Revisiting Same Sex Marriage as a Muslim Legal Realist
My previous post took on the question of same sex marriage using an approach I might describe as a form of intellectual defense/advocacy. Let me, however, don my beloved Legal Realist hat and look at this from a more detached, academic perspective.
I expect that while some American Muslims might well support the call for recognition of same sex marriage on the basis of the aman, others will not. I further suspect that the older the Muslims in question are, and the less rooted they are in the United States, the less likely they are to be in support. In some ways, this I suppose is obvious, in that tolerance of homosexuality is less likely to be found among those born elsewhere, or older, after all.
But of course this is a legal question, one deriving from an interpretation of religious doctrine, it's not supposed to be a question of preference. I did not suggest that Muslims have to like homosexuality, or even find it permissible in Islam. I specifically said I wouldn't address that, and Muslims can draw their own conclusions on this. I am suggesting that we already believe in a social contract wherein specifically marriages are permitted under American law and yet deemed void by the same shari'a sources you would turn to in order to find homosexuality deemed a great sin, and specifically the interfaith marriages of Muslim women. And we view that social contract as one we are ethically obligated to uphold. All last post.
Yet the difference in practice as between broad Muslim acceptance of interfaith marriages involving Muslim women as being legal by secular law (if not necessarily permissible under religious law, according to traditionalists) and same sex marriage is striking. One is broadly okay as legal under some other country's secular law, the other deeply contested, despised by many and considered an affront to Islam. Thus, as illustration, I have an Iraqi friend who is quite pious and came to the U.S. specifically to attend the marriage of a Muslim woman to a non-Muslim man whom he regards as a friend. Ask him if he finds the marriage acceptable Islamically, I think he'd be forced to say no. Ask him if that means he won't attend, he'll shrug his shoulders and say something to the effect of not my daughter or family member, what business is it of mine? Yet he'd never attend a same sex wedding I am sure, the idea would be horrifying to him. Perhaps I am unfair, I never asked, I can say with confidence it would be horrifying to most Iraqis, including large numbers who would attend a marriage of a Muslim woman to a nonMuslim man.
In any event, even as to those who wouldn't attend either, they don't think it's wrong to live in a nation that permits the marriage of Muslim women to non Muslim men. Yet by the very same sources to which they choose to turn, those marriages are void and those people engaging in it are committing the sin of fornication, which is certainly the very most you could say of a gay couple (and even then more by analogy than direct application). Again, the liberals can question the sources if they want to, that's fine, but for these purposes I'm simply pointing out that if one takes the traditional sources seriously, they condemn sex out of marriage, and neither same sex marriages nor interfaith marriages involving Muslim women would be recognized as marriage. In fact, I think I could develop a pretty good argument under ultra conservative classical text on why a same sex marriage between two non Muslims shouldn't concern Muslims living under an aman at all as it doesn't involve the community, it involves outsiders in a non-Muslim state doing their own thing. Whereas the claim as concerns the interfaith marriage is a harder one to sustain.
So why the visceral reaction against one as being horribly un-Islamic, why the vitriol against same sex marriage in particular when other forms of zina are winked at or ignored? I don't think it's doctrinal or could be defended as such. Simply stated, it's because homosexuality is viewed as particularly repulsive for reasons independent of doctrine. In the same way, I suppose, that some things I regard as sins (say, pork eating) make me sick while other things (say, heterosexual extramarital sex) which I of course abjure and regard as sinful do not repulse me. If I eat something and find out later it's pork, I want to vomit. If I see an attractive woman on television, I don't. Yet of course that's not doctrinal, it's not legal, it's merely preference.
And that same preference, I submit, drives American Muslim opposition to same sex marriage where it exists. Nothing more, nothing less. Where Muslims are more exposed to homosexuals, they are less likely to regard gay marriage with such abhorrence and more willing to shrug their shoulders and point out that other US marriages are not Islamic either. Where they are less exposed and come from less tolerant environments, the reverse is true. Preference, ideological preference stripped of doctrinal significance of any kind, is all that drives this debate. The rest is just mask.
HAH
I expect that while some American Muslims might well support the call for recognition of same sex marriage on the basis of the aman, others will not. I further suspect that the older the Muslims in question are, and the less rooted they are in the United States, the less likely they are to be in support. In some ways, this I suppose is obvious, in that tolerance of homosexuality is less likely to be found among those born elsewhere, or older, after all.
But of course this is a legal question, one deriving from an interpretation of religious doctrine, it's not supposed to be a question of preference. I did not suggest that Muslims have to like homosexuality, or even find it permissible in Islam. I specifically said I wouldn't address that, and Muslims can draw their own conclusions on this. I am suggesting that we already believe in a social contract wherein specifically marriages are permitted under American law and yet deemed void by the same shari'a sources you would turn to in order to find homosexuality deemed a great sin, and specifically the interfaith marriages of Muslim women. And we view that social contract as one we are ethically obligated to uphold. All last post.
Yet the difference in practice as between broad Muslim acceptance of interfaith marriages involving Muslim women as being legal by secular law (if not necessarily permissible under religious law, according to traditionalists) and same sex marriage is striking. One is broadly okay as legal under some other country's secular law, the other deeply contested, despised by many and considered an affront to Islam. Thus, as illustration, I have an Iraqi friend who is quite pious and came to the U.S. specifically to attend the marriage of a Muslim woman to a non-Muslim man whom he regards as a friend. Ask him if he finds the marriage acceptable Islamically, I think he'd be forced to say no. Ask him if that means he won't attend, he'll shrug his shoulders and say something to the effect of not my daughter or family member, what business is it of mine? Yet he'd never attend a same sex wedding I am sure, the idea would be horrifying to him. Perhaps I am unfair, I never asked, I can say with confidence it would be horrifying to most Iraqis, including large numbers who would attend a marriage of a Muslim woman to a nonMuslim man.
In any event, even as to those who wouldn't attend either, they don't think it's wrong to live in a nation that permits the marriage of Muslim women to non Muslim men. Yet by the very same sources to which they choose to turn, those marriages are void and those people engaging in it are committing the sin of fornication, which is certainly the very most you could say of a gay couple (and even then more by analogy than direct application). Again, the liberals can question the sources if they want to, that's fine, but for these purposes I'm simply pointing out that if one takes the traditional sources seriously, they condemn sex out of marriage, and neither same sex marriages nor interfaith marriages involving Muslim women would be recognized as marriage. In fact, I think I could develop a pretty good argument under ultra conservative classical text on why a same sex marriage between two non Muslims shouldn't concern Muslims living under an aman at all as it doesn't involve the community, it involves outsiders in a non-Muslim state doing their own thing. Whereas the claim as concerns the interfaith marriage is a harder one to sustain.
So why the visceral reaction against one as being horribly un-Islamic, why the vitriol against same sex marriage in particular when other forms of zina are winked at or ignored? I don't think it's doctrinal or could be defended as such. Simply stated, it's because homosexuality is viewed as particularly repulsive for reasons independent of doctrine. In the same way, I suppose, that some things I regard as sins (say, pork eating) make me sick while other things (say, heterosexual extramarital sex) which I of course abjure and regard as sinful do not repulse me. If I eat something and find out later it's pork, I want to vomit. If I see an attractive woman on television, I don't. Yet of course that's not doctrinal, it's not legal, it's merely preference.
And that same preference, I submit, drives American Muslim opposition to same sex marriage where it exists. Nothing more, nothing less. Where Muslims are more exposed to homosexuals, they are less likely to regard gay marriage with such abhorrence and more willing to shrug their shoulders and point out that other US marriages are not Islamic either. Where they are less exposed and come from less tolerant environments, the reverse is true. Preference, ideological preference stripped of doctrinal significance of any kind, is all that drives this debate. The rest is just mask.
HAH
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