Sistani on Homosexuality
Readers have been asking me about the stance of Grand Ayatollah Ali Sistani regarding homosexuality. I take it they are inquiring about this entry at my colleagues' great Pandagon site.
Let me begin by saying that the charge leveled by some, and mentioned at Pandagon, that Sistani has called for the killing of Sunnis, is completely untrue. The implication given by exiled gay Iraqi, Ali Hili, of the London-based gay human rights group OutRage, that Sistani has called for vigilante killings of gays, is untrue, though it is accurate that Sistani advises that the state make homosexual activity a capital crime; it is also accurate to call this "sick."
In traditional Islam there was no conception of the "homosexual" as a permanent identity or social role. As in ancient Greece, the real distinction in sexuality (as Michel Foucault showed) was between the penetrator and the penetrated. Medieval and early modern Islamdom were like the Greece of Plato. Adult males were the penetrators. In premodern Muslim society, women could be penetrated if they were legally married to the man or if they were his slaves. Likewise, slave-boys (catamites) could be penetrated, although it was typically disapproved of by the Muslim clerics. Exclusive adult male-male sexual relationships are not recorded, and a taste for a slave-boy did not stop a wealthy man from being married or from having liasons with his female slaves, as well. About half the famous love-poems of the medieval Baghdad literary figure, Abu Nuwas, appear to have been addressed to boys.
As slavery was forbidden in the Ottoman Empire in the course of the mid- to late-nineteenth century, obviously the keeping of slave-boys by wealthy men ceased. As society modernized, notions of sexuality moved away from the penetrator/penetrated model similar to that of the ancient Greeks, and toward a modern male-female binary. Many Muslim societies in the course of the twentieth century also moved away from polygamy toward a model of one man, one woman as the family unit.
Modern homosexual identity has only slowly emerged in the Middle East, and has sometimes faced great hostility. I say sometimes because real-life Muslim societies are not as puritanical as outsiders or local elites imagine. It is obvious that American writer Paul Bowles liked living in Tangiers precisely because anything went as long as it stayed fairly private. In cosmopolitan Muslim cultures like Egypt, at best the modern gay subculture is winked at, but sometimes there are crackdowns. The situation resembles the US in, say, the 1930s and 1940s, when the police would arrest gays. In a radical Muslim regime like Taliban Afghanistan, gays were executed. This was in part an attempt to keep discipline in the Taliban military ranks, which were notorious for gay liaisons. So there is a spectrum. It should be underlined that Taliban Afghanistan was weird and not like most of the Muslim world.
So on to Sistani, who upholds a slightly modernized version of medieval Muslim canon law. The first two fatwas he gave on the subject have to do with adult men penetrating boys. That is, Sistani appears to take as the connotation of lawat that it is an adult man penetrating an under-age boy. Unsurprisingly, he deeply disapproves. The first two fatwas, however, come in response to questions about what this sexual relationship means for later marital relations between the two families. Say a 21-year-old man from Khazraj had relations with a 17-year-old boy from Ruba'i? Then, say the first man's family wanted to marry him off to a girl from the Ruba'i family. Can they? And to what degree of relatedness? Can he be the husband of his former lover's sister? The answer is "no." In contrast, Sistani would allow a man who had an affair with a girl to later on marry her sister. Personally, I think the gay guy is getting the better advice here; having a brother-in-law or sister-in-law who is your former lover would be awkward at family reunions. Sistani does say that if a man has an affair with a married woman, and fathers her child, and she later gets divorced, he cannot in good conscience marry her, as a punishment for the earlier sin.
The first two fatwas assume that the gay affair had been discovered and punished, but also assumes that the two men were not only at liberty but that their families were in the sort of social relationship where intermarriage was still a possibility.
A later fatwa insists that homosexual relations should be punished with the utmost severity, and urges the death penalty. Again, his assumption appears to be that the penetrated partner would likely be under-age, which may help explain his severity. His first two fatwas, however, assume that the punishment will actually be much less severe, even when one of the partners was under-age!
It should be noted that Sistani does not have or even claim the right to impose a death penalty on individuals for their activities. In contemporary Iraq, the legality of homosexuality would be determined by statute passed by parliament (or by provincial assemblies), and if it were illegal, sentencing would be carried out by civil judges. Sistani is here acting as a jurisconsult, saying what he thinks Islamic canon law requires. But Iraq is not governed, or not solely governed, by shariah or Islamic canon law.
The Iraqi constitution adopted on October 15 contains a provision that no law be passed directly contradicting the established laws of Islam, but another article says that no law may be passed that is contrary to human rights standards. Given that homosexuality has never been such a big an issue in the Middle East (and for long stretches some sort of homosociality was accepted elite practice) that its prohibition would rise to the level of an "established" Islamic law (thawabit ahkam al-Islam), one wonders if Iraqi law will really take this direction. Certainly, it would not be in accord with the other provision, concerning basic human rights.
But there isn't any doubt that Sistani does advocate making gay relations a capital crime. If Iraq took a strong turn toward implementation of religious law, which is entirely possible given that the December 15 election mainly put religious fundamentalist parties in parliament, then such severe penalties for homosexual relations could be imposed, despite the human rights language in the constitution.
I personally concemn Sistani's stance here, of course. He is a conservative Shiite cleric, however, so I don't know what people were expecting to happen if the secular Baath was overthrown and replaced by primordial ethnic identities.