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Homosexualy from Shia Jurist’s Point of View

Some may argue that from a historical point of view, homosexual marriage was recognized in many societies and regions around the world, but with the expansion of Abrahamic religions, especially Islam, acceptance of homosexual behaviors based on teachings such as Qur’anic verses and hadiths dwindled and the homosexual marriage was out of question until the twentieth century.

Some may argue that from a historical point of view, homosexual marriage was recognized in many societies and regions around the world, but with the expansion of Abrahamic religions, especially Islam, acceptance of homosexual behaviors based on teachings such as Qur’anic verses (Naml: Verse 58) and hadiths (Like the one quoted from Imam Reza (AS), “Know that the vile and sinfulness of sodomy exceeds that of adultery, since Almighty God eradicated a tribe (the people of Lot) for sodomy, but none has beenperished for adultery.” (Majlisi, Mohammad Baqer, Baharalanavar, vol. 76, p. 71) dwindled and the homosexual marriage was out of question until the twentieth century.

The dissemination and growth of social freedoms in the West in this century led to the re-emergence of this issue to the extent that homosexual marriages in countries such as Ireland, the Netherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden, Portugal, Iceland, Argentina, Denmark, Uruguay, New Zealand, Brazil, France, the United Kingdom and the United States have been legalized[1].

In the following, after exploring the different types of sexual orientations, we will investigate this subject from a jurisprudential perspective.

A: Sexual Orientation

According to research findings, the major sexual orientations are as follows:

  1. Heterosexuality: An individual displays sexual preference only to the opposite gender, i.e. male to female and vice versa. According to historical evidences, this kind of sexual orientation has been the healthiest and the most common orientation since the beginning of Creation[2].

  1. Transgender: It is a general title used for individuals, beliefs and groups that desire to change their cultural, social, and physical gender roles, which embraces the following types:

a.Bisexuality: The person depicts an emotional and sexual preference for both sexes, though the intensity of this preference is not necessarily equal[3].

b: LGBT[4]: This orientation is of two types: male homosexuality (Gay) and female homosexuality (lesbian). It is characterized by emotional, sensual and sexually relationships between two people of the same sex[5].

c: Asexuality: It describes a person without any sexual orientation[6].

d.Pan-Sexuality: A person engages in love affairs or display emotional tendency to people regardless of their gender or gender identity. What distinguishes it from bisexuality is that a bisexual is not affected by the opposing sex. It does not matter whether the opposite sex is male, female, transgender, bisexual, etc. In fact, a bisexual is receptive to the entire gender spectrum but is not effected by anyone.[7]

 

B: Jurisprudential Ruling on the Same-Sex Marriage

All Imamieh jurists agree on the unlawfulness of marriage to homosexuals, whether gays or lesbians, and there is no ambiguity regarding the forbiddingness of this act. For example, the fatwa of Ayatollah Sistani is as follows: “male homosexuality(gay) is forbidden as female homosexuality (lesbian) is.”[8]

 

C: Jurisprudential Rulings on Homosexual Love Affairs

In the case the sexual relationship between two homosexuals is consummated, it gives rise to a number of jurisprudential issues, some of which are discussed below.

First: Rulings on Gay Relations

A)Prohibition of marriage with the mother, sister and daughter of the person with whom the homosexual relation has been consummated.

As stipulated by jurists, a sodomizer (subject) is prohibited from marriage to the mother, sister and daughter of the sodomized (object). In this regard, it should be noted that in some cases this ruling has been issued as fatwa and in other cases as obligatory caution[9], as described in the following section.

  1. Pre-Matrimonial Sodomy

Imam Khomeini and Ayatollah Khamenei: “[marriage to] the mother, sister and daughter of a sodomizedis forbidden to the sodomizer, even if the sodomizer and sodomized are immature and the extent of penetration is less than the circumcised part of the penis.

Ayatollah Sistani: “(marriage to) the mother, sister and daughters of the sodomized is forbidden to an adult sodomizer, even if the penetration is less than the circumcised part of the penis. According to the obligatory caution, it embraces cases in which the sodomized is a manor the sodomizer is underage..”

Ayatollah Makarim Shirazi: “”(marriage to) the mother, sister and daughters of the sodomized is forbidden to an adult sodomizer, whether the sodomized is underage or adult, but if the sodomized is underage, the prohibition of marriage shall not be applicable. Obviously, with partial penetration of the penis, this prohibition is not effectuated.

Note 1: If a person is uncertain about the penetration, the marriage prohibition shall not be applicable.

Note 2: The verdict of marriage prohibition with the mother, sister and daughter of the sodomized, in accordance with fatwa and obligatory precaution, is extended to a fostered mother, sister and daughter as well.[10]

  1. Post-Matrimonial Sodomy

If the sexual relationship between two male gays(fathers, brothers or son of a woman are the sodomized and her husband is the sodomizer) is consummated after marriage, according to some jurists, prohibition in the former marriage is not effectuated; as Imam Khomeini, Ayatollah Khamenei and Ayatollah Makarim have pointed out, but according to jurists such as Ayatollah Sistani, that woman, on the basis of obligatory caution,shall be prohibited from living with her husband

Second: Annulment of Marriage Pursuant to the Sodomy

In cases where jurists have issued the fatwa that “[marriage to] the mother, sister and daughter of the sodomized shall be prohibited for the sodomizer permanently “, if the person marries the woman unaware of the decree regarding the permanent prohibition or be uncertain about the realization of sodomy, the marriage contract shall be null and void. Nonetheless, since they have been unaware of this ruling or subject, their sons, who have been conceived prior to recognition of this prohibition, shall be legitimate. The separation of this couple does not call for verbalization of divorce clause.

Third: Informing the Husband and Wife

If a man marries a woman that is permanently forbidden to him, it may or may not be required for people who are cognizant of this ruling (i.e. “the prohibition of marriage for this couple”) and the issue (i.e. “the realization of the sodomy that causes marriage prohibition”) to inform them. The possible scenarios are discussed below.

1.If uncertain about the penetration, they are not required to inform the couple.

  1. With the assumption that they are certainty about the penetration, if the couple or one of them is unaware of the subject, they are not required to inform the couple.
  2. With the assumption that they are certain about the penetration, if the couple or one of them is unaware of the religious ruling, it is necessary to remind them of the religious verdict.

 

Fourth: Other Rulings

Several secondary rulings have been raised by the Ayatollah Makarim Shirazi on this subject. Some of these verdicts have been described below.

  1. A husband’s claim about having a sexual relationship with the brother-in-law after marriage

Query: My husband claims to have engaged in a sexual relationship with my brother before our marriage, but my brother denies this assertion. What is my obligation?

Response: The husband’s claim is unacceptable and he is obliged to continue to live with you and pay your costs of living.

  1. The ruling on re-marrying a woman with her brother a homosexual relationship has been established during the engagement

Query: If a man engages in an indecent sexual relation with his brother-in-law during temporary or permanent engagement period, is he allowed to marry her wife again after termination of this period or divorce?

Response: As required by obligatory precaution, neither (permanent or temporary engagement) is not permissible.[11]

 The Rulings on Lesbians

The female homosexual relationship is different from sodomy, and the permanent marriage prohibition does not apply to the brothers of the women involved in this relationship.

One of the issues associated with lesbianism, as will be discussed in the fatwas of the jurists, is when this acts leads to the transference of sperm from a woman’s husband to another woman’s uterus. Some of relevant fatwas and rulings will be discussed below.

Imam Khomeini: “If a man engages in a sexual intercourse with his wife, and then she has sex with a female virgin that leads to her pregnancy, the child will belong to the owner the sperm and that virgin girl. After the loss of virginity, she will have the same rights as other women of her age. “

Ayatollah Sistani: “If a woman transfers her husband’s sperm through sex or other means to another woman’s uterus, and that woman gets pregnant and gives birth to a child, the child shall be that of the man who owns the sperm and woman who has delivered the child, though this act will be forbidden. “

If a person commits the sinful act of homosexuality, s/he should not lose hope in the future, as disappointment with God’s mercy is a reprehensible act, considering that Allah the Almighty has promised in the Holy Quran that he will accept repentance, and He is the most reliable in keeping promises.

The essence of repentance is remorse for committing the sin, and it has been said: “Contrition is the same as repentance, and true contrition is characterized with the decision to abandon the sin. A person who is truly repentant must compensate for the sinful acts of the past, and hence the sin of homosexuality is a violation of God’s rights, it is necessary to seek His forgiveness.

However, true repentance is not realized by mere verbalization of “May God forgive men”, but it calls for a determination to relinquish from that sin forever and try to compensate for it as much as possible. It is necessary for the sinner not to lose hope in God’s mercy, as God is the most merciful and compassionate and likes the repentant ones.

According to a Hadith, “An hour of thinking is greater than seventy years of worship.” One of the things that affect repentance is contemplation over God’s majesty and His right upon servants, and that He is omnipresent and ever-seeing. According to a hadith quoted from Amir al-Momenin, “Do not commit sins (even in secret), because that One that bears witness shall be the judge too.”

———————————————

References

[1]https://en.wikipedia.org/wiki/Same-sex_marriage.

[2]https://en.wikipedia.org/wiki/Heteronormativity.

[3] https://en.wikipedia.org/wiki/Bisexuality

[4]It stands for transgender, gay, lesbian, bisexual

[5] https://en.wikipedia.org/wiki/LGBT

[6] https://en.wikipedia.org/wiki/Asexuality

[7] https://en.wikipedia.org/wiki/Pansexuality

[8]Seyyed Ali Sistani, Jurisprudence for the Westerners, query 456; Tozi Al-Masaleh, issue 2224.

[9]Obligatorycaution: If a qualified Mujthid declares a fatwa, the followers of that mujtahid, cannot refer to other jurists for that issue, but if that mujtahidrefuses to announce a fatwa and says: “it is precautionary to do so”, or “that issuecall for reconsideration and amendment”, in all of these cases, the followers must act in accordance with this precaution, which is called the obligatory caution, or act upon the fatwa of another jurist. Marja Resale, vol.1, query 7

Marja’sResalah, vol..2, query 2405;

http://farsi.khamenei.ir/treatise-imam-content?id=532&tid=99

   . Ruhollah Khomeini, Imam Khomeini’s essay, vol. 9, p. 156 query 10432.

   . https://www.sistani.org/persian/qa/0804/

   . Marja’sResalah, vol. 2, query 2405.

   . https://makarem.ir/main.aspx?typeinfo=21&lid=0&catid=46769&mid=261374.

   . Marja’sResalah, vol..2, issue 2405; Ruhollah Khomeini, Imam Khomeini’s essay, vol. 9, p. 159. query 10432;

  https://www.sistani.org/persian/qa/0804/

  https://makarem.ir/main.aspx?typeinfo=21&lid=0&catid=46769&mid=261374

   . Marja’s Resale, vol.2, query 2481;

https://makarem.ir/main.aspx?typeinfo=21&lid=0&catid=44854&mid=255753.

   . Seyyed Ali Sistani, Resalah of Al-Masalah, query 2499.

[10] “If a person marries the mother, sister or daughter of another man and they perform an act of sodomy after marriage, they [mother, sister or daughter] will not be forbidden to him.” Marja’sResalah, vol. 2, query 2406. http://farsi.khamenei.ir/treatise-imam-content?id=532&tid=99

  . “If he marries a woman, and then performs an act of sodomy with his father, brother or son, according to the obligatory caution, that woman shall be forbidden to him.” Marja’sResalah, vol. 2, query 2406.”If the act of sodomy has been proved, they must be separated immediately” (Ruhollah Khomeini, Imam Khomeini’s Esteftaat, vol. 9, p. 156 query 10426)

  . ” If the act of sodomy has been proved… the children will be legitimate, except for children who have been conceived after learning about the prohibition.” (Ruhollah Khomeini, Imam Khomeini’s Esteftaat, p. 156, p. 156, query 10426)

  . “If the act of sodomy has been proved, you must be separated immediately, and there is no need for divorce, as you are forbidden to each other forever.” (Ruhollah Khomeini, Imam Khomeini’s Esteftaat, p. 156, query 10426)

https://makarem.ir/main.aspx?typeinfo=21&lid=0&catid=999&mid=262969.

  . https://makarem.ir/main.aspx?typeinfo=21&lid=0&catid=999&mid=262966.

[11].https: //makarem.ir/main.aspx? typeinfo = 21 & lid = 0 &catid = 999 & mid = 262967.

   . Rouhollah Khomeini, Tahrir al-Wasileh, vol. 2, Chapter 2, issue 13.

   . Sayyid Ali Hosseini Sistani, Marja’sResalah, issue 2861.

   . https://www.sistani.org/persian/qa/0864/

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