Scholars Debate Punishments For Homosexuality Giving Textual Citations
First of all, it should be clear that the man committed two heinous crimes: homosexuality, and murder. Each crime is sufficient to warrant death penalty. In addition, this man has severed ties of kinship by seducing and killing his nephew.
The Glorious Qur'an is explicit in deciding the Hadd (legal penalty) for the crime of murder, when saying: "O ye who believe! the law of equality is prescribed to you in cases of murder: …" (Al-Baqarah: 178) Homosexuality, moreover, is an abomination and a grave sin.
In Hadith, the Prophet, peace and blessings be upon him, clarifies the gravity of this abomination by saying: "Allah curses the one who does the actions (homosexual practices) of the people of Lut" repeating it three times; and he said in another Hadith: "If a man comes upon a man then they are both adulterers."
Here, he considered homosexuality tantamount to adultery in relation to the Shari'ah punishments because it is an abomination on the one hand and the definition of adultery applies to it on the other hand. However, a death fall [pushing someone off of a cliff] is not the sole penalty agreed upon by the Muslim Jurists as a punishment for this crime.
The punishment here is controversial due to divergence of views among `Ulama in deducting ruling as regards this case from Shari`ah sources. Focusing more on the question in point, the eminent Muslim scholar, Sheikh `Abdel Khaliq Hasan Ash-Shareef, states: “As regards this case (if genuine), this man committed two heinous crimes, which deserve severe punishment.
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He is a murderer and homosexual. Besides, he severed ties of kinship by doing such grave sins. Death penalty (Qisas) is well established by the Qur’an in more than one verse. Allah, Most High, says: “O ye who believe! the law of equality is prescribed to you in cases of murder: …” (Al-Baqarah: 178)
As to the issue of how the homosexual person is judged in an Islamic State, the Companions of Prophet Muhammad, peace and blessing be upon him differed among themselves on this issue, and this led to different views maintained by Muslim Jurists. For example, in the Hanafi school of thought, the homosexual is punished through harsh beating, and if he/she repeats the act, death penalty is to be applied. As for the Shafi`i school of thought, the homosexual receives the same punishment of adultery (if he/she is married) or fornication (if not married).
This means, that if the homosexual is married, he/she is stoned to death, while if single, he/she is whipped 100 times. Hence, the Shafi`i compares the punishment applied in the case of homosexuality with that of adultery and fornication, while the Hanafi differentiates between the two acts because in homosexuality, the anus (a place of impurity) may also be involved while in adultery (and fornication), the penis/vagina (which are reproductive parts) are involved.
Some scholars hold the opinion that the homosexual should be thrown from a high building as a punishment for his crime, but other scholars maintain that he should be imprisoned until death. Based on the above fact, we can conclude that, the judge is invested with full discretion as to whether this man is to be thrown from a high place or not, as a punishment for his crime. However, if the man survives death fall, the judge has the right to sentence him to death.”
Shedding more light on the legal penalty for homosexuality, Dr. Taha Jaber Al-`Alwani, President of the Graduate School of Islamic and Social Sciences and President of the Fiqh Council, states: "The scholars of this Ummah are in agreement - based on what has been revealed in the Qur'an and what has been authenticated in the Prophetic Tradition (Sunnah) - on prohibiting both behaviors (gayness and lesbianism) because in each of two actions there is an assault on the humanity of a person, destruction of the family and a clash with aims of the Lawgiver, one of which is the establishment of sexual instincts between males and females so as to encourage the institution of marriage."
Islam does not view sexual desire as the main aim of marriage; for marriage is a means to acquire tranquility and to actualize the love and mercy between spouses. Furthermore, it is a means for the survival of human kind and fostering a web of sound relations that aid in building sound families that constitute the smallest units for the society at large; this healthy society being the final aim of Islam.
Actually, humans are not animals controlled by their sexual instincts, answering the call of sexual desires every time it is aroused in them. Rather, it is their responsibility to know how they can orient this craving, which is a trust Allah has implemented in them, both male and female, in addition to the will and power to choose, a blessing Allah has bestowed on humans; all this is what distinguishes them from the rest of the creatures in that they orient their conduct and do what is good.
So, viewing (material) desires as aims in themselves is a deviation from one’s natural disposition and a departure from the natural order. If the trend in the West is to legalize this conduct, it should be noted that such things did not materialize until after religious values had been diluted and had been changed to relative values that glorify individuality and make pleasures as an end and aim.
In Hadith, the Prophet, peace and blessings be upon him, clarifies the gravity of this abomination by saying: "Allah curses the one who does the actions of the people of Lut" repeating it three times; and he said in another Hadith: "If a man comes upon a man then they are both adulterers." Here, he considered homosexuality tantamount to adultery in relation to the Shari'ah punishments because it is an abomination on the one hand and the definition of adultery applies to it on the other hand.
It has also been narrated from the Companions (may Allah be pleased with them) that this crime deserves severe punishment more than that of adultery to insure its deterrence and restraint. Verily, the punishment here is the burning of both homosexuals (the actor and acted upon) or stoning them with rocks till death because Allah Most High stoned the people of Lut after demolishing their village.
As for lesbians, the Prophet, peace and blessings be upon him, said about them: "If a woman comes upon a woman, they are both Adulteresses". The scholars mentioned that it is incumbent on the authority to enact a reprimand on lesbians that is fitting to the crime committed.
It is true that some of the scholars disagreed with these punishments not because of doubt that these actions constitute a crime, but because of a lack of divine textual stipulation for a worldly punishment. But the actions of the Prophet’s Companions do indicate that in fact this crime has a worldly punishment, to be carried out by those in authority among the Muslims.
The story of Abu Bakr Al-Siddiq when Khalid Ibn Al-Waleed wrote to him on this matter is famous and can be referenced in many sources. [The story referred to above goes as follows: "In his book Fat-h al-Qadir, the famous Hanafi scholar, Ibn al-Humam states "Al-Bayhaqi reported in his book Shu`ab al-Iman on the authority of Abu ad-Dunya that Abd al-`Aziz ibn Abi Hazim related from Dawud ibn Bakr who related from Muhammad ibn al-Mukadir the following:
"Khalid Ibn al-Walid wrote to Abu Bakr [seeking the legal ruling] concerning a man with whom another man had sexual intercourse. Thereupon, Abu Bakr gathered the Companions of the Prophet, peace and blessings be upon him, and sought their opinion. `Ali, may Allah be pleased with him, was the strictest of all, saying, 'Only one nation disobeyed Allah by committing such sin and you know how Allah dealt with them. I see that we should burn the man with fire.' The Companions unanimously agreed on this." This incident is also mentioned by al-Waqidi under the subject of apostasy at the end of the section on the apostasy of Bani Salim.]"