Sexual Ethics in Islam (8 page)

The first fatwa, by Taha Jabir Alalwani, appears on the website of the mainstream and influential Islamic Society of North America.
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He argues:

A questioner asks, “Is it forbidden (
haram
) for a Muslim woman to be married to a non Muslim, and what should one do?” The standard answer based on the Qur’an is that it is forbidden for a Muslim woman to be married to a non- Muslim so she should be divorced immediately. However in this particular case the circumstances are as follows: The woman has just converted to Islam and she has a husband and two young kids. The husband is very supportive, but is not at this time interested in converting. The woman was told immediately after converting that she had to divorce her husband of 20 years. Within these circumstances the question should have been: Is it worse for a Muslim woman to be married to a non-Muslim husband or for her to leave the religion? The answer is that leaving the religion is much worse, so therefore it is acceptable for her to continue with her marriage and she is responsible before Allah on Judg- ment Day.

Alalwani situates his response to a “questioner” asking about “a Muslim woman [being] married to a non Muslim” within a consideration of the larger issue of whether questions have been properly formulated to lead to appropriate results. The question posed was whether the situation was “forbidden” and what would be the appropriate action to take in case of such marriage.

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After discussing the woman’s personal circumstances, Alalwani reframes the issue as a choice between the convert remaining married to a non-Muslim or leaving Islam. In asserting that the way a question is formulated affects what answer can be given, Alalwani recognizes a key facet of all intellectual endeavor, Islamic jurisprudence not excluded. However, he does not acknowledge the extent to which his own statement of what “the question should have been” predetermines its outcome: there can be no consequence worse than leaving Islam, so any alterna- tive, even violating the prohibition on marriage between a Muslim woman and a non-Muslim man, seems reasonable.

Rather than undertaking a serious reconsideration of interreligious marriage by Muslim women, Alalwani provides a dispensation (
rukhsa
) which lightens a normal restriction to respond to an extraordinary circumstance. Indeed, he provides a truly extraordinary example: a woman married twenty years would be far more reluctant to leave her husband than one mar- ried only a few years. Further, a woman with young children would be especially hesitant to separate from their father. The fact that both these elements are present suggests contrivance: how many women married for two decades still have“two young kids”? Though the situation he describes is biologically possible, it is far more likely that a woman married for such a long time would have teenaged offspring. By depicting a situation where one is very sympathetic to the woman involved, Alalwani increases the likelihood that readers will concur with his deliberations. But does this fatwa have relevance beyond the individual case at stake?

Although the logic of this fatwa is internally sound, its methodological premise is too superficial to be sustained or applied more broadly, as it allows for almost any manipulation of the question to result in the desired answer. Would he accept the same rationale if it were not a convert’s marriage at stake but rather an unmarried Muslim woman in love with, and wanting to marry, a non-Muslim, and in danger of leaving Islam if she could not do so? What if it were two Muslim women wanting to marry each other, now permissible under civil law in certain parts of North America and Europe? Presumably, Alalwani

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would approach these situations differently, but this fatwa does not provide any methodological justification for doing so.

Alalwani does not suggest a broader differentiation between permitting a convert to Islam to remain married to her
kitabi
husband (where her apostasy from Islam was not feared) and cases where an unmarried Muslim woman wanted to marry a Christian or Jewish man. There is some textual support for this distinction; anecdotal evidence suggests that the first generation of Muslims viewed the preservation of an existing marriage somewhat differently than the case where no marriage yet existed.
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The second fatwa, from the European Council for Fatwa (an all-male organization that includes North America-based Jamal Badawi among its members), does make this distinction, “affirm[ing] and repeat[ing] that it is forbidden for a Muslim female to establish marriage to a non-Muslim male” while permitting a convert to maintain her marriage under certain circumstances.
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The fatwa acknowledges that “According to the four main schools of jurisprudence, it is forbidden for the wife to remain with her husband or indeed to allow him conjugal rights, once her period of waiting has expired.” The Council bases its dissenting view on “some scholars” (those named are Ibrahim al-Nakha’i, al-Shi’bi, and Hammad ibn Abi Sulayman) who held that“it is for her to remain with him, allowing him and enjoying full conjugal rights, if he does not prevent her from exercising her religion and she has hope in him reverting [i.e., converting] to Islam.” The Council’s rationale (“for women not to reject entering into Islam if they realize that they are to sep- arate from their husbands and desert their families by doing so”) is similar to Alalwani’s objective to prevent the convert’s apostasy, although the situation of one who never becomes Muslim is less dire than that of one who becomes Muslim only to abandon the faith.

Both fatwas acknowledge their departure from the near-universal view on the dissolution of a female convert’s marriage. Neither, however, reconsiders the evidence on which that doctrine is based. Alalwani states simply that “the standard answer based on the Qur’an is that it is forbidden for a Muslim woman to be married to a non-Muslim.”
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However, his

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intimation that the Qur’an explicitly forbids such marriages is misleading. The Qur’an does not address the situation of women’s marriage to “non-Muslims” in general but rather dis- cusses specific categories of potential spouses such as “those who associate partners with God” (
mushrikin
) and “unbelievers.” Although both fatwas refer to a woman’s freedom to practice her new religion, neither discusses the relation of the cases at issue to the Qur’anic verse disapproving of Muslim women remaining married to unbelievers (
kuffar
). A woman’s conver- sion separately from her “very supportive” husband suggests her freedom of conscience and action. In contrast to the cases considered by these muftis, the Qur’anic verse explicitly treats the situation of women who had converted and left their husbands. The situation of female converts to Islam who had come as refugees from a community engaged in conflict with the Muslims is, in several respects, quite different from that of women who desire to remain with their husbands, not to mention those living in a society in which Muslims and non- Muslims co-exist peacefully. The muftis could have chosen to argue that this Qur’anic ruling is context-specific and therefore does not apply in the dramatically altered scenario of a Christian or Jewish woman who converts to Islam in the United States today.

If one holds that Surah 60, verse 10 does not apply to the situation of converts in the West today, then the remaining Qur’anic evidence against women’s marriage to non-Muslims is twofold: the prohibition in Surah 2, verse 221 on marrying women off to those who associate partners with God, and the silence surrounding women’s marriage to
kitabi
s in Surah 5, verse 5. The prohibition of marriage to
mushrikin
in the former explicitly applies to both Muslim men and Muslim women. It cannot, therefore, be applicable to all “non-Muslims,” as many exegetes, both classical and contemporary, have assumed in the case of women.
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Rather, it is accepted to stand in non- contradiction to the permission for Muslim men to marry women from “those who have received the book before you” in the latter verse. To view the same command prohibiting marriage to
mushrikin
as applying more broadly to women than

marriage, money, and sex 21

to men requires a significant interpretive leap, moving far beyond the verse itself. The prohibition of marrying women off to
mushrikin
in Surah 2, verse 221 does not by itself foreclose the possibility of permission for women to marry
kitabi
s. And although Surah 5, verse 5 does not explicitly grant permission for such marriages, there are numerous other instances in the Qur’an where commands addressed to men regarding women are taken to apply,
mutatis mutandis
, to women.
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If the Qur’an does not directly address the marriage of Muslim women to
kitabi
men, and if the presumptions about male supremacy and dominance in the home no longer hold, such that a female convert living in a majority non-Muslim nation is assured freedom to practice Islam in her home unen- cumbered (or to obtain a civil divorce independently if she is not), what rationale exists for continuing to prohibit marriage between Muslim women and
kitabi
men in the first place? My aim is not to construct a legal argument for the permissibility of such marriages but rather to highlight the weaknesses in most arguments against them, particularly their reliance on unspoken but fundamental assumptions about male dominance in marriage. These assumptions are no longer widely shared, or at least no longer broadly acceptable as justifications for the pro- hibition of intermarriage. At the same time, greater attention to the discussions surrounding men’s marriage to
kitabiyya
s in both hadith and jurisprudence suggests the relevance of taking context into account in both permission for and prohibition of intermarriage. There are cogent arguments to be made for con- sidering the permission to marry non-Muslims on the basis of factors other than gender.

Conclusion

Discussions of marriage among scholars, pundits and ordinary Muslims consist of a curious and continuously shifting mix of specific classical doctrines, isolated citations from Qur’an and hadith, and modern assumptions. Among Muslims in the United States, as in most Muslim-majority societies, classical models

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for marriage no longer hold sway in numerous respects. Rules that allowed for fathers to contract binding marriages for their minor children of either sex no longer persist. Apologetic discourses stress wives’ sexual rights while downplaying the importance of wifely obedience. In fundamental respects, in social practice at least, the understanding of Islamic marriage has shifted. Yet there has not been a coherent alternative to the classical understanding of marriage as a fundamentally gender- differentiated institution which presumes, at least at some level, male authority and control.

Dower, which holds a central place in the legal structure of marriage and in the social practice of some Muslim commu- nities often takes on a merely symbolic form among American Muslims. Adhering to the symbolism comes at a price, however. If dower is meant to be an economic safety net for women, then a more useful approach would depend on factors other than consummation, such as length of marriage, contribution to the household economy, wages lost and earning potential dimin- ished during childbearing and caretaking, and so forth. Feminist assertions that women do not have any Islamic obligation to perform domestic services or childcare may have the ironic effect of devaluing those contributions. Although stress on the voluntary nature of women’s performance of domestic duties can highlight their significance, this recognition that dower does not compensate for a wife’s household contribution is not usu- ally accompanied by a discussion of
precisely for what it is
that dower compensates a woman.

Discussions about dower, spousal rights, and intermar- riage must occur in the context of a broader consideration of what men and women contribute to marriage and to the family, including the recognition that most American Muslims do not maintain the separate asset regime assumed by classical law and that complete male economic responsibility is more theoretical than actual. Perhaps one positive outcome of the neo-traditional vision of the wife providing homemaking and childrearing services in exchange for male providership could be the dissoci- ation of sex from support; if sex is no longer the wife’s marital duty, then it could become a fully mutual right. This does not

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resolve the problem of how to deal with the double-shift that emerges when women work outside the home to provide partial support for the household without the husband taking over a portion of the household duties, but it might be more reason- able to see those duties as less explicitly gendered than the others. If some Muslims want to adopt a provider/homemaker division of labor that provides some kind of economic independ- ence for women, that ought to be negotiable. But the pretense that such a structure, and only such a structure, is religiously legitimate avoids the reality that many Muslims organize their lives differently, as well as the real incompatibility of classical definitions of male and female obligations with most contem- porary understandings of spousal roles in marriage.

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Lesser Evils: Divorce in Islamic Ethics

God did not make lawful anything more repugnant to Him than divorce. Reported saying of the Prophet Muhammad,
Sunan Abi Dawud
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A woman knows (that is, comes to know with certainty) that her husband has divorced her thrice; the husband denies having divorced her; and the woman has not the ability to prevent the husband from (having access to) her person: it is permissible to the woman to kill the husband; because she is helpless in preventing mischief to her person; and, therefore, it shall be allowable to her to kill him; but it is proper that she should kill him with drugs, and not with an instrument of death; because if the woman should kill him with an instrument which inflicts wound, she shall be put to death by way of
kisas
(or retaliation).