like Lot, he did not have surviving male offspring and his daughters were married to disbelievers. Like Lot's people, the Meccans prohibited the Prophet from outsiders lest he forged alliances. Eventually, just as Sodom was turned upside down, so too was the Meccan social order where the oppressors slid down the social scale and the poor Muslims rose in prominence.
There exists no ijma (consensus) on anal sex, as scholars opined that there exists no textual proof for or against the act. This allowed minority Maliki and Shii jurists to hold permissive views on anal sex. Some jurists even used the phrase malakat aymanukum (ownership of the right hand) to include male slaves.
Given textual weakness, some scholars resort to extra-textual reasoning to prohibit the act. Such reasoning includes noxiousness and harm to the wife, as it is assumed that pleasure accrues only to the husband.
However, morality is not based on our capacity for disgust and pleasure due to the prostate gland renders the harm argument void. Finally, even if anal sex is deemed prohibited, the case for same-sex unions does not hinge on a single sexual act.
Brown conflates LGBT concerns with pederasty by stating the prohibition on gazing male youth. He also mentions the range of classical punishments for sodomy. However, several jurists have argued for the decriminalization of homosexuality for reasons that include the weakness of texts, flawed analogy with zina (fornication) and the opinion that secular harms of some sins are inconsequential.
In short, the tradition focused on anal sex in the context of pederasty, disease and superfluous desire and on legal contracts based on subordination. However, the extra-textual medical model has shifted from ubnah to that of sexual orientation. Likewise, legal contracts are based on life partners instead of subordinates.
Same-sex relationships do not seem to fall under the category of qubh (evil), which is defined through injustice, oppression and falsehood. Thus, if the benefits of marriage that include intimacy, companionship and mawadda (affection) can be realized for sterile couples, khuntha mushkil and elderly women, then there does not seem a reasonable justification to prevent LGBT Muslims from accessing the same.
According to Behnam Sadeghi, legal inertia in Islamic jurisprudence is not necessarily broken through textual reasoning, as long as jurists believe that the law is tolerable. However, change comes about even at the expense of the literal text by various juristic devices through changes in societal conditions and attitudes.
For change to happen, straight Muslim allies will have to come out of the closet for their LGBT family and friends. They will have to shun false marriages of their straight children to closeted LGBT Muslims. They will also have to reject the prescription of permanent celibacy, which is foreign to the tradition except for a temporary duration.
We have to treat people as human beings, instead of making saints or sinners out of them. We cannot be paralyzed by Muslim leaders, who uphold static constructs and reduce human beings to mere hawwa (urges).
The first principles of raf al harj (removal of harm), adl (justice) and ird (human dignity) compel us to support Muslim same-sex unions.
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