Ibn al-Qayyim and Same-Sex Marriage

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With their rise to the forefront of the social justice movement LGBTQ activists have done much work to assert their civil rights and individual freedom to live as equals to everyone else in a way that they believe to be an authentic to their sexual identities. As a necessary part of this effort was a challenge to societal heteronormative assumptions and a politically active engagement to re-educate the public into accepting, albeit still with some boundaries, a spectrum of possibilities for sexual orientation.

The success of this work may be demonstrated in a 2015 Gallup poll showing that Americans grossly overestimate the percentage of gays and lesbians in the population. When asked, “Just your best guess, what percent of Americans today would say are gay or lesbian?” the American public estimated on average that 23% of Americans are gay or lesbian. In actuality, only 3.8% of the adult population identify themselves as gay, lesbian, bisexual or transgender. In other words, Americans overestimate the number of LGBTQ people in the population by six times.

While these numbers hardly changed in comparison to those obtained from the same poll conducted in 2002, the moral stance of the American public with regards to gay and lesbian relations has changed dramatically. 38% of Americans viewed gay and lesbian relations as morally acceptable and 35% were in favour of legalizing same-sex marriage in 2002. Today, 63% of Americans find gay and lesbian relations morally acceptable and 60% favour legalizing same-sex marriage. One would be hard-pressed not to see a relationship between this change in public attitude and the increased social pressure on those who in 15 years became the ones holding the attitude of the minority and how that could impact their views, which only yesterday they took for granted.

Putting aside the debates on who exactly gets included in the LGBTQ community, the specific reasons for why Americans overestimate the percentage of LGBTQ people in the population, and how such a big shift in moral attitudes during a relatively short amount of time could take place, there is a palatable change over the past 15 years for the normalization of alternative sexual behaviour and relations. Coupled with this change is a demand for conservative religious communities upholding what they believe to be Sacred Law governing sexual behaviour to re-visit their texts, and either disavow what are now deemed homophobic religious texts and rulings, or engage in any hermeneutic efforts to re-interpret their texts to fit in with what is considered moral progress. Muslims are no exception to this, which brings us to this post and an increasingly cited scholar in this area: Ibn Qayyim al-Jawziyya (1292–1350 CE / 691 AH–751 AH).

In response to a question about the tax imposed on non-Muslims living under Muslim rule, Ibn al-Qayyim found himself writing a three-volume text dealing with all rulings pertaining to the rights of non-Muslim minorities and the responsibilities that a Muslim government would have towards its non-Muslim citizenry. Ahkam Ahl al-Dhimma (Rulings of Religious Minorities Living Under Muslim Rule) is an extensive and informative text on how early Muslim jurists addressed these issues because although Ibn al-Qayyim was a jurist from the Hanbali school of law, he does include the juristic opinions from other schools and engages in legal comparative studies before offering his conclusions, which may or may not coincide with the established opinions of his adopted school.

In the attempt to establish traditional validity, Ibn al-Qayyim is quickly becoming a go-to figure to cite among Muslim intellectuals and in turn Muslim social justice activists to make the case for accepting or even supporting same-sex marriage. He is often cited to have allowed Zoroastrians to engage in incestuous marriages, which would not be permitted for Muslims under Islamic law, and this could be used to build a case based on analogy for Muslims to support same-sex marriage. Although this post is not about the debate itself, what I would like to do is provide some clarification to what Ibn al-Qayyim actually said, because from what I have been seeing it seems to me that his words about this specific issue have not been quoted in full.

On the topic of marriages practiced by non-Muslims that are deemed invalid under Islamic law, Ibn al-Qayyim says*:

We affirm for non-Muslims living under our rule marriages we deem invalid under two conditions:

First: That they do not seek our adjudication on them. If they do, we will not authorize for them what cannot be accepted in Islam

Second: That they believe those marriages are permissible in their religion. If they believed they were impermissible and invalid we will not authorize them, just as we do not authorize for them usury, murdering one another, and stealing each other’s wealth. Indeed, the Messenger of God ﷺ ordered the stoning of the Jewish man and woman who committed adultery [in accordance with their law in the Torah] and did not endorse their adultery.

If it is said: Do you authorize the incestuous marriages of Zoroastrians since they believe them to be permissible if they do not seek our adjudication? It was said: This matter has two opinions from Imam Ahmad:

One of them: That they are authorized on this, which was mentioned in the narration of Muhanna when he was asked about whether a Zoroastrian should be prevented from engaging in an incestuous marriage, and it was mentioned to him the Hadith of Umar [where the Prophet ﷺ said], “Dissolve incestuous marriages among the Zoroastrians.”

He [i.e., Imam Ahmad] replied, “Al-Hasan (referring to al-Basrī) said: the Prophet ﷺ sent al-Ala’ ibn al-Hadramī to Bahrain, and he accepted their marriages and did not rebuke them.

And he said in the narration of Abu Tālib, “Do not separate between the Zoroastrian spouses. Rather, he [ﷺ] said, ‘Treat them in the same way as the People of the Book [i.e., Jews and Christians]'” even though they are not from the People of the Book.

If it is said: Then do you authorize them to fornicate, engage in homosexual acts, and usury, since these are not as weighty as incestuous marriages? The reply was: We do not authorize this, as was stated by Imam Ahmad in a narration from Ibrahīm ibn Abban al-Mousali regarding what to do about a Zoroastrian on a dead-end road where he is fornicating. [Imam Ahmad] said, “He’s to be removed and not left alone, because Muslims fornicate with him.”

The difference between authorizing a Zoroastrian’s incestuous marriage and authorizing his fornication, usury, and homosexual behaviour is that the latter’s harm trespasses to Muslims, whereas the harm of his incestuous marriage is limited to him.

Ibn al-Qayyim continues to discuss the different opinions of Imam Ahmad and others, as well as the various narrations weighing in on the issue of Zoroastrian incestuous marriages during their time. But what is clear is that his treatment of this topic explicitly excludes any attempt to make an analogy between permitting Zoroastrian incestuous marriages and homosexual behaviour and by extension same-sex marriage. The reasoning he offers seems to have nothing to do with how rare or prevalent a practice is as some may suggest. Rather, it was about how restricted a practice would be to any particular community. Ibn al-Qayyim drew a line to what can be accepted, which can be argued as tacit endorsement, at the point of shared public space. Whereas Muslims would not be able to engage in incestuous marriages as Zoroastrian do, monetary transactions and other forms of sexual behaviour represent a qualitatively different problem because the lines dividing different communities are no longer present.

As alluded to earlier, this is not a refutation nor is it about endorsing one side over another. As the discussion on this issue continues, and the vision of the Muslim community’s engagement with society at large as one group co-existing among others is negotiated, it is important to remember that if someone would like to cite any scholar in support for a position, lest they want to inadvertently undermine their case, he or she should at least be aware of what was actually written.

* The original Arabic passage was from p. 764 in the Ramadi lil-Nashr edition.


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