The crime of homosexuality is seen as a criminal act, a major sin and an abhorrent deed. It is something Allah punished nations who practiced it differently from any other crime nations committed. It is something that violates the basic nature of man as created by God which is to procreate.
The agreed upon answer by Muslim scholars throughout Islamic history is that such acts are sinful and prohibited by God - the evidence usually cited is the example of the people of the prophet Lut(as). If they are undertaken in public and witnessed, then the individuals involved can be prosecuted and punished.
One should understand the wisdom/benefit/mercy behind the penalties. The Hudud are expiation to the sinner and mercy to the rest of the Umma (when carried out according to proper Islamic understanding, court system, etc.). The sinners remain our brothers and deserve our mercy and affection.
The evidences used comprise the following:
"And Loot (Lot), when he said to his people: 'Do you commit the worst sin such as none preceding you has committed in the aalameen? Verily, you practise your lusts on men instead of women. No, but you are a people transgressing beyond bounds.' And the answer of his people was only that they said: 'Drive them out of your town, these are indeed men who want to be pure (from sins)!' Then We saved him and his family, except his wife; she was of those who remained behind (in the torment). And We rained down on them a rain (of stones). Then see what the end of the criminals was." [al-A'raaf 7:80-84]
"Verily, by your life (O Muhammed), in their wild intoxication, they were wandering blindly. So as torment overtook them at the time of sunrise. And We turned (the towns of Sodom in Palestine) upside down and rained down on them stones of baked clay. Surely, in this are signs for those who see (or understand or learn the lessons from the Signs of Allah. And verily, they (the cities) were right on the highroad (from Makkah to Syria, i.e. the place where the Dead Sea is now)" [al-Hijr 15:72-76]
Ibn Abbas (ra) said: The Messenger of Allah (saw) said: "Whoever you find doing the action of the people of Lut, execute the one who does it and the one to whom it is done." Tirmidhi (1456), Abu Dawud (4462) and Ibn Maajah (2561).
Ibn Abbaas (ra) said the Prophet (saw) said: "May Allah curse the one who does the action of the people of Lut, may Allah curse the one who does the action of the people of Lut," three times. al-Musnad Ahmad (2915)
The Prophet (saw) stated, "Whenever a male mounts another male the throne of God trembles; the angels look on in loathing and say, Lord, why do you not command the earth to punish them and the heavens to rain stones upon them?"
The Prophet (saw) stated, "Indeed, my community will suff er punishment if men go with men and women with women."
The Sahaba were unanimously agreed on the execution of homosexuals, but they differed as to how they were to be executed. Some of them were of the view that they should be burned with fire, which was the view of 'Ali (may Allah be pleased with him) and also of Abu Bakr (may Allah be pleased with him), as we shall see below. And some of them thought that they should be thrown down from a high place then have stones thrown at them. This was the view of Ibn 'Abbaas (may Allah be pleased with him). Some of them thought that they should be stoned to death, which was narrated from both 'Ali and Ibn 'Abbaas (may Allah be pleased with them).
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Some argue Islamic law does not prohibit same-sex acts, homosexuality etc., despite the consensus of scholarly opinion to the contrary.
As far as same-sex acts are concerned, the legal precedent and historical record shows complete unanimity on the part of Muslim jurists - not a single dissenting opinion can be found permitting same-sex acts in nearly a millennium and a half. The primary reason for this goes back to the many clear and unambiguous statements of the Qur'an and hadith themselves that categorically prohibit all forms of sexual activity between members of the same sex, as well as the clarity of the Sunna of the Prophet, that of his companions and the early community in this regard. Obviously, if one believes the weight of juristic consensus, combined with the unambiguous pronouncements of divine revelation and Sunnaic precedent, to be irrelevant in determining what God requires of us today, then it is hardly surprising (or interesting) that such a person would have divergent opinions on Islamic law vis-à-vis those who do put weight on that consensus, formed on the basis of those texts and those normative precedents.
The fuqaha differed on the punishments concerning the matter. Some of them said that the homosexual should be executed no matter what his situation, whether he is married or not. Some of them said that he should be punished in the same way as an adulterer, so he should be stoned if he is married and flogged if he is not married. Some of them said that a severe punishment should be carried out on him, as the judge sees fit.
Ibn al-Qayyim (ra) discussed this issue at length and he mentioned the evidence and arguments of the fuqaha, but he supported the first view. This is explained in his book al-Jawaab al-Kaafi' li man sa'ala 'an al-Da'Wa' al-Shafii, which he wrote to deal with this immoral action:
Because the evil consequences of homosexuality are among the worst of evil consequences, so its punishment is one of the most severe of punishments in this world and in the Hereafter.
The scholars differed as to whether it is to be punished more severely than zina, or whether the punishment for zina should be more severe, or whether the punishments should be the same. There are three points of view:
- Abu Bakr al-Siddeeq, Ali ibn Abi Taalib, Khaalid ibn al-Walid, Abd Allah ibn al-Zubayr, Abd Allah ibn Abbaas, Malik, Ishaq ibn Raahawayh, Imam Ahmad according to the more sound of the two reports from him and al-Shafii according to one of his opinions, were of the view that the punishment for homosexuality should be more severe than the punishment for zina and the punishment is execution in all cases, whether the person is married or not.
- Al-Shaafa'i, according to the well-known view of his madhhab and Imam Ahmad according to the other report narrated from him, were of the view that the punishment for the homosexual should be the same as the punishment for the adulterer.
- Imam Abu Hanifa was of the view that the punishment for the homosexual should be less severe than the punishment for the adulterer and it is a punishment to be determined by the judge (ta'zeer).
Those who favoured the first view comprise the majority. They said:
Allah did not test anyone with this major sin before the people of Lut and He punished them with a punishment that He did not send upon any other nation; He combined all kinds of punishment for them, such as destruction, turning their houses upside down, causing them to be swallowed up by the earth, sending stones down upon them from the sky, taking away their sight, punishing them and making their punishment ongoing and wreaking vengeance upon them such as was not wrought upon any other nation. That was because of the greatness of the evil consequences of this crime which the earth can hardly bear if it is committed upon it and the angels flee to the farthest reaches of heaven and earth if they witness it, lest the punishment be sent upon those who do it and they be stricken along with them. The earth cries out to its Lord, may He be blessed and exalted and the mountains almost shift from their places.
Killing the one to whom it is done is better for him than committing this act with him, because if a man commits sodomy with another man, in effect he kills him in such a way that there is no hope of life after that, unlike murder where the victim is wronged and is a martyr. They said:
the evidence for that (i.e., that the evil consequences of homosexuality are worse than those of murder) is the fact that in the case of murder, Allah gives the next of kin the choice: if he wishes he may have him executed and if he wishes he may let him off, but He enjoined executing the homosexual as a hadd punishment, as the companions of the Messenger of Allah were unanimously agreed and as is clearly indicated by the Sunna of the Messenger of Allah (pbuh) and there is no evidence to the contrary; rather this is what his companions and the Rightly-Guided Caliphs (ra) did.
It is narrated from Khaalid ibn al-Walid that he found a man among one of the Arab tribes with whom men would have intercourse as with a woman. He wrote to Abu Bakr al-Siddeeq (ra) and Abu Bakr al-Siddeeq consulted the Sahaba (ra). Ali ibn Abi Taalib had the strongest opinion of all of them and he said:
"No one did that but one of the nations and you know what Allah did to them. I think that he should be burned with fire." So Abu Bakr wrote to Khaalid and he had him burned.
'Abd Allah ibn 'Abbaas said:
The highest point in the town should be found and the homosexual should be thrown headfirst from it, then stones should be thrown at him.
Ibn 'Abbaas derived this hadd punishment from the punishment that Allah sent upon the homosexuals of the people of Lut. Ibn 'Abbaas is the one who narrated from the Prophet (saw) the words: "Whoever you find doing the action of the people of Lut, execute the one who does it and the one to whom it is done." This was narrated by the authors of al-Sunan and was classed as saheeh by Ibn Hibbaan and others. Imam Ahmad quoted this hadith as evidence and its isnad meets the conditions of Bukhari.
Ibn Taymiyah (ra) said: With regard to homosexuality, some of the scholars said that the hadd punishment for it is the same as the hadd punishment for zina and it was said that it is less than that. But the correct view on which the Sahaba were unanimously agreed is that both are to be killed, the active and the passive partners, whether they are married or not. The authors of al-Sunan narrated from Ibn 'Abbaas (ra) that the Prophet (peace and blessings of Allah be upon him) said: "Whoever you find doing the action of the people of Lut, execute the one who does it and the one to whom it is done." And Abu Dawood narrated from Ibn 'Abbaas concerning the unmarried person who commits a homosexual act that he said: He is to be stoned. And something similar was narrated from Ali ibn Abi Taalib (ra). The Sahaba did not differ concerning the ruling that the homosexual is to be executed, but they differed concerning the methods. It was narrated from Abu Bakr al-Siddeeq (ra) that he is to be burned and from others that he is to be executed.
It was narrated from some of them that he should be taken up to the highest place in the town and thrown down from it, to be followed with stones, as Allah did to the people of Lut This was narrated from Ibn 'Abbaas. According to the other report, he is to be stoned. This was the view of the majority of the salaf. They said: because Allah stoned the people of Lut and stoning is prescribed for the zaani by analogy with the stoning of the homosexual. Both are to be stoned, whether they are free or slaves, or one of them is the slave of the other, if they have reached the age of puberty. If one of them has not reached the age of puberty, he is to be punished but not stoned and none is to be stoned except one who has reached puberty (al-Siyaasah al-Shar'iyyah, p. 138).
Secondly:
The one to whom it is done is like the one who does it, because they both took part in the sin. So both are to be punished by execution, as it says in the hadith. But two exceptions may be made to that:
1 - One who is forced into sodomy by means of beating, death threats and the like. He is not subject to any hadd punishment.
It says in Sharh Muntaha al-Iraadaat (3/348): "There is no hadd punishment if the one who has been sodomized is forced into it, such as if the one who did it overpowered him or threatened him with death or beating and the like."
2 - If the one to whom it was done is a minor and has not reached the age of puberty. There is no hadd punishment in this case, but he should be disciplined and punished in a way that will deter him from committing this crime, as stated above in the quotation from ibn Taymiyah.
Ibn Qudamah (ra) narrated in al-Mughni (9/62) that there is no difference of opinion among the scholars concerning the fact that the hadd punishment should not be carried out on one who is insane or a boy who has not yet reached the age of puberty.
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