Obergefell, Marriage Equality and Islam in the West

The Supreme Court of the United States of America on June 26 issued its long-awaited decision in Obergefell on the constitutionality of limiting marriage to heterosexual couples. Although the decision to strike down state laws limiting marriage to heterosexual couples was decided by the narrowest of margins, 5-4, and although it elicited four dissents condemning the court for arrogating to itself powers that ought to be reserved to legislatures in a democratic republic, the decision was unsurprising to anyone who had been following the long trail of litigation involving the status of same-sex relationships in the U.S. over the past 20 years. Perhaps the only surprising element of the decision was its rationale: Instead of taking a cautious approach grounded in the equal protection clause of the 14^th Amendment, Justice Anthony Kennedy’s opinion took a sweeping approach grounded in the human dignity of same-sex couples, a position that led him to conclude that the exclusion of same-sex couples from the legal institution of marriage violated a fundamental liberty right as a matter of substantive due process.

By tedeytan via Wikimedia Commons

In holding that the constitution requires states to extend marriage to same-sex couples as an inalienable component of individual liberty, the United States becomes the 22^nd country to recognize same-sex marriages. Fifteen of those countries have recognized same-sex marriages since 2010. While only a distinct minority of countries recognizes same-sex marriage, political momentum, along with the power of the United States and its European allies, virtually guarantees that number will quickly increase. Very soon, a refusal to recognize same-sex marriage will demarcate civilized Western democratic states from the uncivilized rest, including the Muslim world, and inevitably increase global tension. Muslims seem to understand that now that the U.S. has endorsed the incompatibility of restricting marriage to heterosexual couples with the equality of homosexual persons, something very important has changed in the global discourse.

Thus, Muslims writers have taken to addressing this issue with a concern and urgency that earlier decisions to legalize same-sex marriages by Western and Latin American countries did not. Reza Aslan and Hasan Minhaj, for example, published an “open letter” to American Muslims, urging them to support same-sex marriage if only as the only reasonable strategy facing an embattled religious minority. Others, such as Dr. Jasser Auda, have taken a more cautious approach, emphasizing that although Muslims must respect the law of the countries in which they live and the rights of individual homosexuals as persons, they must also recognize that Islam has its own views of marriage that take priority over secular norms when they conflict, and because Islam clearly and unequivocally limits marriage to heterosexual couples, the law does not change Islamic conceptions of marriage. Unsurprisingly, some Muslims in North America are making increasingly vocal demands that Muslims revise their understanding of Islamic law to make room for same-sex marriages.

Each one of these reactions carries with it its own predicaments. The Aslan-Minhaj position is grounded in appeals to political pragmatism that are eminently sensible, but lack any kind of theological substance beyond a bland appeal to the notion of the acceptability of moral disagreement about the sinfulness of homosexuality, completely sidestepping the consensus of Muslim tradition that deems same-sex acts to be illicit. Auda’s position articulates a sensible middle ground that Muslims can take vis-à-vis secular society, and one that resembles the position of the Catholic Church, but offers nothing to homosexual Muslims living in North America, nor guides Muslim communities living in jurisdictions where same-sex marriage is legal as to how they should interact with homosexual Muslims in their communities. The third position attempts to articulate a theological argument for expanding the Islamic conception of marriage, but fundamentally fails to address the profoundly heteronormative structure of Islamic sexual ethics and family law.

The dilemma facing North American Muslims in the wake of the Obergefell decision, moreover, is not simply legal, as might arguably be the case with other culturally controversial decisions such as Roe v. Wade. Unlike abortion, which is a one-time act, marriage is an ongoing relationship, toleration of which does not entail application of a principle of privacy (satr) or forgiving mistakes (ʿafw), but rather accepting an ongoing status that traditional conceptions of Islamic morality would deem to be unacceptable and demand intervention. (The classic distinction in Islamic law between an immoral act that should be tolerated and that which must be interdicted is based precisely on this notion: Because an act of adultery is merely a personal sin, the individuals need not be punished, but two people cohabitating in the absence of marriage must be separated because of the ongoing nature of the violation of the Shariah.) The very rhetoric deployed by Justice Kennedy in his majority opinion, moreover, is quasi-theological. Indeed, he expressly uses the adjective “transcendent” twice to describe the ends of marriage, ends that are so sublime that to deny same-sex couples the right to participate in this institution is to deprive them of a fundamental component of human liberty. In short, the majority’s opinion in Obergefell asserts a moral doctrine regarding the nature of marriage that openly challenges the validity of traditional doctrines of marriage, which limit it to heterosexuals. And despite the majority’s affirmation of the sincerity and good faith of many of those who oppose the recognition of same-sex marriage, I fear that Justice John Roberts’ dissent is correct insofar as he suggests that continued opposition to same-sex marriage will quickly be tarred as nothing more than bigotry in the eyes of most liberal supporters.

There is little need, I think, to rehearse the textual grounds that render a claim for the potential legality of same-sex marriages within Islamic doctrine far-fetched. But if one were to indulge the hypothetical that the Arabic word for spouse, zawj, is gender neutral on its face and therefore included a person of the same sex, numerous textual difficulties, if not absurdities, would arise. Take one example, al-Nisāʾ (Women), 4:12, which provides “and to you (lakum) is half of what your spouses (azwājukum) leave behind.” In theory, this verse, which deals with the inheritance rights of spouses, could be read in a gender-neutral fashion, but only if one ignores the concluding condition of the verse, which states “if they (hunna) leave no children.” The use of the pronoun hunna, which is used exclusively to refer to a group of females in contrast to the gender-inclusive third-person plural Arabic pronoun hum, means that we have no choice but to read the “you” at the beginning of the verse as a reference to males, and “spouses” as a references to females. The verses establishing prohibited marriage partners, too, would be woefully under-inclusive if the Quran contemplated the possibility of same-sex marriages. In short, the obstacles to recognizing same-sex marriage from the Quran’s perspective go well beyond issues of prohibited forms of sexual gratification between members of the same sex; after all, heterosexuals can engage in prohibited forms of sex, but illicit heterosexual sex is explicitly contrasted to licit heterosexual sex within a lawful relationship. But the Quran cannot be plausibly read (nor do I know of any texts in the Sunna) as contemplating any form of same-sex intimacy.

Another tack one could take to create space for same-sex marriage within Islam would be to analogize it to heterosexual marriage. This argument, too, would have to overcome substantial obstacles. First, insofar as it has been established that the word zawj is a gendered term, then verses such as those in al-Muʾminūn (The Believers), 23:5-7, seem to foreclose the possibility of analogy with respect to sexual intimacy:

And those who guard their genitalia, save with their spouses or with those whom their right-hand possesses, for such are free of blame. As for those who seek [gratification] beyond these, then they are transgressors.

The plain sense of these verses (and others like them) is not only that sexual interaction with a spouse or concubine is legitimate, but that every other form of sexual gratification is transgressive and therefore illicit. This verse would seem, therefore, to foreclose the possibility of legitimate same-sex sexual intimacy, and accordingly, preclude an Islamic conception of same-sex marriage, unless it were to be emptied of any sexual content. But even if one were to attempt to analogize same-sex marriage to heterosexual marriage in the Islamic context, where would one begin? The entire structure of the Islamic law of marriage is gendered, with rights and obligations specified along gender lines. This is not to deny the presence of mutuality in the classical Islamic marriage contract, but the manner in which mutual rights are specified is, as a rule, a function of gender. How could obligations of dower and maintenance, for example, be applied to a same-sex marriage, to say nothing of the rules of divorce?

More plausible than either a claim that revelation can be read to support same-sex marriages, or that same-sex marriages can be assimilated to the model of marriage set out in revelation, would be the claim that the reality of contemporary homosexuality in Western liberal societies is different than the homosexuality that was practiced in the ancient world, or at the time of the Prophet (S). One might take the view that the homosexuality that the Quran condemns is that which is freely chosen and is thus condemned as a kind of sexual excess that knows no restraint. One could interpret the story of Lot in precisely such a way: that a substantial portion of the men in that town preferred same-sex relations over heterosexual relations, even though they were perfectly capable of heterosexual relations. The decisive claim of modern homosexuality, and one that Justice Kennedy’s opinion emphasized, is that it is both a non-voluntary orientation, and one that is immutable. Both propositions are crucial for the coherence of the argument that to deprive homosexuals of the benefits of marriage is an arbitrary deprivation of liberty.. But these naturalistic premises of the argument give it a quality of sounding in necessity rather than the sexual freedom of individual homosexuals: It is precisely because they are not free to conform to heterosexual norms that they must be accommodated.

Without necessarily endorsing such an argument, it seems to me that such a premise — the concept of necessity — offers a more promising approach to accommodating same-sex marriage in an Islamic context, albeit it would be one that could not recognize such unions — assuming that some proper formula could be constructed — as morally valuable, from the Islamic perspective, as a heterosexual marriage. It would be a concession to necessity, an attempt to reduce harm, and not a fulfillment of an Islamic aspiration as such.

But, beyond the challenge of same-sex marriage is the much larger set of questions that the sexual revolution poses to Islamic sexual ethics. The sexual revolution, which rendered consent both the necessary and sufficient condition for legitimate sexual gratification, posits a view of sexuality that is diametrically in conflict with Islamic conceptions of sexuality. Islam recognizes the importance of consent to legitimate sex, but it does not recognize consent to sexual pleasure as sufficient to render sex legitimate. Rather, it seeks to discipline the channels of sexual desire so they are manifested exclusively in licit — and publicly recognized — relationships that are reasonably expected to result in enduring unions. The exclusivity of marital sex is mitigated, however, by the prospect of divorce and remarriage. Islam, by providing for relatively easy divorce and remarriage, in contrast to Catholicism or Eastern Christian sects, contemplates a greater degree of sexual freedom than its insistence on marriage as the exclusive relationship (at least in contemporary circumstances) within which legitimate sex should occur might indicate. This places Islam’s approach to sexuality in a middle position between the traditionalist Christian commitment to marital indissolubility, even in the face of palpable marital unhappiness and dysfunction, and the post-sexual revolution’s hedonistic ethic of sexuality, whose only restraint is that of consent, which ultimately renders the idea of marriage as a stable commitment untenable. Only by emphasizing Islamic sexual ethics as a system of restrained sexual freedom can Western Muslims begin to articulate a principled response to the ethics of the sexual revolution generally, and same-sex marriage and marriage equality particularly.

Finally, and from the broader perspective of an American citizen, it is more than a little ironic that Justice Kennedy’s opinion is so thoroughly grounded in the virtues of marriage. Whether one agrees with his view that the changes that have taken place in American marriages over the past 50 years have strengthened the institution, it is indisputable that marriage has become less and less a universal institution and more and more a preserve of the elite. It is unlikely that inclusion of same-sex couples from marriage will change this trend. Perhaps, however, now that the battle for same-sex marriage is over, the U.S. might be better situated to take seriously Justice Kennedy’s idea of the goods of marriage and the distributional issues within the U.S. that prevent those goods from being more universally accessible to all Americans, regardless of sexual orientation.

This article originally appeared in the Spring/Summer 2015 print issue of The Islamic Monthly.