SAME SEX MARRIAGE and MARRIAGE IN ISLAM

Dr. Ibrahim B. Syed

President

Islamic Research Foundation International, Inc.

7102 W. Shefford Lane

Louisville, KY 40242-6462

E-Mail: IRFI@INAME.COM

WEBSITE: WWW.IRFI.ORG

Marriage is a socially sanctioned union, typically of one man and one woman, in this connection called husband and wife. Typically they form a family, socially, through forming a household, which is often subsequently extended biologically, through children. It is found in all societies, but in widely varying forms.

History of same-sex marriage ¹

Same-sex marriage has been documented in many societies that were not subject to Christian influence. In North American, among the Native American societies, it has taken the form of two-spirit  type relationships, in which some members of the tribe elect to take on female gender with all its responsibilities. They are prized as wives by the other men in the tribe, who enter into formal marriages with these two-spirit  men.

In China, especially in the southern province of Fujian where male love was especially cultivated, men would marry youths in elaborate ceremonies. The marriages would last a number of years, at the end of which the elder partner would help the younger find a (female) wife and settle down to raise a family.

In Africa, among the Azande of the Congo, men would marry youths for whom they had to pay a bride-price to the father. These marriages likewise were understood to be of a temporary nature.

Finally, in Europe during Hellenic times, the relationships between Greek men and youths who had come of age were analogous to marriage in several aspects. The age of the youth was similar to the age at which women married (the mid-teens), and the relationship could only be undertaken with the consent of the father. This consent, just as in the case of a daughter's marriage, was contingent on the suitor's social standing. The relationship, just like a marriage, consisted of very specific social and religious responsibilities, and also had an erotic component.

Same-sex marriage around the world

Same-sex marriages currently are legally performed only in the Netherlands and Belgium. For the time being, the Canadian provinces of Ontario and British Columbia have also legalized same-sex marriage. Recently, the term "same-sex marriage" has been displacing "gay marriage", the term being perceived as less value-laden for the union of two partners of the same sex and also being more inclusive of bisexuals.

Legal recognition of same-sex marriage

In the late  20^th  and early  21^st  centuries, there has been a growing movement in a number of countries to regard marriage as a right which should be extended to gay and lesbian couples. Legal recognition of a marital union opens up a wide range of entitlements, including social security, taxation, inheritance and other benefits unavailable to couples unmarried in the eyes of the law. Restricting legal recognition to heterosexual unions excludes same-sex couples from gaining legal access to these benefits. (While opposite-sex unmarried couples without other legal impediments have the option of marrying in law and so gaining access to these rights, that option is unavailable to same-sex couples.) Lack of legal recognition also makes it more difficult for same-sex couples to adopt children.

Opponents of same-sex marriage

Some opponents object to same-sex marriage on religious grounds, arguing that extending marriage to homosexual couples undercuts the conventional meaning of marriage in various traditions, and does not fulfill any procreational role. In countries with monogamous marriages only, some opponents also claim that allowing same-sex marriage will re-open the door to the legalization of polyamorous marriage, or other forms they find objectionable. They also feel that same-sex couples should not be allowed to have or adopt children, and that same-sex marriage would make those adoptions easier; they hold that same-sex households are not an adequate environment for children to be raised in. Others simply do not recognize any pressing need for same-sex marriages.

Some libertarians object to same-sex civil marriages because they are opposed to any form of state-sanctioned marriage, including opposite-sex unions.

Many other people, while tolerant towards the sexual behaviour of others, see no reason to alter their society or government's traditional attitudes towards marriage and family.

Proponents of same-sex marriage

In response, proponents point out that traditional concepts of marriage have already given way to liberalization in other areas, such as the availability of no-fault divorce and the elimination of anti-miscegenation laws.  Some opponents counter that this shouldn't have happened in the first place. They also suggest that many people in modern societies no longer subscribe to the religious beliefs which inform traditional limits upon marriage, and no longer wish these beliefs to constitute the law. In fact, there are some religions that celebrate same-sex weddings or commitment ceremonies already; in Canada, the United Church of Canada, the country's largest Protestant denomination, has striven for the legalization of same-sex marriage.

In the United States, proponents of equal marriage rights for same-sex couples point out that there are over 1,049 federal rights and benefits denied same-sex couples by excluding them from participating in marriage. A legal denial of rights or benefits afforded to others, they say, directly contradicts the 14^th Amendment of the US Constitution which provides for equal protection and substantive due process under the law. Meaning that rights conferred to one group cannot be denied to another. In the 2003 case before the Supreme Court titled Lawrence V. Texas, the court held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment. Many proponents of same-sex marriage have noted that this ruling paves the way for a subsequent decision invalidating state laws prohibiting same-sex marriage.

Some conservative proponents of equal marriage argue further that by extending marriage to same-sex couples, marriage is in fact strengthened by involving more people in the U.S. institution and would encourage gay men and women to settle down with one partner and raise a family.

Other forms of same-sex partnership

The movement towards the legal recognition of same-sex marriages has resulted in changes in the law in many jurisdictions, though the extent of the changes have varied:

• Civil unions provide most of the rights and responsibilities of same-sex marriage, but use a different name for the arrangement. They exist in several European countries as well as in the U.S. in the state of Vermont, the Canadian provinces of Quebec and Nova Scotia, and the city of Buenos Aires, Argentina.

• Domestic partnership or registered partnerships provide varying degrees of privileges and responsibilities, usually far fewer than those found in civil unions. Their purpose is not limited to same-sex arrangements and they exist in many jurisdictions.

Even in jurisdictions where they are not legally recognized, many gay and lesbian couples choose to have weddings (also called "commitment ceremonies" in this context) to celebrate and affirm their relationship, fulfilling the social aspect of a marriage. Such ceremonies have no legal validity, however, and as such do not deal with issues such as inheritance, property rights or social security.

Some writers have advanced the idea that the term "marriage" should be restricted to a religious context and that state and federal governments should not be involved in a religious rite. Some regard this as a governmental intrusion into religion; they believe that all statutes involving domestic contracts should replace the word "marriage" with "domestic partnership" and thus bypass the controversy of gender. This would then allow a domestic contract between any two individuals who have attained their majority.

ISLAMIC PERSPECTIVE ²

Nikah is an Arabic term used for marriage. It means "contract". ("Aqd in Arabic). The Quran specifically refers to marriage as "mithaqun Ghalithun,". Which means "a strong agreement".

"and they have taken a strong pledge (Mithaqun Ghalithun) from you?" (Quran 4:21)

The seriousness of this covenant becomes very obvious when one finds the same term i.e., Mithaqun Ghalithun, being used for the agreement made between Allah and the Prophet before granting them the responsibility of the Prophethood. (Quran 33:7)

The Quran also uses the Arabic word "Hisn", suggesting "fortress" for marriage. Marriage is considered the fortress of chastity.

The Definition of Marriage (Nikah)

The original meaning of the work nikah is the physical relationship between man and woman.  It is also used secondarily to refer to the contract of marriage, which makes that relationship lawful.  Which of the two meanings is intended can be determined by the context in which it is used.

As for the definition of marriage in fiqh, the simple definition would go something like this:

"A contract that results in the two parties physically enjoying each other in the manner allowed by the Shari'a."

Since this only focuses on one aspect of the marriage contract, Muhammad Abu Zahrah (a modern scholar) defines it like this:

"A contract that results in the man and woman living with each other and supporting each other within the limits of what has been laid down for them in terms of rights and obligations."

Ibn Uthaimeen takes an even more comprehensive view of the institution of marriage in his definition of it as:

"It is a mutual contract between a man and a woman whose goal is for each to enjoy the other, become a pious family and a sound society."

The Purpose and Goals of Marriage

Like anything a Muslim does, marriage should only be undertaken after gaining an understanding of all that Allah has prescribed in terms of rights and obligations as well as gaining an understanding of the wisdom behind this institution.   Nearly all peoples and all societies practice marriage in some form, just as they practice business (buying and selling).  Umar ibn Al-Khattab used to expel people from the marketplace in Madina who were not knowledgeable of the fiqh of buying and selling.  Likewise, a Muslim should not engage in something as important as marriage without having understanding of the purpose of marriage in Islam as well as a comprehensive understanding of the rights and obligations, which it brings about.

One of the principles of Islamic Jurisprudence says that:  "The default state of all things is lawfulness until some evidence shows otherwise."   Based on this, if new foods are discovered, they are considered lawful, unless there is some specific reason or attribute which would make it forbidden for example if it is causes intoxication.  Relations between men and women do not follow this general principle and in fact are opposite to it.  The principle is that:   "Relations between men and women are forbidden until some evidence shows otherwise."

Procreation (Children)

On of the most important purposes of marriage is to continue and increase the population of the Muslims.  Clearly, this goal could be achieved without marriage, but when actions are undertaken in disobedience to Allah, they do not receive the blessing of Allah and the whole society is corrupted.  The Prophet (sas) said:

"Ankihoo fa inniy mukaathirun bikum al umam yaum al-Qiyama"
"Marry, for I will outnumber the other nations by you on Qiyama." (Ibn Majah - Sahih)

It should be stressed that the goal is not simply to produce any child that will live in the next generation. It is to produce righteous children who will be obedient to Allah and who will be a source of reward for their parents after they die.  The Prophet (sas) will NOT be boasting before the other nations on the day of Qiyama with children of Muslim parents who left the path of Islam.  Thus it is the responsibility of Muslim parents to seek the means of giving their children the training and education they need not just to grow, but to succeed as Muslims worshipping and obeying Allah.  This obligation may include migration (hijrah), establishing of Muslim communities and schools and other obligations.   As the scholars have said in another principle of fiqh:

"Maa laa yutimmu al-wajibu illa bihi fa huwa wajib."
"That without which an obligation cannot be fulfilled is itself obligatory."

Pleasure

Islam is the religion of the fitrah - the religion which is consistent with the natural instincts and needs of mankind.  It is not like the man-made (of modified) religions which set unnatural constraints on people whether self-inflicted prohibition of marriage (nuns and monks, etc.), prohibition of divorce or monogamy.  Men are inclined toward women and women are inclined toward men.   Marriage is the institution, which fulfills this desire and channels it in ways pleasing to Allah Most High.  Allah mentions this attraction:

{Zuyyina li an-naasi hubbu ash-shahawaati min an-nisaa'i wa al-baneen...}

{The love of the desires for women, sons, ... has been made attractive to people.}  The Qur'an, Aal-'Imraan  3:14

The Messenger of Allah himself made clear that the attraction between the sexes is something natural and not something to be denied or suppressed - only channeled in the ways pleasing to Allah Most High, saying:

"Hubbiba ilayya min dunyaakum an-nisaa'u wa at-teebu wa ju'ilat qurratu 'ainiy fiy as-salat."
"Women and perfume have been made beloved to me of this world of yours and my peace of mind is in the prayer."  (Ahmad & others - Sahih)

The desire of men and women for each other is an urge, which needs to be fulfilled.   If it is left unfulfilled, it will be a source of discord and disruption in society.  For this reason, the Prophet (sas) ordered all men who are capable of meeting the responsibilities of marriage to do it:

"Man kana minkum dhaa tawlin, falyatazawwaj fa innahu aghadhdh lilbasari wa ahsanu lilfarji wa man laa fa as-saumu lahu wijaa."
"Whichever of you is capable should marry for it will aid him in lowering his gaze and guarding his body (from sin).  As for the one who is not capable, fasting is his protection."  (An-Nasaa'i - Sahih)

The Ruling Concerning Marriage

Different Rulings for Different Cases?

What is the status of marriage in the Shari'a?  Is it obligatory or merely allowed?  Some of the Hanafi scholars have broken this question down into different cases:

1. If a person feels certain that he will commit something forbidden if he does not marry and he has the financial ability to marry, then marriage is in his case fardh (the highest level of the obligatory in Hanafi terminology).

2. If a person has the ability to marry and treat his wife properly and fears (strong probability) that he will engage in unlawful acts if he doesn't, then marriage in his case is wajib (obligatory).

3. If a person does not have the financial or physical means to marry or feels certain that he will not treat his wife properly then marriage in his case is haram (forbidden).

4. If a person has the means to marry, but feels strongly that he will not treat his wife properly, marriage in his case is makrooh (disliked).

5. If a person has the means to marry and has no fear of mistreating his wife or of committing the unlawful if he doesn't marry, then marriage in his case is mustahabb (preferred).

This last opinion is widely regarded as the "default" (al-asl) ruling in this question i.e., marriage, generally speaking is the preferred but not obligatory way and only becomes obligatory, forbidden, etc. in the exceptional cases.

Since the man is normally the one who goes looking for a spouse and proposes to her family, etc., these discussions normally focus on him.  Every point in the above discussion, however, applies to women equally as it does to men.

The Dhaahiri (Literalist) Opinion

In the Literalist school of thought, marriage is considered fardh 'ain - an absolute and individual obligation.  Among the evidence they cite are the following verse from the Qur'an and hadith of the Prophet (sas):

{Wa ankihoo al-ayaamaa minkum wa as-saliheena min 'ibaadikum wa imaa'ikum in yakunoo fuqara'a yughnihimu Allahu min fadhlihi wa Allahu wasi'un 'aleem (22) Wa lyasta'fif illadhina laa yajiduna nikahan hatta yughniahumu Alahu min fadhlihi}

{And marry off the single among you and among the righteous of your male and female slaves.  If they are poor then Allah will supply their needs from His generosity. And Allah is expansive, knowing.  (22) And let those who do not find marriage hold back until Allah grants them of His generosity.}  An-Noor 24:32-33

The following hadith of the Prophet (sas) seems to be a blanket "order" to all those with the capability to get married:

"Yaa ma'shara ash-shabaab man istataa'a minkum al-ba'a falyatazawwaj."
"O young men, whoever among you has the ability, let him marry."   Bukhari & Muslim

Conclusion Concerning the Ruling of Marriage

The opinion that marriage is - overall - preferred (mustahabb) seems to be the strongest opinion.  Ibn Uthaimeen further points out that if a person desires to be married, it becomes even more important.  He said:  "Marriage in the case of desire for such is preferred over superogatory acts of worship, due to the many good results and praiseworthy effects it has."

Also, it is clear that there is a collective obligation (fardh kifaya) on the Ummah as a whole to promote, defend and facilitate the institution of marriage.   If marriage suffers from neglect or, for example, unreasonably high dowries which force people to postpone marriage too long, it is a collective obligation on the Ummah to come to its aid and to ensure that as many people as possible live within the context of a marriage.  Also, if a the Muslims come to have too many single women because of the abandonment of polygamy, it become a collective obligation on the Muslims to address and correct this situation.  This is all clearly based on the command of Allah in the verse previously cited which starts out:

{And marry off the single among you...}

Review Questions

1.      True or False:  Marriage is the sunnah of the Messengers of Allah and everyone must get married.

2.      What is the ruling of marriage according to the Literalist school of thought?  What is their evidence?

3.      Give a Shari'a definition of marriage.

4.      What are some of the main goals and purposes of marriage in Islam?

5.      Under what circumstances could marriage be considered forbidden for a specific individual?

6. Under what circumstances could marriage be considered obligatory for a specific individual?

REFERENCES

1. www.wordiq.com/cgi-bin/knowledge/ lookup.cgi?title=Marriage

2. http://www.java-man.com/Pages/Marriage/Marriage02.htmlhttp://www.java-man.com/Pages/Marriage/Marriage02.html