08/30/2016 02:26 EDT | Updated 08/30/2016 02:59 EDT

Logistical Rules Do Not Hinder Muslim Same-Sex Unions

Dr. Mohammad Fadel, a Professor at the University of Toronto, offered a reflection on the possible theological inclusion of gay Muslims in Islam. His main argument is that while the Qur'an does not countenance the possibility of same-sex relationships, gay Muslims may be accommodated based on necessity.

Specifically, Fadel states that the Qur'an contrasts illicit and licit heterosexual relationships but it does not contemplate "any form of same-sex intimacy." He asserts that verses 23:5-7 view any "form of sexual gratification" beyond a spouse or concubine as transgressive.

He opines that regulations on dower, maintenance, divorce and prohibited marriage partners are heteronormative enough to preclude same-sex marriages. However, he claims that a potential concession could emerge through necessity to reduce harm. These arguments are addressed below.

The Qur'an cannot be reasonably expected to delve into the marriage relationships of sexual minorities. It merely delineates broad ethical guidelines and leaves details to Muslims of their times. In the context of verses 4:15-16, Maududi had written that, "the Qur'an seeks merely to chart a broad code of law and morality and hence deals only with fundamental questions."

Past jurists were able to go against the grain of their societies based on the principle of adl (justice) as opposed to explicit Qur'anic backing and jurists like Tufi, Abduh and Rida advocated deriving rules even if they were not directly confirmed by the texts.

In a similar vein, Dr. Hashim Kamali asserts that the mujtahid (independent thinker) must exert himself for the benefit of people, as efforts for justice, even in the absence of rulings in the Sharia, will always be in harmony with the Sharia.

Verses 23:5-7 have been traditionally used to prohibit masturbation as a sexual expression outside marriage and concubinage. However, contemporary scholar Ghamidi claims that these verses are referring only to the prohibition of sexual activity with other individuals. Therefore, he contests the prohibition of masturbation upheld by the jurists Malik and Shafi.

Other scholars have also alleviated this textual prohibition of masturbation through different arguments. Some use extra-textual reasoning of comparing masturbation with bloodletting, others use the argument of necessity and alleviating hardship, some assert that non-penetrative acts can be expiated by supererogatory works and still others argue that fasting cannot be a pragmatic approach in contemporary times.

Collectively all of these positions suggest that a juristic opinion can be formulated, which can go against the classical grain. Certainly, these verses have not pre-empted the marriage of the khuntha mushkil (ambiguous sex) and transgender Muslims. The counter argument would be that both cases have been subsumed into a heteronormative context.

However, this criticism can be addressed by noting that marriage can be based on verses that are not necessarily fettered by heteronormativity. Specifically, a legal contract in contemporary times can be based on verse 9:71 that depicts mutual protectorship, verse 2:187 that depicts cooperation and harmony between spouses and verse 30:21 that upholds mawadda (affection), rahma (compassion) and tranquility between them.

Likewise, issues of dower, maintenance, divorce and prohibited marriage partners can all be addressed outside a heteronormative context. Indeed, specific rules can be easily derived from the higher principles that pervade Sharia and Islam.

Marriage falls under the rubric of muamalaat (social transactions) not ibada (worship). As such, all these regulations are subject to change based on time, location and circumstances. Given that marriage is no longer viewed as an ownership based contract, the understanding of mahr (dower) can be recast through its symbolic value and in cases of economic inequality between the spouses, the one who is better off socially and economically can offer it to other spouse.

As has been observed in the Tunisian family law reforms, stipulations can be placed in marriage against polygamy, for the right to divorce for both partners, the optionality of a wali (custodian), and for the economically better off spouse to uphold family responsibility. Likewise, the purpose behind idda (waiting period) is to reveal any hidden pregnancy; a rule that may be recast in the case of elderly women and sterile couples irrespective of their sexual orientation.

Just as prohibition of marriage to paternal and maternal aunts of one's wife was extended from the prohibition of marrying to two sisters at the same time, the prohibition of same-sex incest can be deduced from the prohibition to one's mother and sister in verse 4:23. Moreover, according to the body fluids theory of incest, ties between people established due to blood, milk and semen prohibit sexual relationship between them.

Fadel's point on the darura (necessity) framework may be problematic as it is usually applicable in life and death situations. For instance, the act of pork consumption is still deemed prohibited but it is tolerated under the extreme need to preserve life.

Given that man can live without sexual expression, the darura framework may not be applied for sexual expression unless there was an extenuating situation involving the choice between sexual expression and death. For instance, jurists like al-Ramli and Ibn Qayyim tolerated glances and kisses out of fear of the lover's death.

To the extent the darura framework has been applied in the cases of interest based mortgages, interest based pensions and masturbation, perhaps it can be applied in the case of Muslim same-sex unions as well. But as Fadel mentions that would not be a "fulfillment of an Islamic aspiration."

However, to the extent the Tunisian family reforms have unfettered marriage from its heteronormative context and given the fact of rising stay at home Muslim Dads, affirming same-sex Muslim marriage seems reasonable and plausible.

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