Sexual Ethics in Islam (16 page)

One obstacle to frank conversation about shifting behavioral patterns is the insistence on avoiding revealing talk, a point explored further in the next chapter’s treatment of same- sex intimacy. As one scholar notes, “Talk about illicit sex might be as socially destabilizing as its perpetration.”
35
This is not a simple matter of prudery; the practice of avoiding potentially incriminating questions, and not sharing information about indiscretions, is woven into the fabric of Islamic legal thought as well as embedded in Muslim social norms. Covering up one’s own faults, or the faults of others, is understood as a vital duty for a believer.
36
However, the “don’t ask, don’t tell” model provides a tremendous obstacle to transforming ethical stand- ards: if everyone refuses to publicly discuss the fact that, with the disappearance of early marriage, many Muslims are not waiting for marriage to have sex, the problem continues. And the social double-standard (in the case of virginity, for example) means that the consequences for women are worse than those for men, even where, in legal terms, the issues are the same.

74 sexual ethics and islam

In March 2005, European scholar Tariq Ramadan alluded to this double-standard in his eloquent and persuasive (but controversial) call for a moratorium on
hadd
punishments for
zina
. But in nations where “consensual adult sex” is not pun- ished, regardless of its compliance with religious law, there are still very important matters to be discussed.
37
The Qur’anic and classical jurisprudential boundaries of what counts as licit and illicit have already been redrawn, for all practical purposes, by Muslim acceptance of the abolition of slavery and, therefore, of slave concubinage. The double-standard that was operative in the past (even if, in practice, it applied only to men wealthy enough to take more than one wife or own concubines) has largely disappeared as a matter of law, with the increase in monogamy and the disappearance of slave concubinage as a legal option.
Zina
can be redefined for the twenty-first century as sex between partners not married to one another. But what element of marriage legitimizes sex and differentiates it from
zina
? Do dower payment and a unilateral right by the husband to dissolve the union at his whim (regardless of whether or not this is the usual practice) make marriage moral? Is religious marriage, a voluntary contract without civil registration, suffi- cient to make sex licit, without consideration of national laws that enforce certain property relationships? Ultimately, where does lawfulness rest? These are not flippant questions, but ser- ious attempts to think about what transforms sex into some- thing licit. What is God’s stake in marriage?

5

Don’t Ask, Don’t Tell: Same-Sex Intimacy in Muslim Thought

Illicit sex between a man and a woman (
zina
); anal intercourse between men (
liwat
);

having intercourse with livestock (
ityan al-baha’im
);

having anal intercourse with a female stranger (
ityan al-mar’a al-ajnabiyya fi dubriha
);

tribadism (
musahaqat al-nisa’
), which is a woman doing with a woman something resembling what a man would do with her;

and a husband having intercourse with his wife’s corpse. From Ibn Hajar Haytami’s list of
Enormities
, #338–343
1

The excerpt above forms part of one of the many lists of major sins, or enormities (
kaba’ir
), compiled by medieval Muslim scholars.
2
Sometimes ranked in order of importance, at other times listed thematically, the entries combine theological and social sins. Sexual offenses frequently occupy prominent places in these compilations, though always below the gravest sin of associating others with God (
shirk
) and often below the sin of disrespectfulness toward one’s parents. These lists are still influ- ential today, as evidenced by Nuh Keller’s inclusion of two such lists, including Ibn Hajar’s sixteenth-century version, as appen- dices to his late twentieth-century translation of the medieval Shafi‘i legal manual
Reliance of the Traveller
. Other lists, such as that of fourteenth-century hadith scholar al-Dhahabi, are read- ily available in print in Arabic.
3

Al-Dhahabi’s influential
Enormities
(
al-Kaba’ir
) con- tains seventy sins, with extensive evidence from Qur’an and hadith presented to illustrate the gravity of each act and justify its inclusion in his list. Of this number, only a handful relate to

76 sexual ethics and islam

sex; of these, the most serious is
zina
(#10), illicit sex between a man and a woman, followed directly at #11 by
liwat
, or anal intercourse between men. (The term
liwat
is derived from the name of the Prophet Lot; most Qur’anic discussion of same-sex acts between men refer to the attempt by male townsfolk to molest Lot’s angelic visitors.) This entry also includes a brief ref- erence to tribadism.
4
Other relevant entries include #21, slander (
qadhf
) of a chaste woman;
5
#34, condoning or tolerating a wife’s transgressions;
6
and #35, employing or acting as a
muhallil
.
7
A woman’s
nushuz
(recalcitrance) toward her husband, which could involve sexual refusal or mere disobedience, is the least serious of the sex-related enormities included, at #47.
8

Tenth-century Iraqi scholar Abu Talib Makki, whose list Keller also includes, limits his compilation “solely to sins expli- citly designated as enormities by the primary texts.”
9
He divides his seventeen item list into deeds of the heart, of the tongue (including “slander of a chaste person who is a free, adult Muslim”
10
), the stomach, the genitals, the hands, the feet, and the whole body. There are “two [sins] of the genitals and they are
zina
and having anal sex in the manner of the people of Lot.”
11
This joining of
zina
and
liwat
– with
zina
always mentioned first – is a common feature of the lists of al-Dhahabi, Makki, and Ibn Hajar.

Ibn Hajar’s list is not selective, but rather comprehen- sive. While Makki itemizes seventeen enormities, and al-Dhahabi seventy, Ibn Hajar lists hundreds, divided into sections. His objective, according to Keller,“is to warn readers against any act that an Islamic scholar has classified as an enormity.”
12
The sexual offenses listed in the portion of Ibn Hajar’s list devoted to crimes (
jinayat
) include “
zina
;
liwat
; having intercourse with livestock; having anal intercourse with a female stranger; trib- adism, which is a woman doing with a woman something resembling what a man would do with her; and a husband having intercourse with his wife’s corpse.”
13
This grouping begins with reference to
zina
and
liwat
, the primary sexual sins signaled by al-Dhahabi and Makki, and encompasses several other acts as well, including tribadism, which merits a brief mention in al-Dhahabi’s discussion of
liwat
but does not appear

don’t ask, don’t tell 77

in Makki’s list. Aside from the exclusion of acts related to marriage, which appear in a separate section of Ibn Hajar’s list, there is no easily discernible logic joining these items. The sec- tion includes both acts subject to
hadd
punishments and those subject to discretionary chastisement; acts involving two persons of the same sex, two persons of the opposite sex, and one person with an animal; acts that are forbidden because they are intrinsically sinful, as is the case with intercourse with an animal or a corpse, and those where the problem is not the act itself, but the lack of a proper legal relationship between the parties, as in the case of
zina
. While there are no circumstances under which bestiality or necrophilia can lawfully be per- formed,
14
in the case of
zina
, there would be no sin in the intercourse had the participants been married to each other.

What categorization applies to the same-sex
15
sexual acts described in the passage? This question itself presupposes a category that may not be relevant. Ibn Hajar deals with
liwat
and tribadism or lesbianism (
musahaqat al-nisa’
) individually and separately, not as instances of a broader sin called homosexual- ity. However, as I noted above, tribadism appears briefly in the section al-Dhahabi devotes to
liwat
, suggesting that they have something important in common. What, though, of the acts? In the case of anal sex, the act itself may be an enormity, regardless of who engages in it; Ibn Hajar condemns anal sex between men (
liwat
) as well as anal sex between a man and a female “stranger”

– that is, a woman who is neither his wife nor his slave and over whom he has no sexual rights. In the section on marriage, Ibn Hajar also condemns a man having anal sex with his wife (though, in what is potentially an oversight, he makes no men- tion of a man having anal sex with his slave concubine). Trib- adism is another story. Frottage is perfectly permissible between legitimate partners (a man and his wife or his concubine), so his prohibition of “a woman doing with another woman something resembling what a man would do with her” is not based on the impermissibility of the act itself. As in the case of
zina
, it is the lack of a lawful tie between the parties that renders the act illicit.

Could there be circumstances under which such a tie could legalize otherwise permitted sexual acts between two

78 sexual ethics and islam

women or two men? For the vast majority of Muslims, and certainly for Ibn Hajar and his colleagues, this is a ludicrous question; a licit same-sex relationship is a categorical impos- sibility. Recently, however, some self-identified queer Muslims have challenged this view, affirming the naturalness of their sexual orientation as divinely granted and seeking to consider whether it might be possible to construct a religiously valid bond between two men or two women that would legitimize sex between them. The desire on the part of some self-identified gay and lesbian Muslims to have exclusive and publicly recognized same-sex relationships, and to do so in a way that falls within an “Islamic” framework, is without precedent in Muslim history.

In describing this as a recent development, I do not mean to imply that there have not been previous instances of sexual activity, potentially including long-term affective rela- tionships, between individuals of the same sex. What differs is the attempt made by some to reconcile a “homosexual” identity with a Muslim identity, and to legitimize same-sex intimate partnerships within the constraints of Islamic religious dis- course. Their desire to have sexual relationships that break con- ventional Islamic rules but that aspire to the highest standards of Muslim ethics, as they understand them, exists in tension with vital theological and juridical principles aside from those for- bidding illicit sex. The two most salient principles are that one should not expose sinful behavior, whether one’s own or another’s, and that it is a greater offense to deny certain rules than to break them. Taken together, these rules render any dis- cussion of same-sex sexual intimacy a risky proposition, and make adherence to the “don’t ask, don’t tell” status quo appeal- ing for many. For others, however, the tacit toleration of illicit same-sex activity, provided one does not seek public affirmation of any intimate relationship, represents deep hypocrisy and a flagrant violation of other ethical principles.

After providing a brief survey of how the texts treat sexual activity between two men or two women, this chapter will con- sider the way modern Muslim thinkers from a variety of perspec- tives approach the relationship between sexual orientation, sexual acts, and sexual identities. The view that exclusively homosexual

don’t ask, don’t tell 79

desire is innate in some individuals – a core argument of those seeking acceptance of gay and lesbian identity – has made inroads even among some relatively conservative Western Muslim thinkers, but the implications of this acceptance have not been fully delineated. Those who view sexual orientation as inborn but suggest that same-sex desires can never be fulfilled lawfully con- front the problem of divine injustice, particularly where they also argue for the importance of sexual satisfaction as a human need. On the other hand, those who argue that innateness conveys per- missibility do not satisfactorily address either the macrocosmic principles of male/female partnership expressed in scripture or the ahistorical nature of their claims to an innately gay orienta- tion, claims which ignore the diversity of historical and contem- porary understandings of sexuality. In either case, the minority Western movement for acceptance of a gay Muslim identity, and the reaction to it, has implications for intimate relationships in all segments of Muslim communities, including between men and women in marriage. For this reason, no discussion of sexual ethics can avoid the issue of same-sex intimacy.

History

Although most Muslims would acknowledge that sexual activity between persons of the same sex exists in Muslim-majority societies, this concession is frequently accompanied by an insistence that homosexuality is “western” or “modern,” and certainly “un-Islamic.”
16
Writing in 1993, Khaled Duran stated confidently that there were “no self-proclaimed gays in Muslim countries” and that no movement toward the acceptance of homosexuality or gay identity was taking place among Mus- lims.
17
Yet contemporary insistence on the forbiddenness of homosexuality aside, a number of scholars have suggested “that one might consider Islamic societies ... to provide a vivid illustration of a ‘homosexual-friendly’ environment in world history.”
18
According to Scott Kugle, “when one looks through the historical and literary records of Islamic civilization, one finds a rich archive of same-sex desires and expressions, written