Voices of Islam (262 page)

There are many hadith in circulation about punishing men for homosexual acts and several about punishing women, and a few about cursing those who transgress gender norms. As a case study, let us focus here on the punishment for a man’s having sex with another man, as this is the obsession of jurists and set the denunciatory tone for the modern treatment of gays, lesbians, and transgendered persons. Whether hadith reports on this subject are authentic or not needs to be determined by focused research using traditional
isnad
criticism and
matn
criticism.
Isnad
is the chain of authorities who narrated the report, while
matn
is textual content of the report itself. Hadith science, in theory, allowed reports to be rejected if their content contradicted reason, medical reality or scientifi observation.
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Sadly, most Neo-Traditionalists are loath to actually use these traditional tools, as the results of sincere research will most likely go against their vested interests.

Whether judged authentic or not, it is clear that these reports do not represent the Prophet Muhammad’s actual decision of a concrete case (in contrast to the hadith reports about heterosexual adultery cases). They reinforce decisions that were made by the early Islamic community, based upon their own presumptions. The earliest known case occurred during the vice-regency of Abu Bakr al-Siddiq, after the Prophet’s death. Khalid ibn Walid wrote him a letter asking for a decision on what to do with a man found having sex with another man as if he were having sex with a woman. Abu Bakr summoned important Companions of the Prophet to make a decision. Among them was ‘Ali ibn Abi Talib, who is reported to have said, ‘‘This is a sin which no community was known to have done except one community and God did to them what you well know, so I think we should

burn him with fire.’’ Based on this opinion, Abu Bakr ordered that the man be burned.
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Close attention to this narrative (
khabar
) reveals many key points. First, the vice-regent called for counsel because there was no precedent in the Prophet Muhammad’s own actions. Second, the council included some of the Prophet’s closest followers who would have related the Prophet’s own words on this subject, if any had been known. Third, none of the Compan- ions related a teaching of the Prophet on this issue, throwing into grave doubt whether any of the hadith reports later attributed to the Prophet are authentically from him. Fourth, ‘Ali made a decision based upon his own reasoning, to burn the man alive in imitation of how God punished

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the people of Sodom and Gomorrah by raining down upon them burning stones. Fifth, this decision was based on informal comparison, not on formal judicial reasoning which is the basis for Islamic law. Sixth, we have no other example of such a comparison used to justify punishments for other acts (for instance, God destroyed Noah’s people for idolatry in the great flood but Islamic law does not punish idolaters with drowning, and God destroyed Salih’s people for killing His sacred camel in a volcanic eruption but Islamic law does not punish wrongful slaughter of animals with asphyxiation). Seventh, such informal comparison is not allowed to justify legal decisions in the Shari‘a. These points highlight the fact that ‘Ali and the early Compan- ions were doing what they thought was right but were not acting according to direct guidance from the Prophet or upon an explicit command of the Qur’an. No matter how much we respect these early leaders of the Muslim community, we must admit that they acted upon their opinion and cultural presumptions—therefore their actions are open to review and reassessment.

After reviewing this report (
khabar
), we can better understand why hadith reports were later circulated that justified capital punishment in the name of the Prophet rather than ‘Ali and companions. This report offers a rather flimsy justification for taking the life of a believer, even if it is accepted that he sinned in his act. Some people in Medina continued to burn men found having sex with other men, but others found it to be out-of-line with the emerging practice of Islamic law, which tried to decide if homosexual acts were the same as heterosexual acts without a contract (
zina
). If so, the punishment would be lashing, rather than burning. The na¨ıve reader might ask what is the difference if the result is death? The difference is tremendous. The punishment for heterosexual intercourse without a contract between the partners (
zina
) is clearly stipulated in the Qur’an and was carried out by the Prophet. If the punishment for homosexual sex were, by formal analogy, declared to be like adultery, then the punishment could be argued to be based on the Qur’an, extending the punishment for one crime to that of an analogous crime. Also at issue is whether homosexual intercourse is a crime against God (
hadd
) as is heterosexual adultery (
zina
).
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There are some reports that ‘Ali himself ordered men who had sex with men to be stoned; either he changed his mind to seal the analogy with
zina
as adultery or he was reported to have done so to support the jurists who argued by this analogy.

The opinion of the early jurist, Imam Malik ibn Anas (d. 795
CE
), shows a transitional state which favors stoning but not through analogy with
zina.
His book,
al-Muwatta,
one of the earliest collections of hadith reports, does not substantiate his ruling on male homosexual intercourse with a hadith report because, one suspects, there were none in circulation at that time. Rather he supported the stoning rule solely on the fact that the people of Medina did this: ‘‘He is to be stoned whether he is married or unmarried.’’
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This second phrase, ‘‘married or unmarried,’’ reveals that Malik’s ruling is still based on a unique punishment and not on an analogy with
zina,
for

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which punishment is stoning if one is already married but is a lesser lashing if unmarried. It was not until the time of Shafi‘i (d. 820
CE
) that jurists’ deci- sions had to be based upon the Prophet’s Sunna as defined solely by hadith reports, rather than by community practice as in the opinion of Malik or by reliance on reasoned deduction as in the opinions of Abu Hanifa (d. 767
CE
). From this time, hadith reports had a great significance whereas before they were often held in suspicion. Subsequently, many hadith reports that circulated orally were written down for use in the law, and reports that may have originated with Companions and Followers were claimed to actually be from the Prophet. With this change in legal thinking, there devel- oped intense pressure to give even weak reports adequate chains of transmis- sion, and to justify prior decisions that may have come from followers of the Prophet as having come directly from him. Accordingly, we find Shafi‘i and Hanbali jurists with hadith reports, allegedly from the Prophet’s lips, which earlier jurists and even Abu Bakr give no evidence of having known. Not surprisingly, these alleged reports substantiate the ruling that homosexual intercourse is analogous to heterosexual intercourse outside of a contractual relationship (
zina
). In his collection of hadith reports, the
Musnad,
Ahmad ibn Hanbal (d. 855
CE
) includes reports specifying death by stoning, with some variation in the wording, reports that stricter hadith scholars, like Bukhari (d. 870
CE
) and Muslim (d. 875
CE
), did not include in theirs. The fl od-gates were thus opened for all sorts of reports alleged to be from the Prophet; some are quite far-fetched and medieval scholars have thrown them out as falsifications, like the reports that say homosexual men will be raised on Judgment Day as pigs and apes, or that when a man mounts another man the earth beseeches God to allow it to convulse and swallow them up to conceal their act, or that no young man is more shameless than one who allows him- self to be entered from behind.
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Despite being debunked by medieval schol- ars, Neo-Traditionalists still use these alleged hadith reports against anyone who dares to discuss homosexuality.

My own research has been accused of being ‘‘glib’’ and ‘‘unscholarly’’ for raising the issue of the authenticity of these reports.
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In reality, for Neo-Traditionalists the pertinent issue is not which reports are authentic and which are not, but whose voice is authoritative in having the right to speak about them. It is my suggestion (and it remains a hypothesis until more research is done on Hadith by all voices in the current debate) that such reports do not represent authentic teachings of the Prophet. Rather, they represent homophobic prejudice common to patriarchal cultures, whether Arab, Hellenic, Jewish, or Byzantine. Like misogynist values, they were inscribed in the Shari‘a from an early time, even though they were not part of the Prophet Muhammad’s example.
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Cultural prejudices could have been reinforced by a concept of sacred history adopted from Jewish culture, notions of imperial law adopted from Byzantine sources, and medical theo- ries adopted from Greek sources, all of which saw women in general and

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homosexual men, as incomplete beings compared to the ideal of the patri- archal empowered man. It would be a fascinating but very long journey to trace in detail all of these cultural streams that flowed into the sea of Islamic society during the formative period of its law, theology, and cultural world- view. My contention is that much of Islamic theology and law is based upon a view of human nature that is cultural and not scriptural, and is therefore contingent and not eternal; as our understanding of what human nature is grows and develops, Islamic theology and law deserves to be held up to scrutiny in the light of justice, social benefit, and reasoned observation, since the Qur’an addresses itself to the human being and not to the Arab male, or to the medieval Persian sultan, or to the Pakistani grandmother. In fact, it is not just a right but also a duty for sincere Muslims to scrutinize their inher- ited traditions in order to live up to the Qur’anic challenge. Inevitably, believers will disagree over the method and intensity of this scrutiny, but as long as this disagreement is tempered by mutual respect, it is part of the magnificent diversity of Islam and in accord with the Prophet’s teaching that ‘‘difference of opinion in my community is a mercy.’’

PAIRS AND PARTNERS

There were disagreements between different schools of law (
madhhab
) over whether homosexual penetrative sex was equivalent to heterosexual adultery (
zina
), for which the punishment was lashing (for an unmarried par- ticipant) or stoning to death (for a participant married already to someone else). For instance, Hanafi jurists argued that homosexual sex was not the same as
zina,
since the Qur’an specifies that
zina
is sex between a man and a woman; instead they argued that punishment for homosexual penetration was not stipulated by the Qur’an and was up to the discretion of judges (
ta‘zir
) and could change depending on social conventions. Behind these disagreements were differences in philosophy: were only penetrative behav- iors considered ‘‘sex acts’’? Were homosexual acts a sin against God or merely against human convention? Were they forbidden because of the same-sex nature of the couple or because the couple did not have a contract to legalize their union?

This is no place to enter these fascinating and complex legal discussions, which I have written about earlier. Let me make just a few observations. Although classical Islamic law generally forbids same-sex acts, there was not juridical consensus (
ijma‘
) as to why, under what conditions and with what punishment. We can safely assert that the subject should still be discussed and, in the light of new evidence and under unprecedented social conditions, be open to revision through
ijtihad.
Classical Islamic law forbids same-sex actions but did not address same-sex relationships, allowing us to ask whether, if there could be legal contracts of marriage or civic union between

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same-sex partners, the sex acts would still be illegal or immoral.
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Jurists ruled on same-sex acts on the basis of hadith reports not the Qur’an, for verses about the Prophet Lot, even if they are interpreted as being about homosexuality, do not have legal specifi ity as required to formulate rulings in the Shari‘a. These hadith reports are of questionable authenticity, as some have broken chains of transmission and most of them have single- transmission chains that, in Islamic legal theory, can lead to speculative opinion but not to obligating certainty. Hanafi jurists, for instance, refused to rely on single-transmission hadith reports, especially if the decision could lead to corporal punishment as it could in the issue of penetrative homo- sexual sex acts. Though Hanafi held that same-sex intercourse is immoral, they asserted that it was not a
hadd
crime, insisting that there should be no capital punishment but rather that government authorities could punish it as they see fit.
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Implicit in their position is that the government’s assessment could change as social conditions change, making their position a promising place to begin reform.

I am afraid that contemporary jurists do not have the confidence to open these crucial questions for reassessment, but perhaps they will surprise us! Their voices are often superceded and drowned out by dema- gogues and ideologues, who shout representations of the Shari‘a without being educated about the complexities of jurisprudence. Examples of this rhetoric are legion in pamphlets and Internet
fatwa
s, like some of those on ‘‘IslamOnline.’’

The Qur’an talks about sexual pairing and partnerships in ways that are much deeper than Islamic law and theology, and this should be the starting place for a reconsideration of sexuality and homosexuality among Muslims. ‘‘Glory be to the One who creates the mates, all of them, in what grows upon the earth and from themselves and from what you do not even know!’’ (Qur’an 36:35–36). The Qur’an invokes pairs and partners in ways too com- plex to be reduced to a heterosexual pair of man and woman (or even a hetero-plurality of man and women). Certainly, Adam and Eve are termed ‘‘a pair’’ who mate at God’s direction to provide each other with rest and tranquility. In the Qur’an, all life is created in pairs, ‘‘male and female,’’ to insure reproduction and growth, among animals and fruits and plants. However, the Qur’an does not limit the mysterious principle of growth to gendered pairs but extends it to all pairs. To say ‘‘God created Adam and Eve, not Adam and Steve’’ would be a gross reduction of the Qur’an’s teaching about mating in pairs!