Since the slaughter of 49 Americans at a gay club in Orlando on June 12, there has been a lot of discussion about the motives of the killer, Omar Mateen. The 29-year-old killer had a long history of religious extremism dating back to his high school years, when he was sent home for cheering the attacks of 9/11. In 2010, he reportedly declared his desire to become a martyr and later was investigated for extremism by the FBI twice. The first investigation was in 2013 when his co-workers reported him for advocating extremist causes, and then again in 2014 for his close connections with a man at his mosque who fled the United States for Syria to become a suicide bomber for the Islamic State. He also reportedly became a fan of the Islamic State’s beheading videos, watching them online and talking about them with others.

During the massacre the killer made a number of statements to 911 operators and on social media where he explained his actions. In one case, during the attack, he told 911 operators that he carried out these acts on behalf of the Islamic State, declaring his allegiance to the group’s leader. Survivors of the massacre also said that he told 911 operators he was doing it because the U.S. was “bombing my country.” By this, he meant Afghanistan. Although the killer was an American citizen, born in the U.S. to Afghan parents, he apparently did not view the U.S. as his country. Instead, reflecting the views of his Taliban supporting father, he apparently saw Afghanistan as his true homeland.  Also among the many reported comments of the killer, one seems to explain his choice of victims. In the moments before he shot over 100 patrons of a gay bar in Florida, killing 49, he wrote on Facebook “The real muslims [sic] will never accept the filthy ways of the west…”

Although there was initial speculation that the killer himself was gay, even reportedly having previously visited the club and flirted with its patrons, the FBI has become “increasingly skeptical“ of those reports. It’s still early in the investigation, of course, but it seems likely that Mateen’s visits to the bar were so he could case the place in preparation for his attack. He also seems to have chosen an American gay bar as his target as a way of making a statement against the decadence (as he saw it) of the west.

In the immediate wake of the attack, the worst terrorist attack on U.S. soil since 9/11, surpassing the number of fatalities of the San Bernardino, Chattanooga, Fort Hood, and Boston Marathon attacks (among others) many people demanded answers for its cause. Indeed, as someone who sometimes comments on terrorism and related issues for local media, my day got busy quickly, as I received a call from a CNN producer inviting me to appear on one of their shows to discuss the attack (I never did as I discovered the message and returned the call too late) and I was invited to write an essay (due the same day) for The College Fix on the topic.

As the hours, and then days, unfolded after the attack, there was quite a bit of finger pointing in terms of blame. Christians, oddly, were blamed for the attack, as were America’s gun laws, and the broader cultural problem of homophobia. Of course, the issue of Islamic extremism was front and center among the causes being offered, particularly as we became more and more aware of the killer’s history of support for and connections to extremist causes and the reasons he himself gave for his actions. Yet this attack had a unique twist in that the killer deliberately targeted a gay bar. This in turn led to many online discussions of Muslim views of homosexuality.

My Facebook feed, for example, was filled with comments either blaming Muslim views of homosexuality for contributing to the killer’s hatred or posts defending Islamic teachings from any association with the killer’s actions that often instead highlighted historic anti-gay attitudes among Christians. Among the more widely circulated pieces, the New Republic published an essay titled “Orlando has Exposed Islam’s Hugh Homophobia Problem,” which led to considerable debates and discussions. A number of essays were quick to point out that a number of Muslim countries have the death penalty for homosexuality and dozens more have various other legal punishments for it, which is true.

Although I am also no expert on Islamic views of homosexuality, I do know a thoughtful young Dutch theologian of Islam named Arnold Yasin Mol whose knowledge of Islamic law is obviously quite useful for understanding a subject like this. I first met Arnold through his contributions to a three volume encyclopedia that I co-edited (w/ Florin Curta) dealing with pivotal events in religious history. Arnold, who had been highly recommended to me by another professor, wrote a powerful essay for us highlighting the many efforts of major Muslim religious leaders and organizations to denounce the Islamic State in various formal declarations, in contrast to the claim that Muslims had “remained silent” on the issue. They have not, as Arnold demonstrates well in his forthcoming essay.

Since then, Arnold and I have kept in touch through Facebook, where we follow each other’s postings and comments on various issues. As a result, although he and I may disagree on issues at times, I have come to respect Arnold’s passionate study of Islam and view him as a responsible scholar. Facebook can give us unique glimpses into another’s life at times, and in the case of Arnold, for example, he often posts pictures of the latest batch of books he has acquired, which are usually impressive looking thick hardback volumes, written in Arabic, dealing with weighty issues of Islamic law or Quranic exegesis, which he enthusiastically refers to as “his babies.” How can a dusty book loving medieval historian like myself not appreciate such an attitude?

Above Image: A picture from a Facebook post by Arnold from June 20, 2016. He noted: “Got new babies. Tafsir al-Maraghi is still a very under appreciated work. Risalat al-Hamidiya is a masterpiece of Kalam which needs translating. And the other two works (the small tafsir work by the 15th century Hanbali al-Sarsari, and a modern Madghal) I will use in my upcoming classes on Qur’anic sciences.”

Arnold’s bibliophile tendencies aside, he studies some very serious and important topics. He currently studies Islamic theology/studies at Leiden University with a focus on human rights discourse in classical and modern Islamic thought and he previously studied Catholic theology at Utrecht University. He also teaches Islamic studies and theology at the Dutch Fahm Institute, where his courses (among others) include: Islamic theology, Sunni counter-responses against extremism, Islam and Science, Islam and Modernity (Human Rights, Democracy), and Islam and World Religions. In addition, he also teaches the course ‘Islam in Europe’ at the Belgian Islamic Education Center and has published a number of essays on topics related to human rights or extremism in academic journals or edited volumes as well as popular publications. See all his publications and writings here.

 

Above Image: Arnold teaching a course on Islam and human rights at Leiden University.

When the issue of Islamic views of homosexuality erupted as a major topic on Facebook in the wake of the Orlando attack, Arnold and I engaged in a discussion of the topic of punishment for homosexuality in a thread. At one point, I asked him the following:

“Arnold, as a theologian, what is your take on all of this. Do you think Islamic law permits the execution of gays? I assume not, but then why do you think so many other Muslims interpret it as permissible according to Islamic law?”

In response, he provided an answer highlighting, in a digestible way, the variety of opinion within the Muslim world on the matter, particularly among the various schools of Islamic law. He also briefly considered how various schools are predominant in certain countries and that can help explain why one country punishes homosexuality in a serious way when others do not. In response, I asked if he might allow me to quote some of his lengthy replies on the Facebook thread for a blog post and after further consideration we agreed it might be more illuminating if he provided brief responses to some questions here instead.

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1. Arnold, before we get started on the questions regarding views of homosexuality in Islamic law, I want to ask a bit about your background. I know you are a convert to Islam. I also know all conversion stories are complex, but would you be willing to share some brief insights on why you converted? What drew you to Islam?

Conversions are complex, as much for the people surrounding the convert, as it is for the convert himself. I had a liberal Catholic upbringing and in my adolescence I started to read about other religions. I studied biochemistry at that time and a fellow Muslim student, with whom I discussed much on philosophy and religion, asked me if I minded if he gave me his translation of the Qur’an. He was fascinated with the idea to see how a person with my background would respond to such a text. This was in 2002, the general discourse in The Netherlands was focused on the war on terror, but did not conflate Islam and terrorism as it does today. I started to read the translation and I became fascinated by it, it drew me in a way the Bhagavad Gita or the Bible did not, while at the same time being familiar because of the Biblical themes and subjects. So after three months of reading the text, without any knowledge of the history of Islam, I felt so mesmerized by it I wanted to belong to the followers of the Qur’an. I told my Muslim friend, and he was a bit shocked, he didn’t know either what to do. How do you convert? Eventually I was taken to the local Muslim community in my city of Leiden with whom I took the testimony of faith (the Shahada) and guided me as much as they could. But there was hardly any literature on Islam available in Dutch, and English literature wasn’t easily accessible. So I was mainly left in the hands of the local lay community, with their assumptions about Islam.

The majority of Muslims were low-class workers from Morocco and Turkey who lived a deeply religious cultural Islam without the sophistications of Islamic law and theology. A sophistication I deeply needed after the first year of ‘convert fever’ dissipated. A conversion to a lived historical religion means one not only learns to belong to that religion, but also the communities adhering to that faith. So I had learned the rituals, customs and general attitudes of Sunni Islam, but also the customs and taboos of the Moroccan and Turkish families guiding me. There are thus multiple layers of conversion involved which tug at and reshape the convert’s identity and why it takes a while for a convert to slowly determine his own positions towards the new faith.

The conservative lay Islam of the Dutch Muslim community eventually didn’t satisfy any more so I sought other interpretations of Islam on the internet. Which led me to modernistic groups in the US who followed a more rational and liberal interpretation. I joined online study groups and forums where we discussed every linguistic and hermeneutical detail of the Qur’an, and compared this to the main positions in classical Sunni Islam. Issues as corporal punishments, gender inequality, warfare, and other modern liberal concerns. I became more interested in formal training in religion, and started an academic study in religious sciences, and after that a degree Catholic theology. Both studies helped me to better understand my upbringing and Western society, and how I could relate this to Islam. During this time I became friends with several known Muslim academics such as Aisha Musa (Assistant Professor Islamic Studies, Colgate University), Amina Wadud (Professor of Islamic Studies, Virginia Commonwealth University), and Nasr Abu Zayd (Professor of Islamic Studies, Leiden University). It was Nasr Abu Zayd who turned me to the academic study of classical Islam, by making me promise to study Islamic studies at Leiden. After almost ten years of autodidactic study of Islam, it was at Leiden University where I fell in love with classical Islamic theology (ilm al-Kalam) and exegesis (tafsir). 

As a person trained in both the exact sciences and the humanities, I’m attracted to a highly rational and naturalistic construction of theology. In my Catholic studies it was Thomism that was closest to my mindset, and in Islam it was Mu’tazilism/Maturidism, which are the main theological schools of the Hanafi school of law. The theological Natural Law approach to ethics and religion, and the Aristotelian cosmology, combined into a highly sophisticated rational approach to the Qur’an and Islam. All those years I had remained a firm believer in the Qur’an as revelation, but had many struggles with mainstream Islam as an authentic expression of the Qur’anic text. The rational theologians (called the Ahl al-Kalam), philosophers, and legal scholars (especially of the Hanafi school), finally made me feel at home in the 1400 years of Islamic community and tradition.

2. What is Islamic law? What are the major Sunni schools? What about the Shia schools?

Islamic law can be divided in four main subjects: 1) ritual law, which was the main focus of Muslim scholars; 2) ethical law; 3) family law (inheritance, marriage); 4) societal law (crime, war, politics).

When people think about Shari’a law, they focus on the fourth subject while for classical Islam it was the part with the fewest religious sources and where the political ruler had a lot of secular freedom. Shari’a books have huge chapters on the rules surrounding prayer or inheritance, but small chapters on punishments for crime or on war ethics. The majority of Shari’a texts even lack those chapters as they are of no concern for the majority of Muslims. Penal law was for judges, war was for rulers. But everyone had to pray, and almost everyone had to deal with inheritance and marriage contracts. Shari’a was therefore mostly constructed both on priority and on societal need. Shari’a texts also have a highly rabbinical nature by discussing multiple views on one subjects in detail. Shari’a texts do not state a law, they collect and discuss the multiple hermeneutical outcomes of the central Islamic source texts. This is also why it is difficult to use the modern concept of law for the Shari’a. Shari’a (lit. path to running water) is also a collective term for both the revelatory (Qur’an and Sunna) and communal (public reason, analogy and consensus) sources, and the accumulated interpretations coming out of those sources. The interpretative tradition is called Fiqh (lit. comprehension), and it is the dominant positions in Fiqh which is practiced among Muslims. Classical Islam was very much aware that Islam was applied through a human lens, that the divine revelatory sources were made active through human hermeneutics and used terminology that framed their interpretations as “probabilities” of what the text meant.” .[1]

From the beginning of Islam there emerged several factions, the three main ones being Sunni, Shi’a and Khawariji (who still exist today as the Ibadi sect in Oman). The Sunni faction was and is still the dominant group with at least 80% of all Muslims following a Sunni school. Within Sunnism schools formed out of the teachings of founding scholars, counting into the dozens, out of which four schools became dominant early on: Hanafi, Maliki, Shafi’i, and Hanbali. The central theme of Sunnism is that there can be specialists in Islam, but not an elite who carry authority purely based on being descendants of the Prophet Muhammad as it is within Shi’ism. For the Shi’a, it was the descendants of the Prophet, called imams of the Ahl al-Bait, who continued the prophetic authority of their forefather. These imams did not bring a new revelation after the Qur’an, but their statements and teachings were treated as infallible. The Sunni construction of Islam is therefore more flexible and more community based, i.e. bottom-up constructed. Shi’ism has more source texts to take into account, which limits flexibility, but also created a scholarly elite, i.e. top-down constructed.”

3. What is the largest and most influential of the schools? Could you provide some sense of where (what countries or region) each school is most dominant? Is it possible to provide a statistical breakdown (or educated guess) of what percentage of Muslims adhere to each school?

The most adhered and widespread school is the Hanafi, which is the oldest school and has always been preferred by the majority of Islamic empires as they produced the most judges. There are several charts and maps available which show the spread of the different schools:

4. What school of Islamic law to you subscribe to? Why?

I eventually fell in love with the Hanafi school due to their Natural Law approach in their legal philosophy. They viewed reason and revelation as equivalent and complementary to each other, which provides maximum flexibility in interpretation. But also one of the main consequences of Natural Law is the way it views the human: as reason is universal and the total of creation is a source of ethics and beneficence, it means every human has a natural dignity and capability to use that reason and pursue that beneficence.[2] Therefore the Hanafi school viewed every human as essentially inviolable and endowed with rights, as stated beautifully by the 11^th century Hanafi scholar al-Sarakhsi:

‘As Allah the Exalted created humanity to carry His trusts, He dignified them with reason and sacred inviolability in order to be responsible for the duties and rights of Allah placed over them. Then He granted them sanctity, freedom, and property rights for them to continue carrying out their trusts. Hence, this freedom, sanctity, and right of property are granted to a person at the time they are born. Those capable of discernment and those who are not are equal in this regard, so likewise sacred inviolability is established at birth whether they are of sound mind or not.’

This humanistic statement is repeated in the majority of Hanafi legal texts, and directly determined their views on slavery, non-Muslim minorities (dhimmi) and war. Although they condoned slavery, they termed it as an ‘inheritance of the times of unbelief (athar al-kufr)’ and saw the life of a slave as equal to a free person in the case of murder by, for example, their owner. The same accounts for non-Muslim minorities and their lives and property being equally protected by law.  The same was applied to non-combatants as stated by al-Sarakhsi:

‘The fundamental rule is that each human is inviolable, and is only allowed to be killed if a person participates in war. When the war ends through a treaty, the person’s life becomes inviolable again.’[3]

Although the other Sunni schools never adopted a full Natural Law approach, they still were deeply influenced by the Hanafi. It is this Natural Law approach which also provides the main ground for reformist thought in Islam.[4] Natural Law discourse provides a basis for universal ethics, and therefore also for acceptance of modern human rights.

5. How have the various schools historically treated the topic of homosexual behavior? I assume all of them condemn it as a sin on some level, but vary in the degree to which they are concerned with it and how they understand its cause. Is this correct?

They all viewed homosexual acts as unnatural. They differed on the concept of homosexual nature as they accepted that attraction can be directed towards both sexes, and also that masculinity and femininity differ in degrees in each person. From an Islamic ethical point of view, homosexual practices were deemed as sinful, just as sex out-of-wedlock was. As a marriage contract between equal sexes was deemed impossible, every form of homosexual sexual act was out of wedlock and therefore sinful.

But not every act was criminal. Only public sexual penetrative acts, witnessed by at least four reliable witnesses, could be brought before a judge. Female homosexual acts were therefore already deemed as only sinful and not criminal. Classical Islam constructed a long list of requirements for witnesses to be viewed as reliable, thereby safeguarding against false or biased testimony as much as possible. When it came to private behaviour, this was viewed as being outside the jurisdiction of the court system. Even so much so, that suspected homosexuals living together could not be evicted by their landlords, as this would violate their rights purely based on suspicion. The different discussions on how the schools viewed homosexuality has to do with their different views on human ontology (what is natural), and the scope of jurisdiction of Islamic law.[5]

6. I understand, from our recent discussion online as well as some additional reading, that of the four major Sunni schools of law, that three of them have justified the death penalty for homosexual acts (even if they have not always acted consistently on those rulings). The Hanafi school, however, which is the largest and most influential of all the schools, has rejected the death penalty. Why has the Hanafi school come to a different conclusion than the other schools?

The Qur’an is technically silent about homosexual acts, apart from providing a  narrative on Lot and Sodom. There are sayings (Hadith) from the Prophet Muhammad on how to deal with homosexual violators, but the Hanafi deemed these traditions as unreliable. The other schools, Sunni, Shi’a, and Ibadi, compare homosexual sex to heterosexual adultery, for which the Qur’an stipulates 100 stripes and some prophetic traditions also stoning.

The Hanafi reject this analogy because adultery for them directly involves the possibility of bastard children. So they viewed homosexual public sexual violations as criminal, but as there are no revelatory texts prescribing any punishment, therefore the punishments were based on reason which could not go beyond 39 stripes (as anything harsher would make it equal to the prescribed corporal punishments in the Qur’an), and the preferred punishment was jail.[6] But all judges from all the schools, following the classical principles based on the Qur’an and prophetic traditions, tried to avoid maximum punishments as much as possible.[7] The Ottomans for example, who kept meticulous court records, hardly mention any person being punished for homosexual acts.

The numbers of punishments given in Iran and Saudi-Arabia for homosexuality are historically speaking a modern phenomenon. Also the classical judicial system for which Shari’a texts were written doesn’t exist anymore, so it difficult to speak of an application of the Shari’a in a classical sense. Modern Muslim countries for the majority have a mix of codified Shari’a law with codified Western laws (mainly British or French), whereby penal laws are based on Western (pre-1960) laws, and the Shari’a is only used for family law (inheritance, marriage).[8]

7. So then, to conclude, Muslim views of homosexuality, as demonstrated in the four major schools of Sunni jurisprudence, are uniform in seeing it as sinful or “unnatural,” but not in how it is to be dealt with, if at all, legally or historically. Is this correct? There are a significant number of modern Muslims that seem to support extreme punishments for homosexuality as up to ten modern Muslim majority countries have used the death penalty for homosexual activity. So I do not want to downplay this, but you seem to be pointing out that, historically and legally, many Muslim rulers and thinkers have shown either indifference or even humanistic approaches in how they have dealt with the issue, as many do today, right? After all, while up to ten modern Muslim majority countries may allow for the death penalty for homosexuals, there are forty other modern Muslim majority countries that do not (although some do have other forms of punishment). Thus, it seems your main point is that “Islam” is not uniform on the issue due to the diversity of opinions both historically and legally and it is inaccurate to speak of “Islam” or “Muslims” as if they had uniform views on the issue. Is this a fair summary?

Yes, classical Islam was more liberal by creating distinct lines between private and public, and devised heavy requirements for witnesses to be deemed reliable.[9] Today’s formulation of Islamic law is in a codified form which takes away the liberty judges had in deciding or waving away a punishment. Normally the Shari’a provided multiple opinions as a scope of maximum and minimum punishments in which a judge could move. Thus the codification and the judicial process both go against the classical Shari’a requirements. But this has been ignored by both Muslims and non-Muslims who have reduced the Shari’a to the harsh corporal punishments themselves. Why homosexuality has become so central in many Muslim-majority countries in the last 50 years is largely due to the urbanization of the agrarian population and the influence of their taboos on the ruling elite, and the influence of neo-orthodox discourse (Salafi/Wahhabi Islamism) which tries to provide a counterculture to Western hegemony.

And also whatever the opinions were in classical Islam, they would have never allowed non-judicial individuals or groups to implement Islamic law outside the court of law. Shari’a was from the very first beginning seen as a rule of law, not a rule of individual Muslims or groups. This is also why judges were chosen by the political ruler, whereby an expert of Islamic law was placed in a secular position by a secular ruler. Terrorism, termed as irhab (lit. rebel warfare), was always outlawed, especially for any resident living in a state with a rule of law, be it Muslim or non-Muslim. And the killing of non-combatants was forbidden to the utmost degree by all schools, even by classical scholars as the 13th century Ibn Taymiyyah who is deemed as the main inspiration for modern Salafi-Jihadism. The killer of Orlando did not apply Islamic law in any form, he was a terrorist and would have been also executed by a classical Muslim ruler.

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*All footnotes have been provided by Arnold.

[1] For a discussion on this, see: http://www.scholarofthehouse.org/whatisshariah.html

[2] Examples are provided here: https://www.academia.edu/10939863/Rational_ethics_and_Natural_Law_in_classical_Islam_Examples_from_the_Hanafi_school

[3] For more examples, see Recep Senturk, http://www.degruyter.com/dg/viewarticle.fullcontentlink:pdfeventlink/$002fj$002fmwjhr.2005.2.1$002fmwjhr.2005.2.1.1030$002fmwjhr.2005.2.1.1030.pdf?format=INT&t:ac=j$002fmwjhr.2005.2.1$002fmwjhr.2005.2.1.1030$002fmwjhr.2005.2.1.1030.xml

[4] As I discussed in my article: “The denial of supernatural sorcery in classical and modern Sunni tafsir of surah al-Falaq: A reflection on underlying constructions”, https://www.academia.edu/3621193/The_denial_of_supernatural_sorcery_in_classical_and_modern_Sunni_tafsir_of_surah_al-Falaq_A_reflection_on_underlying_constructions

[5] See: http://almadinainstitute.org/blog/the-shariah-homosexuality-safeguarding-each-others-rights-in-a-pluralist-so/

[6] See Shaykh Atabek Shukurov, one of the leading Hanafi scholars today: https://shaykhatabekshukurov.com/2016/06/14/islamic-law-homosexuality-and-the-pulse-massacre/

[7] See: http://www.booksandideas.net/The-Art-of-Not-Punishing.html

[8] For an overview, I highly recommend this work: https://openaccess.leidenuniv.nl/bitstream/handle/1887/21170/file221087.pdf?sequence=1

[9] Even al-Azhar states that: “Corporal punishments have not been implemented in countries like Egypt for over one thousand years. This is because the legal conditions for their implementation, which describe specific means for establishing [guilt] and stipulate the possibility of retracting a confession, are not met. All of this is summed up by the saying of the Prophet, “Prevent [the implementation of] corporal punishments by means of uncertainties,”1 and, “To err by pardoning is better than to err by punishing.”. http://eng.dar-alifta.org/foreign/ViewArticle.aspx?ID=109&text=hudud