American Muslims and the Dangers of Sidelining on Marriage Equality

Losing Humanity

With every passing decade humanity seems to require recalibration. Discriminatory tendencies, sometimes accompanied by ruthless and barbaric behavior exhibited throughout history, have been re-occurring with alarming frequency and deadlier consequences. This is often the case, as evidenced throughout U.S. history, with the rise of intolerance and bigoted perspectives. It comes, unfortunately, at great cost to inherent nurturing factors embedded within and intended to guide mankind to recognize an all too human reflection in others. There is compelling reason to step back and re-engage a more personal humanity in ways few within the corridors of power care to. Within the parameters of a collective existence, there are key elements of human interaction considered supreme over others in establishing fundamental building blocks that facilitate paths towards a just, sustainable and shared future. Power, accumulated wealth and geopolitical dominance are often misconstrued as being wholly indicative of a successful civilization; they are but variables in a larger equation that includes social equality; a fundamental human development that demands the eradication of unequal treatment under the law.

These are but a few factors that must underpin and assist critical introspection and serve as guide posts in a tireless search for social justice and common ground, however elusive they may sometimes seem; in this case as it relates to the issue of same-sex marriage being a personal civil right or, as advocated by more conservative minded establishments, an abomination threatening the structure of traditional society and therefore subject to restrictions not applicable to others.

Notably absent from this national debate are the voices of American Muslims and, more importantly, the position of Islam as it relates to and distinguishes between homosexuality and homosexual acts. One can speculate as to the reason for this absence, from main stream media simply ignoring Islamic perspectives and not extending invitations to scholarly figures, and/or Muslims simply not wanting to draw more scrutiny than already exists. The implications presented by this fierce and ideologically driven front of the conservative right are far reaching, with certain impact on other matters of civil liberty they, public officials and agenda-driven politicians may deem in the state’s interest to act upon. American Muslims cannot afford to be silent.

The Right and Wrong

Last month, Alabama Attorney General Luther Strange filed a brief with the U.S. Supreme Court supporting laws in Kentucky, Michigan, Ohio and Tennessee that uphold a ban on same-sex marriage. Across the nation more than 60 such briefs have been filed by conservatives, including religious establishments representing Evangelicals, Mormons, Baptists, Lutherans, Methodists and other similarly affiliated groups. Islam, a religion boasting the fastest growth in the U.S. and the second largest faith in the world, seems to be excluded; but nevertheless it must engage this very public fight to make its position known and understood.

Although Islam does not have a centralized and individual authoritative figure head speaking on behalf of all Muslims, a sense of urgency surrounds this missing piece of the debate. Especially since in the same week that the Alabama Supreme Court defied a federal court order instructing states to recognize same-sex marriages, ISIS made a public event of throwing a number of accused homosexuals to their death from atop houses and buildings for defying the principles of Islam governing sex and intra-gender relations. As is often the case with ISIS, extremely narrow and twisted interpretations of the Quran and traditions of the Prophet (pbuh) are used without also applying the prerequisite context and due process standards established in the holy text and the Islamic legal tradition. It goes without saying that the method of punishment levied was as un-Islamic as the organization itself, and thus requiring a swift and strong condemnation from Muslims around the world.

In his brief, Attorney General Strange directed the U.S. Supreme Court stating it had an obligation to uphold states’ bans on same-sex marriage because they are founded upon the legitimate interest of a state, and that federal courts should not interject insofar as such legislative actions are not “…based on a suspect classification…” and do not “…impact a fundamental right.” Such a position is almost entirely predicated upon the perception that the ban on gay marriage in these four states does not infringe upon a “fundamental right”, and therefore must be left in place for states to implement. Herein lies the profound disturbance in his argument, one all Americans, Muslim or otherwise, should pay attention to. Strange argues that homosexuals, like heterosexuals - undeniable segments of the American citizenry - do not fall under the same civil liberties category that straight people do.

In daring to impose such exclusivity upon certain liberties most Americans enjoy or in the least have a right to, the Attorney General is attempting to establish a seemingly legal foundation for what is clearly the beginning of discrimination on the basis of “they’re not like us”. A concept specifically rejected by most Americans, and one that in all likelihood, as history proves, may be used to justify other discriminatory restrictions on other communities who fall within the “they’re not like us” category; Catholics, Japanese, Jews, African Americans and Muslims know this all too well. It is clearly a dangerous place to be, and why American Muslims must endeavor to join the debate.

Contributing to the National Debate

Islam establishes fundamental rights for all individuals and how they apply within the various contexts that govern the inherent dynamic of gender and intra-gender relations. This guiding framework is inseparable from and of critical import to the concept of personal accountability of one’s actions to the Creator. And yet, specifically relating to overt and proven acts of homosexuality, the Qur’an is crystal clear in that they constitute a grave sin and are diametrically opposed to the intention of creation. It includes five references touching upon the subject. The two primary ones being: “…ye approach males, and leave those wives Allah has created for you to be your mates? Nay, ye are a people transgressing (all limits)!” (Sura 26: V. 165-166); and the other, also present in Hebrew Scriptures, refers to the Prophet Lut (Lot) and town of Sodom and includes a divine punishing judgment against its inhabitants: "Do ye (people of Lot) commit lewdness such as no people in creation (ever) committed before you? For ye practice your lusts on men in preference to women: ye are indeed a people transgressing beyond bounds." (Sura 7:V. 80-81).

Interestingly though, the Qur’an does not specify punishment within the context of humanity legislating against homosexual acts. However, authoritative scholars of Islam and the traditions of the Prophet (pbuh) point to the destruction of Sodom and Gomorrah by God to illustrate the implications of such overt intra-gender sexual conduct; the key words here emphasizing context being: “by God”. The four schools of Islamic thought and jurisprudence, Hanafi, Schafi, Hanbali and Maliki, all agree on the sinful nature of same-sex sexual conduct; yet this agreement does not represent a consensus of opinion on the appropriate punishment, in part due to its seemingly purposeful absence in the Qur’an.

The Hanafi legal school does not require or prescribe any form of physical punishment, it refers however to the discretion of individual scholars and judges in such matters. In doing so, the Hanafis relegate homosexual activity to a less severe offense under the category of tazir, a classification given to transgressions in which punishment is not prescribed in the Qur’an.

Contrary to the Hanafi school, the Hanbali, Maliki and Shafi legal schools elevate verified homosexual conduct to a hadd crime - crimes against the rights of God, of which 6 exist and punishment is fixed - making it a zina (unlawful sexual activity which also applies to unmarried individuals engaged in sexual acts) and, although rarely applied due to stringent evidence standards, is punishable within specified guidelines. In such instances however, Islamic law provides a counter balance to protect the accused and offer due process, even if they are guilty of prohibited acts within the privacy of their own homes.

In order to prove “unlawful sexual activity”, the accuser(s) must have witnessed the act and required to produce three other primary witnesses to said act. Even if all these (seemingly improbable) conditions are met, the argument can be made that in witnessing this private act, the accuser(s) transgressed the laws of privacy in Islam that govern and/or protect individuals in the confines of their homes, and become themselves subject to punishment as well. Absent any witnesses to accusations of homosexual acts, the other method for determining guilt is for the accused to voluntarily confess, on four different occasions, to having committed the act. It follows that a single confession can easily be coerced; whereas four on separate occasions is a high enough bar to establish in order to avoid false accusations. It is in fact a very fine line to walk. The Qur’an is specific on this issue: “O you who believe! Avoid much suspicion, indeed some suspicions are sins. And spy not, neither backbite one another.” (Sura 49: V.12), and: “Those who love (to see) scandal published (and) broadcast among the Believers will have a grievous Penalty in this life and in the Hereafter…” (Sura 24: V.19) Essentially, homosexuals are human beings to be treated justly and no differently than the rest of society, and are guaranteed equal protections under Islamic law.

Injustice to One, Injustice to All

The debate over whether or not to grant homosexuals the right to marry is a civil liberties issue. In reverting to a proper sequence of reasoning it cannot be denied outright, as is being advocated by opponents. A fundamental reality must be clarified that first, homosexuals are human beings. Acknowledging this, it should follow that others cannot deny them a civil liberty enjoyed by heterosexual humans insofar as they do not commit harm or physical injury to others. In granting this liberty, the counter argument goes, society itself and generational traditions become at risk; this may not be as convincing once analyzed thoroughly. The greater risk to society comes not from those amongst us who prefer less than traditional life choices; the greater danger is posed by those willing to deny basic human liberties to anyone not fitting specifically familiar molds. Time and again, the latter has been utilized as a weapon of socioeconomic exclusivity resulting in gross human rights violations and in many instances, crimes against humanity.

Islam is clear on the matter of intra-gender sexual relations. However, it is equally unambiguous on and condemns those who attempt to purge society by publicly exposing and discriminating against gays, subjecting them to harm, physical injury or death, whether in the West or in the Islamic world: “Do not be provoked by your conflicts with some people into committing injustice. You shall be absolutely equitable, for it is more righteous.”(Sura 5:V.8)

American Muslims must join the effort in the broader struggle for equality for all; specifically for marriage equality, regardless of the odds and despite the probabilities of being vilified and criticized. The implications of the conservative right succeeding in imposing legal discrimination in this instance, will be felt, sooner or later, by other minority groups who happen to not fit under categories deemed "normal", "traditional" or “acceptable”. It is a very slippery slope.

The Prophet once said: “The world is like a ship and mankind its passengers. The welfare of all depends upon the safe conduct of each. If anyone is found making a hole on the side of a ship, he must be stopped.”

Given that “the welfare of all depends upon the safe conduct of each.”, reconsidering the question from a parallel perspective is warranted.

Who really is “…making a hole on the side of the ship…”?