There is no concept analogous to "homosexuality" in Islam -- not in the sense of an innate identity, not in the sense of a behaviour, nor in the sense of a common identity of both (all) parties in sex between members of the same sex or gender. Instead, same-sex sexual expression manifests in a number of separate forms, which are not treated alike, either socially or juridically.
Rather, Islam concerns itself with sexual behaviors, rather than desires. In particular Islam condemns anal intercourse—whether with males or females—as a major sin. [1] The concept of sexual orientation is neither recognized nor accepted in Muslim society or in Islamic doctrine.
The traditional tolerance, literary and religious, for (chaste) pederastic love affairs which according to Khaled El-Rouayheb had been prevalent since the 800's began to be eroded in the mid-1800's by the adoption of European Victorian attitudes by the new Westernized elite. (El-Rouayheb, 2005, p.156)
Homosexuality in the Sharia
Dancing Köçek, a common object of masculine affections in the Ottoman empire. Photograph, late 19th c. Private collection.While there is a consensus that same-sex intercourse is in violation of Islamic law, there are differences of opinion within Islamic scholarship about punishment, reformation, and what standards of proof are required before physical punishment becomes lawful.
In Sunni Islam there are eight madhhabs, or legal schools, of which only four still exist: Hanafi, Shafi'i, Hanbali, and Maliki. The main Shia school is called Ja'fari, but there are Zaidi and Ismai'ili also. More recently, some groups have rejected this tradition in favor of greater ijtihad, or individual interpretation. Of these schools, according to Michael Mumisa of the Birmingham-based Al Mahdi institute:
The Hanafi school does not consider same-sex intercourse to constitute adultery, and therefore leaves punishment up to the judge's discretion. Most early scholars of this school specifically ruled out the death penalty; others allow it for a second offence.
Imam Shafi'i considers same-sex intercourse as analogous to other zina. Thus, a married person found to have committed same-sex intercourse is punished as an adulterer (stoned to death), and an unmarried person is punished as a fornicator (flogged).
The Maliki school says that anyone (married or unmarried) found to have committed same-sex intercourse should be punished as an adulterer.
Within the Ja'fari schools, Sayyid al-Khoi says that anyone (married or unmarried) found to have committed same-sex intercourse should be punished as an adulterer.
[edit] Interpretations
It is important to note that the punishment for fornication, adultery and homosexual acts etc., requires a certain amount of witnesses. By analogy, all schools require four (or eight) witnesses to the act of sexual penetration for the punishment to be applied. Although, some Muslims believe that if objective proof can be provided (such as through DNA testing, photography, etc.), that a punishment can still be applied, even without four witnesses to the act. [2]
The former regulations also make other Muslims believe (whether or not they regard homosexual acts as sinful), that the prior process' goal was to eventually abolish the physical penalties relating to acts of homosexual relations, that were already present within some religious scriptures and/or societies around the world, when Islamic teachings first arose. For example, some have interpreted certain verses within the Vendidad and Old Testament, as to prescribing capital punishment for those who (allegedly) commit homosexual acts. [3] [4] According to the prior view, the Hadith requires: (1) bringing forward at least 4 witnesses of good character, who can testify to seeing the act of sexual penetration and/or (2) a guilty plea by the suspects themselves. [5] Thus, it can be argued that the scripture based principles are so rigorous in their search for evidence, that they create the near impossibility of being able to reach a verdict that goes against the suspect in any manner. [6]
According to the modern Islamic scholar Yusuf al-Qaradawi:
"The jurists of Islam have held different opinions concerning the punishment for this abominable practice. Should it be the same as the punishment for zina, or should both the active and passive participants be put to death? While such punishments may seem cruel, they have been suggested to maintain the purity of the Islamic society and to keep it clean of perverted elements." ― The Lawful and the Prohibited in Islam, p. 165 .
[edit] Homosexuality in modern Muslim countries' laws
Same-sex intercourse officially carries the death penalty in six Muslim nations: Saudi Arabia, Iran, Mauritania, Sudan, Somalia and Yemen.[7] It formerly carried the death penalty in Afghanistan under the Taliban. The legal situation in the United Arab Emirates is unclear. In many Muslim nations, such as Bahrain, Qatar, Algeria, Pakistan and the Maldives, homosexuality is punished with jail time, fines, or corporal punishment. In some Muslim-majority nations, such as Turkey, Jordan, Egypt, or Mali, same-sex intercourse is not specifically forbidden by law. In Egypt openly gay men have been prosecuted under general public morality laws. (See Cairo 52.) On the other hand, Turkey has made tremendous efforts to legalize homosexuality and protect gays and lesbians from discrimination.
In Saudi Arabia, the maximum punishment for homosexuality is public execution, but the government will use other punishments -- e.g., fines, jail time, and whipping -- as alternatives, unless it feels that homosexuals are challenging state authority by engaging in LGBT social movements. [8] Iran is perhaps the nation to execute the largest number of its citizens for homosexuality. Since the 1979 Islamic revolution in Iran, the Iranian government has executed more than 4000 people charged with homosexual acts. In Afghanistan after the fall of the Taliban homosexuality went from a capital crime to one that it punished with fines and prison sentence.
Most international human rights organizations, such as Human Rights Watch and Amnesty International, condemn laws that make homosexual relations between consenting adults a crime. Since 1994 the United Nations Human Rights Committee has also ruled that such laws violated the right to privacy guaranteed in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. However, most Muslim nations (except for Turkey, which has been ruled by secular law since 1923 and recently has modernized its laws in order to meet the requirements of entry to the European Union) insist that such laws are necessary to preserve Islamic morality and virtue. Of the nations with a majority of Muslim inhabitants, only Lebanon has an internal effort to legalize homosexuality.[9]
Some Muslims have expressed criticism of the legal sanctions used against homosexuality. Reasons given by Muslims condemning the executions include the fact that some legal schools (e.g., Hanafi) regard it as unjustified, the argument that the death penalty is not specified for it in the Qur'an, the idea that the punishment is unduly harsh, and opposition to the idea that the state's laws should be based on religion. The introduction of the AIDS pandemic in the Muslim world has also promoted more discussion about the legal status of homosexuality, as the legal sanctions against homosexuality have made it difficult to initiate any educational programs directed at high risk groups.
While executions and other criminal sanctions curtail any public gay rights movement, it is impractical to give criminal sanctions to all homosexuals living in a Muslim country, and it is common knowledge (e.g. to visiting foreigners) that some young men will experiment with homosexual relations as an outlet to sexual desires born out of a natural love for the same sex. These discreet and casual homosexual relations allow men to engage in premarital sex with a low risk of facing the social or legal sanctions that would occur if they involved in adultery or fornication with a woman, where it is more likely to be found out about, as a result of a pregnancy or the woman hoping to force the man into marriage. Most of these men do not consider themselves to be gay or bisexual as these are sexual orientations. Muslim minds do not use these labels but rather the definitions mentioned previously.
A related problem to full enforcement of the laws against homosexuality is that because men are encouraged to developed close friendships with other men, and women are encouraged to develop close friendships with other women, homosexual love is encouraged, and while lust is not encouraged, both male to male and female to female sexual relationships have increased in recent years.
Since Islamic law requires a certain number of male witnesses to the homosexual act to testify in front of jurists, and Islam does place a strong value on the right to privacy in the home, thus homosexual relations that occur in private are theoretically outside the bounds of the law, unless it is brought out in the open as is the case if lewdness, theft, blackmail, murder, etc is also involved.
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