Progressive Muslims: On Justice, Gender and Pluralism (44 page)

Clearly, there was a hot argument on this issue among classical jurists, with no actual consensus on the nature of the act, the status of punishment for it, or the relation of punishment to the words of the Qur’an. It also appears that jurists faced opposition from commentators who read the Qur’an as a narrative of ethical exhortation rather than as a legal text, as did the authors of the Stories of the Prophets. When al-Qurtubi argued that the Prophet Lut’s conflict with his community was about forbidding anal sex between men and that this justified capital punishment against those men found doing this, he recognized at least two possible objections to his interpretation. Both of these objections were based on ethical readings of the same Qur’anic narrative. The first objection is that “the people of Lut were punished because of their disbelief in Allah and their calling their Prophet a liar [
kufr wa takdhib
] just like the rest of the ancient communities that were destroyed by Allah.” The second objection is that “the young children and old people of Lut’s community were included with the mature men in being punished, and that proves that their actions should not be considered in the realm of
hadd
crimes [were not primarily sexual intercourse].”
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After stating these objections from anonymous critics, al-Qurtubi dismisses them. Yet the points they raise are logical and ethically important, and are based on a literal

reading of the Qur’anic narratives about Lut. Al-Qurtubi’s dismissal of dissenting opinions cannot be construed as indicating consensus among the jurists on the legal status of anal sex between men.

In the face of dissenting opinion, how did jurists defend the position that anal sex between men deserved capital punishment (by stoning or by other means)? To defend this decision, Imam Malik simply noted that the people of Lut were destroyed by stones as hard as baked brick (
sijjil
) that fell from heaven. This is an argument by rhetorical association, not an argument by legal reasoning. However, it is a kind of argument that would prove very effective, and seems to be based on early precedent among the Companions of the Prophet (though not on the example of the Prophet himself).

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As noted above, jurists argued their cases based on the analogy that anal sex was like adultery, and that the Qur’an specified the firm and exact punishment for adultery. The earliest jurists did not make reference to specific
hadith
attributed to the Prophet Muhammad about anal sex between men. In fact, we have no evidence that the Prophet Muhammad ever punished any men for anal sex (or any women for same-sex behavior). We have no evidence that he addressed cases where people were accused of committing “the act of the people of Lut.” This leads to another radical assertion of this study; the Qur’an does not address homosexuality or homosexuals explicitly
and
the Prophet Muhammad did not act to punish people as homosexuals or for acts associated with them in his lifetime.

At a certain point in history,
hadith
attributed to the Prophet Muhammad began to circulate which addressed the issue of punishing men for having anal sex. This is just one specific case of a very general problem for Muslims ever since: the existence of reports, on a whole range of subjects, that circulate in the name of the Prophet without being reliably or verifiably known to represent the Prophet’s actual actions and teachings. As more and more jurists accepted Imam al-Shafi‘i’s argument that all legal decisions had to be based on
hadith
attributed to the Prophet, the role of these
hadith
changed radically. They had circulated informally as moral advice, but now began to harden and crystallize into formal “knowledge” about what the Prophet said and did. It is probable that such
hadith
came into being long after the Prophet had died, and were attributed to him in order to give them the force of association with the Prophet’s respected and revered personality.
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It is very difficult to establish the authenticity of most reports that circulate in the name of the Prophet Muhammad. But clearly, many reports were projected retrospectively back upon the Prophet without being reliably attributed to him. Muslims are confronted with
hadith
in which the Prophet reportedly speaks about issues that did not exist in his lifetime: such as the Shi‘i- Sunni schism, various theological “heresies,” and even the systematic collection of
hadith
. Reassessment of the authenticity of
hadith
reports is the key to legal and social reform among Muslims. However, in the contemporary period, there are less and less scholars who are trained in
hadith
criticism. Wahhabi and Salafi scholars, who may have such training, have no motive to critique
hadith
, for in their zeal to escape history and return to the Prophet’s own time, they reify
hadith
as unquestionable building blocks for their monolithic iconic image of the Prophet’s exemplary behavior.

The
hadith
that address the issue of punishing men for having anal sex are not linked to any specific case or event in the Prophet’s life. This is in marked contrast to the
hadith
that address the issue of adultery between a man and woman, which are linked to very detailed cases that preserve the names of the men and women involved during the Prophet’s lifetime. A review of
hadith
from the two most reliable collections (
Sahih Muslim
and
Sahih al-Bukhari
) reveals no evidence that the Prophet asserted, in word or deed, that homosexual relations were a
hadd
crime, or were to be equated with adultery, or ever punished any actual persons for “crimes” relating to homosexuality.
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Nor is there any
hadith
in these two most authentic collections in which the Prophet discusses Lut in relation to sexual acts or relationships.
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This writer further suspects that the very terms
Luti
and
Liwat
are not found in authentic
hadith
, although this would take more research to substantiate.

Based on this preliminary research, we can make some general conclusions about
hadith
. Most reports in which the Prophet reportedly condemns same-sex activities have weak chains of transmission and are found in
hadith
collections that are not the most authoritative.
Hadith
scholars in the medieval period

(when
hadith
criticism was still actively pursued in Muslim communities) explicitly debunked some of them for having forged chains of transmission. In the earliest period, jurists did not agree as to which
hadith
might be authentic and strong enough to form the basis of legal rulings.

It is very difficult to suppress
hadith
once they gain credibility and circulate widely. This is especially so when a report reinforces the common prejudice of patriarchal societies against same-sex relationships. Hanafi jurists earlier criticized the chain of transmission of
hadith
like “Whomever you find doing the act of the people of Lut, kill the active and the passive participant.”
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Al-Jassas rejects this
hadith
, since one of its transmitters, Amr ibn Abi Amr, is considered weak and unreliable. Similarly, he rejects the supposed
hadith
that reads “the one practicing the act of the people of Lut, stone the one on top and the one of the bottom, stone them both together,” since one of its transmitters, ‘Asim ibn Amr, is also considered weak and unreliable.
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Despite these critiques, the
hadith
continue to circulate and are frequently put to rhetorical and even legal use.

There is further historical evidence to suggest that these
hadith
were fabricated long after the Prophet Muhammad had died and were retrospectively projected back onto him.
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The earliest incident in which a man was punished for same-sex relations occurred during the rule of Abu Bakr, after the death of Muhammad. It is clear from this incident that the closest Companions of the Muhammad knew of no precedent for such punishment. The Prophet had never punished anyone for same-sex relations and had not specified a method of punishment. The Companions consulted together and decided to burn the man accused.
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This story is very revealing, since it shows the uncertainty of the Companions surrounding same-sex activity and confirms that the Prophet Muhammad himself had never specified it as a crime with a specific punishment. When Abu Bakr received report from a governor that he had found a whole town “doing the act of the people of Lut,” he gathered the Prophet’s closest Companions together to consult with them about what to do. ‘Ali ibn Abi Talib reportedly said, “This is a sin that no community from the known nations has perpetrated except one single community. Allah did to them what you all know [from scripture]. My opinion is that such people should be burned in a fire.” So the Companions agreed with ‘Ali’s idea that the punishment was burning.

This incident is certainly very disturbing. First, we don’t know exactly what the governor meant by “the act of the people of Lut.” If it were same-sex relations in general (or anal sex between men in particular) it is difficult to imagine a whole town being involved in a way that would be significantly different from other towns. It is highly probable that the town might have resisted the governor’s authority (as this occurred during the earliest years of the Islamic conquests when their rule was new and contested) just like the people of Lut resisted Lut’s assertion of authority over them. It may not have had anything

specifically to do with sexual acts. If the acts were sexual in nature, how could Islamic legal procedure have been applied (with four adult male witnesses to the actual act of penetration)? It is more probable that this was a case of putting down resistance to political conquest than enforcing Islamic “family values.” However, the Islamic jurists have interpreted this incident as the first case of actual punishment for same-sex activities.
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Even if that were the case, it shows us something more disturbing still. The earliest punishment was burning. It was based on Imam ‘Ali’s opinion about what to do (very roughly linked to his reading of the story of Lut from the Qur’an), but clearly not based on any precedent or oral teaching or exemplary conduct of the Prophet Muhammad. The supposed
hadith
that later circulated usually specify stoning as the punishment, not burning. This establishes that these
hadith
were later inventions, reflecting the jurists’ ongoing debate about whether anal sex between men was the legal equivalent to adultery with stoning as the
hadd
punishment. The conflict between stoning or burning as the appropriate punishment signals that the Prophet had not left any specific teaching about appropriate punishment, neither in word nor in deed.

Could it be that the Prophet never addressed the issue because he did not see it as an issue of crime and punishment, but rather as one variety of indiscretion? The Prophet certainly did encounter people in his Arab society in Mecca and Medina who had uncommon sexual identities and practices that contradicted the heterosexual norm. Researchers in pre-Islamic and early Islamic Arabic literature have uncovered a wealth of examples. Salah al-Din Munajjad has documented that same-sex practices existed among both men and women in pre-Islamic Arabia (refuting ideologues who claim that these practices were unknown among Arabs until the Persians introduced them during the Abbasid revolution).
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Everett Rowson has documented the very lively culture of “effeminate men” during the Prophet’s lifetime in Medina. These men took on women’s social characteristics and were especially noted as popular musicians and comedians; some of them were associated with same-sex sexual desire while others were not. These people were ambiguous in their gender and their sexuality. Yet the Prophet is not known to have censured any of them for sexual acts or sexuality in the wider sense. There is no report of the Prophet having any of them burned or stoned for sexual practices.

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Jurists claimed to enforce a punishment for same-sex acts that was based solidly on a literal reading of the Qur’an and legal proscription by the Prophet Muhammad. The evidence presented above shows that their assertions are based on legal analogy, not on literal interpretation. The analogy, in addition, is quite weak and is based on sources that are of doubtful authenticity. At its most basic level, this study argues that capital punishment for anal sex between men

is unjust and of questionable legal validity in Islamic law. There is not and has never been full juridical consensus that anal sex between men is a
hadd
crime (let alone less dramatic sexual acts that might be practiced in same-sex couplings).

In reading the story of Lut’s struggle with his obstinate and violent community, jurists have missed the point. Why does the Qur’an tell the narratives about Lut if the story is not about forbidding homosexuality in the abstract or same-sex practices in particular? This study argues that the story is primarily ethical in intent, not juridical. The jurists’ narrow focus on punishment for sexual acts obscures the deeper meaning of the story and the force with which the Qur’an tells it to an audience struggling to meet the challenges of faith and realize the fullness of the Prophets’ teachings on
tawhid
. Leaving behind an obsessive attention to anal sex and stigmatizing same-sex sexuality can actually be a positive act for contemporary Muslims, one that brings new clarity to questions of sexual ethics. Addressing sexual ethics is, in the view of this author, a more faithful reaction to a close reading of the Qur’an.

To get beyond the jurists’ obsessions, let’s return to the project of thematic interpretation of the Qur’an as presented in the Stories of the Prophets genre. This genre highlights how the Qur’an tells the stories of Prophets with an underlying unity of intention. Their situations are different, but their ethical message is the same to each community. Through different means, each community finds ways of rejecting their Prophet, and the means are often violent. The Qur’anic discourse on Lut, therefore, mentions his unique circumstances, but always stresses his commonality with the other Prophets who preceded him and came after him, like Noah, Abraham, Salih, Hud, and others. Fragments of Lut’s story are always retold in the Qur’an as part of a series about the seven exemplary punishments meted out to the communities of the past who rejected their Prophet.