I found a recent article in the National Law Journal quite fascinating, respecting a suit against the J. Reuben Clark Law School of Brigham Young University by a group called Free BYU for, allegedly, moving to expel or exclude or otherwise limit the freedoms of two groups of people. The first are homosexuals, whose actual orientation is not at issue. Instead, quoting the BYU Honor Code:
[T]he Honor Code requires all members of the university community to manifest a strict commitment to the law of chastity. Homosexual behavior is inappropriate and violates the Honor Code. Homosexual behavior includes not only sexual relations between members of the same sex, but all forms of physical intimacy that give expression to homosexual feelings.
The last “but” is interesting, and in some ways demonstrates striking parallels between Mormonism and Shi’i Islam. Sunnism is somewhat different, in that it tends to locate any scriptural crime as concerns homosexuality largely through analogy to the well established scriptural crime involving vaginal penetration (more appears in Rouayheb’s book.) This is precisely why the Hanafis have such a problem with finding homosexual conduct to be scripturally criminal, a point made by Christian Lange, among others, and one I have discussed in an earlier post. It is also why they don’t find lesbianism scripturally criminal, nor any sort of male to male intimacy that does not analogize to vaginal penetration. These are all sins, to be clear, and it should surprise nobody that medieval Sunni jurists were not LGBTQ friendly, but the conduct did not constitute a crime for which God mandated punishment. Rather, at most they were examples of sins and general licentiousness that a true Islamic society led by a good Muslim leader could punish to ensure piety and proper Islamic behavior.
Shi’i jurists, however, take a very different view. As I’ve discussed in my own scholarship on the subject, the Shi’i view was that criminalized by scripture and therefore Command of God were not only anal penetration of one man by another, but also (i) a woman having sex with another, (ii) “forms of physical intimacy that give expression to homosexual feelings”, which the jurists described in shorthand form as “thighing” , and (iii) two men “lying naked together under a blanket.” All of these had mandated punishments for them.
What is interesting, and analogous to the BYU Honor Code, is that the rules as against homosexual conduct are more stringent than those concerning heterosexual conduct. Heterosexuals, to be clear, are not supposed to be engaging in nonmarital sex. It violates the BYU rule of chastity, and constitutes the Islamic crime of fornication. But homosexuals, in addition, are obliged to avoid additional forms of intimacy that do not apply to heterosexuals. There is no scriptural crime of thighing for the Shi’a jurists unless there are two men involved. A man and unmarried woman lying together under a blanket do not receive obligatory punishments. Nor do they seem to violate the BYU Honor Code, unless they actually end up engaging in actual sex. The lurking danger, it seems, of homosexual conduct is so much more acute that more steps need to be taken to prevent it.
So goes one interesting similarity. Another, this time between Mormonism and classical Islamic law generally, Sunni and Shi’i, lies with respect to the notion of religious freedom and tolerance of those from other religions. According to the National Law Journal again:
Non-Mormons are allowed to attend—paying higher tuition than Mormons—but students who leave the Mormon faith can be expelled.
And from the BYU Honor Code itself:
Excommunication, disfellowshipment, or disaffiliation from The Church of Jesus Christ of Latter-day Saints automatically results in the loss of good Honor Code standing. Further, a student is not in good Honor Code standing if his or her ecclesiastical endorsement has either lapsed or has been withdrawn . . . .
In other words, if you were never of the faith, you may belong. You are not an equal, and your lack of equality will be made manifest through financial means primarily. Hence the primary obligation of the dhimmi to pay the jizya in classical Islamic law, and the obligation of the non-Mormon to pay higher tuition.
There is also an obligation of the minorities to recognize the primacy of the dominant religious order to which they do not belong. Hence, again from different sections of the Honor Code, out of order:
[A]ny . . . conduct or action inconsistent with the principles of The Church of Jesus Christ of Latter-day Saints . . . is not permitted.
Those individuals who are not members of The Church of Jesus Christ of Latter-day Saints are . . . expected to maintain the same standards of conduct, except church attendance.
In other words, proper conduct is fundamentally determined by the primary order. Others don’t have to actually worship the One True God in the One True Church, but they do have to abide by its rules. Similarly, the classical Islamic society, particularly in Shi’ism, demanded some level of respect for Islamic rules and indeed the Muslim sacred, even among non-Muslims. Just as spitting on an image of Joseph Smith would surely be deemed “conduct . . . inconsistent with the principles of The Church of Jesus Christ of Latter-Day Saints”, so insulting the Prophet Muhammad would be deemed absolutely unacceptable for anyone to do in the Islamic society, including non-Muslims. This does not necessarily make it acceptable to spit on an image of the Prophet Muhammad at BYU, nor to spit on a cross under traditionalist Shi’i accounts. I assume in the former case, and I know in the latter, that jurists would take a very negative view of that sort of insult of the other. But they are surely less protective, and in any event, whether it is acceptable conduct, or it is not, is determined entirely from the frame of reference of the dominant religion. We will tell you what is sacred and what is respectful whether you happen to like it or not, or believe it or not, you will abide by it. If you do, you may stay. If you do not, we will remove you.
The same limited dispensation to be, however, is not given the apostate. The Mormon who has been excommunicated, or the Muslim who fails to repent a heresy, is not merely outside of the faith. They are a traitor to it, and they cannot remain. The other is one thing, but the one who has joined the other, from our side, quite another. And of course, by extension, the others may join us, but none of ours can go to them. Presumably nobody has ever been expelled from BYU for converting TO Mormonism and the same would be true of a convert to Islam.
This, of course, makes conversion a one way trip. Join, and your tuition is lower/your jizya obligation disappears. Leave, and you are no longer merely an outsider. You are now an apostate. Within Shi’ism, there is some limited ability to rethink that decision and repent as for a convert who seeks to convert back to their original faith. The same is not true for the person born Muslim, who has no opportunity to repent (in contradistinction to the Sunni schools). While the BYU Honor Code makes no such distinctions, it probably does not need to. The entire affair at BYU is rife with rights to appeals and American style due process, within which there is ample opportunity to take such circumstances into account, for the sincerely repentant. This is not so within Shi’ism, with its traditionalist reliance on purportedly bright line rules.
The obvious qualification is that there is an important difference in the respective realms of governance. The BYU Honor Code would locate its legitimacy purely in the arena of private law. The violator is perfectly free to leave the community at any time, and fornicate with her girlfriend to her heart’s content in her condo in Salt Lake City fully stocked with Starbucks Coffee and Macallan 18 yo Scotch. The university claims no authority nor no right to do anything more than expel her in the worst case. Obviously, things were different for the universal ideal Islamic state, where criminal punishments were very much part of the maintenance of the order.
Yet I do wonder, if there is space for a BYU to operate as it does, whether or not there is ample space for Muslims of the most conservative and traditionalist variety (not me! not me!) to come pretty close to replicating much of their ideal imagined Islamic society in their own theological/university community in the United States, complete with rules banning insults to the Prophet, removing apostates and subjecting non-Muslims to discriminatory treatment. There are striking parallels.
Then again, Donald J. Trump just won New Hampshire, so probably not.