The husband should go to his wife once every four nights. This is fairest, because the [maximum permissible] number of wives is four. One is therefore allowed to extend the interval up to this limit. It is best that the husband should increase or decrease the amount of intercourse in accordance with his wife’s need to guard her virtue, since the preservation of her virtue is a duty of the husband. If the woman’s claim on intercourse has not been fixed, this is because of the difficulty of making and satisfying such a claim.
Al-Ghazali, Book on the Etiquette of Marriage1
After the first time, intercourse is his right, not her right.
Radd al-Muhtar, early nineteenth-century Hanafi legal text2
Muslims have practiced Islam in an enormous range of geographic, historical, and social contexts, and Muslim scholars differ, sometimes significantly, on crucial points of doctrine. Despite this diversity, virtually all agree that marriage obligates the husband to pay his wife a dower, that a Muslim husband bears the sole burden of providing for his wife and household, and that Muslim women may only marry Muslim men. Yet even Muslims who assiduously affirm these regulations do not always follow them. The gap between expressed doctrine and practice is perhaps largest in Western nations, especially the United States, my focus in this chapter. Although there are no hard figures available for American Muslim practices, anecdotal and other evidence suggests that dower continues to figure in most marriages of Muslims despite its unenforceability as a matter of civil law and the fact that it often remains unpaid. The majority of American Muslim women contribute materially to their own support and that of their households, as many have done historically and do elsewhere, the accepted gendered allocation of marital rights and responsibilities notwithstanding. And, although “the prohibition to give Muslim women in matrimony to unbelievers ... is one of the strictest and least disputed prohibitions in Muslim law of personal status,”3 the marriage of Muslim women to non-Muslim men occurs in the U.S. with some regularity, though not nearly as frequently as the marriage of Muslim men to non-Muslim women.4
With no coercive central authority or national legislative body dictating what is required for marriage between Muslims, American Muslims have adapted Islamic marriage regulations to fit prevailing legal, social, and cultural norms. These norms are not uniform even within the subset of the world’s Muslims who live in the United States. African-American Muslims constitute the largest single ethnic group of Muslims, followed by Asian, Arab, and African immigrants and their descendants. These larger groups are supplemented by significantly smaller numbers of white and Latina/o converts. Most are Sunnis; some are Shi‘a. Marriage practices and ideals vary between and within these communities, but all must confront the relationship between civil law and religious obligation. Choices about which religio-legal precepts to observe and which should be allowed to slip into disuse are not always logical or consistent, and may have unanticipated results for individual Muslims or their communities.
This chapter considers dower, the regulations governing spousal support and sexual availability, and the prohibition of intermarriage between Muslim women and non-Muslim men. I suggest that the arguments used by Muslim thinkers, and often adopted by ordinary Muslims, to justify continued adherence to certain classical rules are incompatible with other commonly held ideas about marriage. Further, none of these regulations takes into account the vastly different context in which American Muslims live and marry. I do not attempt to construct legal arguments in opposition to standard views, but rather to critique the way in which the views are reproduced and defended. Ultimately, I suggest that reconsideration of dower, spousal support, and intermarriage provides one possible way of thinking about a new structure for egalitarian marriage that bypasses the patriarchal presumptions of these rules and avoids becoming mired in the minutiae of incremental legal reform.
Property transfer on marriage has been a common practice throughout human history, though with dramatic variation in who pays, how much they pay, and who receives the cash or goods exchanged. Sometimes gifts are reciprocal; at other times, the transfer is unidirectional, either dowry paid to the husband by the bride’s family or bride price paid to the wife’s family by the husband and/or his family. Marriage and dower practices in pre-Islamic Arabia have been the subject of significant speculation and little consensus.6 Most agree that in pre-Islamic Arabia, mahr was compensation paid to a bride’s family in exchange for considering her offspring part of the husband’s tribe rather than that of her father and brothers. The Muslim dower (mahr or sadaq), paid to the wife rather than her family, is usually regarded as a modification of this practice.7 (Numerous authors cite this shift as proof of Islam’s liberatory stance toward women.8) There is some evidence suggesting that the mahr and the sadaq, terms used interchangeably by classical jurists, were originally distinct forms of compensation, with the latter going to the wife herself. On this view, dower payment to the bride would not be an Islamic innovation but rather an instance of the way that “Islam selectively sanctioned” certain Arabian tribal practices “while prohibiting others.”9 In any case, Islamic rules definitively allocated the money to the bride, although under certain circumstances fathers were allowed to receive it and spend it for a daughter’s trousseau. Among Muslims, dower has frequently been an important part of property arrangements.10 How significant it was or is in practice has depended on the wealth of the parties; whether the dower is in cash, in kind, or in immovable property; and whether it is paid up front, deferred to death or divorce, or split between prompt and deferred. When the deferred portion of the dower is set at a sufficient amount, it may also compensate women for some of the risk inherent in marriage when men have or have had unrestricted rights to divorce with no long-term liability for alimony; under most circumstances, a wife is only entitled to three menstrual cycles worth of lodging and maintenance after divorce.11
Much modern Muslim discourse, from neotraditionalists and feminists alike, praises dower as a source of economic security for women and a token of a husband’s willingness and ability to provide. This rhetoric is pervasive even in the United States, where most Muslims marry according to civil law. Dower persists in the vast majority of American Muslim marriages; though it is often only a symbolic amount, it differentiates Muslim marriage from that of the surrounding American society. In the United States, it is simple to set a dower amount at marriage, because religious authorities are frequently certified to perform marriages recognized by American law. However, following through on enforcement of dower obligations in the wake of divorce is much less common, in part because these same religious figures have no role in civil divorce. Other reasons include the nominal amount of dower often allocated to the bride, the informality of verbal or written dower agreements that do not meet standards for enforceable contracts, and the fact that U.S. courts have proven ambivalent in their treatment of dower obligations.12 The practical impact of these factors belies the rhetoric about dower’s importance as a safety net for women, and as an instance of the generous rights Islam “guarantees” women.
Not only are most discourses on dower irrelevant to Muslim practice in the U.S., they are also detached from the logic governing dower in Islamic jurisprudence, where dower constitutes compensation paid by the husband for exclusive legitimate sexual access to his wife. (Al-Shafi‘i, among others, graphically refers to dower as “the vulva’s price,” thaman al-bud‘a.13) Dower has a very specific purpose and is linked inextricably to other rules, such as male-initiated divorce, that are incompatible with the forms of civil marriage and divorce utilized by the majority of American Muslims. The Qur’an refers in general terms to a man’s financial obligations toward his wife.14 The hadith texts discuss a range of dower possibilities from symbolic (an iron ring) to minimal (a quarter dinar or three dirhams) to ideal (the dower paid by the Prophet to his wives or that received by his daughters) to maximum (none fixed). For the most part, these texts are silent on rationales, although the Qur’an does refer to the ajr (reward, compensation) paid by a man for “what he enjoys from her.”15 In the developed logic of the jurists, however, dower came to be understood as compensation in exchange for milk al-nikah, the husband’s exclusive dominion over the wife’s sexual and reproductive capacity, which also conveys his sole right to dissolve the marriage tie by unilateral divorce.
The linkage of divorce with dower may seem odd, but the husband, in the jurists’ logic, is paying for a type of control. It is this control that makes sex lawful. The wife may not dissolve the marriage without a judge’s approval unless specific conditions to the contrary, escape clauses of a sort, were included in the contract.16 Given that the full dower becomes obligatory after consummation, and could represent a significant sum of money, it makes a certain kind of sense that only the husband would be able to release the wife from the marriage. Otherwise, a woman could simply marry, consummate the marriage (or rather, allow it to be consummated), and then divorce her husband while claiming the full dower amount to which she was entitled. This linkage between dower and divorce rights illustrates the interconnectedness of each element of classical legal tradition, and its attempt to achieve conceptual consistency; any attempt to modify the rules surrounding divorce but not those governing dower, as some advocates for women’s rights have proposed, would alter the marital dynamic significantly.
Dower is not alone among the financial obligations associated with marriage that have been given new rationales by modern Muslim authors. Contemporary Muslim thought generally links male provision of nafaqa, or support, with a wife’s household service: the husband/father earns a living and a wife/mother stays home and keeps the house and raises the children.17 Yet this provider-homemaker division of labor does not reflect the actual experience of most Muslim families, where women contribute to their own support and/or that of their households and children, nor does it resonate with classical texts. Those texts, while sometimes suggesting that women have a religious obligation to manage the household, generally stress that the husband maintains his wife in exchange not for household services but for her sexual availability to him.
Current conventional wisdom among Muslims and non-Muslims alike holds that Islam is a religion with a positive view of human sexuality.18 Medieval Christian polemics against Islam viewed its sensualism as barbaric in comparison to the purity of Christianity, but many modern commentators see Islam’s world-affirming perspective as more realistic than the supposedly ascetic and world-denying stance of Christianity.19 The comparison relies on an oversimplified view of Christianity, but the claims with regard to Islam have a basis in Muslim tradition. Key Islamic texts present marriage, and sex within it, as a natural and desirable part of human life. The Prophet Muhammad reportedly objected to religious celibacy (“No monkery in Islam”)20 and specifically claimed marriage as part of his sunnah, or authoritative practice. Premodern biographical treatments of his life celebrate his virility as part of his sound human nature.
Both classical and contemporary authors likewise recognize women’s sexual needs and appetites, but with different emphases.21 Classical texts note the importance of female fulfillment, but usually focus on the discord-producing effects of female dissatisfaction (the potential for social fitna) while stressing the wives’ duty to remain sexually available to their husbands. Contemporary authors, often quoting selectively from this corpus, pay less attention to these themes.22 Instead, they focus on women’s sexual rights within marriage, attempting to prove the importance of female pleasure by highlighting the dissociation of sex from reproduction and the importance of female orgasm.
Significant texts in the Qur’an and hadith allude to the importance of female gratification and satisfaction in the sexual act. These sources, drawn on by al-Ghazali in his frequently-cited writings, stress men’s responsibility for making their wives’ experiences pleasurable.23 Al-Ghazali frames his discussion of the sexual act in terms of a husband’s responsibility for keeping his wife satisifed; it is a matter of the husband’s duty, rather than the wife’s right.24 This duty has social, as well as intimate, dimensions: a man is obligated to keep his wife satisfied in part to keep her from wreaking social havoc. Given women’s generally slower trajectory of arousal and orgasm, both foreplay and prolonged stimulation are required, the former to ensure readiness for penetration, the latter to ensure attainment of climax. Foreplay, in his view, is the subject of the Qur’anic command “do some good act for your souls beforehand.”25 He also cites a statement attributed to the Prophet, counseling men not to fall upon their wives like beasts, but rather to send “a messenger” prior to the sexual act. When questioned, Muhammad is said to have clarified that this “messenger” was kisses and caresses.
Al-Ghazali insists that it is the husband’s responsibility, having aroused his wife sufficiently for penetration, to see to it that she also reaches orgasm. It is likely that she will only climax after “the husband has attained his desired end;” nonetheless, “mutual estrangement” may occur “whenever the husband is too quick to ejaculate; simultaneity in the moment of orgasm is more delightful to her.” This is part of his rationale for foreplay; if the wife is sufficiently close to orgasm before penetration, mutual climax is more likely. Al-Ghazali insists that the wife’s dissatisfaction can damage the intimate relationship between the couple. Again, the husband is charged with ensuring this does not occur: “The husband should not be preoccupied with his own satisfaction, because the woman will often be shy.”26
Al-Ghazali’s explicit discussion of female orgasm highlights one of the drawbacks of coitus interruptus (‘azl), the method of birth control best known to early Muslims: a man must withdraw prior to his ejaculation to prevent conception, but “coitus interruptus may diminish her pleasure.” As Sa’diyya Shaikh points out, a wife is “entitled to full sexual pleasure” and has “the right to offspring if she so desires.” Shaikh views this doctrine as evidence of “the priority given in Islam to mutual sexual fulfillment as well as consultative decision making between a married couple in terms of family planning.”27 Sex for non-procreative purposes was clearly permissible: with very few exceptions, Muslim authorities accepted contraceptive measures and approved of sex with pregnant women and nursing mothers, making clear that sexual pleasure was a worthwhile aim even where pregnancy was an impossible, unlikely, or undesirable outcome of intercourse. Shaikh is thus largely correct in her broad claim that “Within the Islamic view of marriage, an individual has the right to sexual pleasure within marriage, which is independent of one’s choice to have children.”28 Yet the mention of an ungendered “individual” who has this right ignores the context within which classical thinkers discuss marital sex. Although Hanbalis, Malikis, and Hanafis viewed the wife’s permission for withdrawal as necessary, most Shafi‘is disagreed, and the reasons behind their disagreement are instructive.29 According to one rationale, since a wife didn’t have the right to demand intercourse at any given time (a point on which the jurists largely agreed across the legal schools), her husband could prevent her from conceiving or attaining sexual pleasure by abstaining from intercourse with her entirely. Given that she therefore had no independent right to orgasm or to conception, her consent regarding withdrawal was irrelevant. This doctrine, a minority view, complicates the simple view of an “Islamic right” to female sexual pleasure.
Muslim acknowledgement of the positive aspects of female sexuality has historically coexisted with two views that challenge it in different ways. First, certain elements of the classical Muslim tradition treat female sexuality as dangerous, with potentially disruptive and chaotic effects on society.30 Historians have demonstrated how anxieties about temptation and female sexuality translated into insistence (never fully achieved in reality) on restricting the appearance of women in public spaces.31 Muslim worry over fitna – chaos and disorder – has often focused on the sexual temptation caused both by women’s unregulated desires and the troublesome desire that women provoke in men. Second, and in a paradoxical relationship to this view of women as sexually insatiable and thus prone to create social chaos, Muslim authorities have stressed the importance of the fulfillment of male sexual needs, especially in the context of marriage. Drawing particularly on several hadith delineating dire consequences for women who refuse their husbands’ sexual overtures, the insistence on men’s sexual needs and wives’ responsibility to fulfill them has competed for prominence in modern intra-Muslim discourses on sex with the recognition of female sexual needs.
Despite the scholars’ acknowledgement of the importance of female satisfaction in the sexual act, the overwhelming weight of the Muslim legal and exegetical tradition is on women’s obligations to make themselves sexually available to their husbands, rather than the reverse. This bias in the sources emerges even in contemporary discussions that attempt to discuss male and female sexual rights in parallel, highlighting the immensity of the task for those who would redefine sex within marriage as a fully mutual endeavor. A fatwa by conservative Saudi mufti Ibn Jibreen32 exemplifies the extent to which concepts of reciprocity and mutuality permeate even conservative Muslim discourses. At the same time, his strongly gendered understanding of male and female sexuality is broadly representative of much contemporary Muslim discourse, including that produced in Western contexts.
Ibn Jibreen’s fatwa, entitled “The Ruling on Either of the Two Spouses Denying the Other Their Lawful Rights,” responds to the query, “Is it permissible for either of the two spouses to deny the natural rights of the other for a long period of time, without any acceptable excuse?”33 The mufti’s response exemplifies the tension between moral exhortations surrounding wives’ sexual rights in marriage, and the legal logic governing sex as part of the structure of gender-differentiated marital claims beginning with dower and carried through to divorce. Though the questioner posed the problem of “either of the two spouses [denying] the natural rights of the other” as a gender-neutral one, sex in marriage is not a gender-neutral question. Ibn Jibreen opens by accepting his questioner’s premise of parity, declaring that “sexual relations” are among the “needs” of both husband and wife, but proceeds very quickly to discuss men and women in parallel, and then to differentiate them. Eschewing the view that women’s desires are unmanageable, he opines that men generally have “a stronger desire” for sex than women. The rest of the fatwa considers men’s sexual claims in marriage, then women’s sexual claims in marriage, lastly returning to universal statements about sex in marriage.
The limited and contingent sexual rights of a wife stand in contrast to the unrestricted right of a husband to sex “whenever he desires it.” With the caveat that a man may not harm her or prevent her from performing any of her religious duties, Ibn Jibreen declares that a wife has “an obligation ... to allow her husband to have sexual intercourse with her whenever he desires it.” (Note the passivity here: she is to “allow” him “to have sexual intercourse with her,” rather than actively having sex with him.) Ibn Jibreen accurately categorizes this as the dominant, virtually unanimous, view of the Muslim jurisprudential tradition. Like al-Ghazali, who supports the wifely obligation to be available to her husband in a passage less often quoted by modern Muslim authors,34 Ibn Jibreen recognizes that a wife also “has rights to have her intimate needs fulfilled.” However, a husband is not obligated to satisfy her “whenever” she “desires it;” rather the husband must “have sexual intercourse with his wife (at least) once in each third of the year, if he is able to do so.”35
A number of hadith that make assertions about wives’ sexual obligations serve as proof for this husbandly right; although Ibn Jibreen does not cite them in this fatwa, they appear in other opinions issued by the Saudi fatwa council with which he is affiliated, as well as the writings of other thinkers. Abu Huraira is the authority for five closely related narrations in the two Sahihs of Muslim and Bukhari. Muslim reports three statements by the Prophet associating the husband’s displeasure with divine displeasure in a chapter entitled “It is not permissible for a woman to abandon the bed of her husband:”
When a woman spends the night away from the bed of her husband, the angels curse her until morning.36
By Him in Whose Hand is my life, when a man calls his wife to his bed, and she does not respond, the One Who is in the heaven is displeased with her until he (her husband) is pleased with her.
When a man invites his wife to his bed and she does not come, and he (the husband) spends the night being angry with her, the angels curse her until morning.37
Bukhari’s two traditions attribute similar words to the Prophet:
If a man invites his wife to sleep with him and she refuses to come to him, then the angels send their curses on her till morning.
If a woman spends the night deserting her husband’s bed (does not sleep with him), then the angels send their curses on her till she comes back (to her husband).38
Details in these Prophetic hadith vary. In three of the five, the husband invites his wife to bed; the other two do not mention an invitation, only that she remains away. In all but one version, the angels curse the woman till morning or until she returns to her husband’s bed; in the last, God is directly “displeased until [her husband] is pleased with her.” These variations do not affect the central point, which is that women’s sexual duties to their husbands are a matter of divine concern and divine approval is contingent on a husband’s approval.
Aside from the abstract, if horrific, prospect of being cursed by angels or subject to divine displeasure, a wife’s sexual refusal had practical consequences in the legal tradition. Most jurists viewed the husband’s support of his wife as an exchange for her sexual availability to him, and agreed that her sexual refusal constituted grounds for suspension of her support.39 The dominant Hanafi view differed in a crucial way; a man had to continue to support his wife even if she refused him, so long as she remained in the marital home.40 As an Indian author argues in 1987, in euphemistic language, in case of the wife’s refusal of sex, “It is taken that she shall be in his power and [he] can be intimate with her by applying some pressure.”41 The early jurists would have considered marital rape an oxymoron; rape (ightisab, “usurpation”) was a property crime that by definition could not be committed by the husband, who obtained a legitimate (but non-transferable) proprietary interest over his wife’s sexual capacity through the marriage contract, incurring the obligation to pay dower in exchange. The Hanafi view that husbands were entitled to have sex forcibly with their wives when the latter did not have a legitimate reason to refuse sex was not widely shared outside that school. Even the majority of Hanafi thinkers who accepted this doctrine recognized a distinction between forced intercourse and more usual sexual relations between spouses; although both were equally licit, sex by force might be unethical.42
Unlike the clear penalties that a wife could face if she did not fulfill her husband’s demand for sexual access, a sexually dissatisfied wife had few avenues for redress, despite a man’s obligation to keep his wife satisfied. Those sources that do exist, beyond those cited above as encouraging foreplay, do not receive nearly as much attention as the Abu Huraira hadiths cursing recalcitrant wives. In one case, Muhammad is reported to have told a man who boasted of fasting every day and praying at night that he should follow the Prophet’s own example, and moderate his devotions so that he could partake of normal human activities: food, sleep, and sex. Interestingly, the terms used liken the wife in that case to almost an extension of her husband’s body: “Your body has a right over you, your eyes have a right over you and your wife has a right over you.”43 This hadith is important because it moves beyond the question of women’s satisfaction in a particular act, discussed by al-Ghazali and others, to the larger question of wives’ rights to sex itself.
What was the extent of the wife’s sexual claim on her husband? With the exception of the literalist Zahiris, all legal schools adopted the view that a marriage could be dissolved for impotence – that is, the husband’s failure to consummate the marriage. In the absence of any passage from the Qur’an or statement from the Prophet on the topic, the jurists based themselves on a ruling from the second caliph ‘Umar. The choice by some (such as Abu Hanifa and his disciple Muhammad al-Shaybani) to follow this ruling while ignoring ‘Umar’s precedent in other cases demonstrates an exercise of jurisprudential discretion.44 The near unanimity on the point suggests that there is, indeed, a strong strand of thought believing that sex is a vital element of marriage. Nonetheless, despite the wife’s right to press a claim of impotence in an unconsummated marriage, the vast majority of jurists went on to declare that she has no such right once the marriage has been consummated. One opinion quoted in the late Hanafi text Radd al-Muhtar presents this sentiment particularly bluntly: “After the first time, intercourse is his right, not her right.” At best, as in Ibn Jibreen’s fatwa, she might be able to insist on intercourse once every four months, assuming her husband was capable of it.45
Sex is, by and large, a male right and female duty, according to fiqh texts, whatever the ethical importance of a husband’s satisfying his wife and thus enabling her to keep chaste. The repeated, though ultimately unenforceable, assertions of some scholars as to a wife’s sexual rights – or, more particularly, the husband’s obligations – demonstrate an unresolvable tension. The modern attempt to render the spouses’ sexual rights parallel without departing from the overall framework of gender-differentiated rights and duties set forth by classical jurists is destined for failure; the model cannot accommodate piecemeal modifications. The legal tradition fundamentally views marriage as an exchange of lawful sexual access for dower, and continued sexual availability for support. To the extent that these doctrines still inform Muslim discourses, mutuality in sexual rights cannot be a requirement, merely an ideal.
As with regulations surrounding dower and sex, the issue of marriage of Muslims to “people of the Book” – ahl al-kitab, generally understood as Christians and Jews – demonstrates both the mutability and the limitations of existing jurisprudential approaches to intimate relationships. The Qur’an explicitly grants permission in Surah 5, verse 5 for Muslim men to marry virtuous women (muhsanat)46 from among those who have received scriptures in the past. Surah 2, verse 221 prohibits marriage between Muslim men and women to those who associate partners with God (mushrikun/mushrikat). Surah 60, verse 10 prohibits sending female converts who have come to the Muslims back to their unbelieving husbands, who are declared to be inappropriate spouses for them. The vast majority of Muslim scholars have understood these verses, taken collectively, to forbid the marriage of Muslim women to non-Muslim men, whether “of the Book” or not, and to require the dissolution of any marriage to a non-Muslim husband when a wife converts to Islam.47
Their interpretations presupposed two kinds of hierarchies: Muslims were to be dominant over non-Muslims and husbands over wives. As wives were to be subordinate to their husbands, the marriage of a non-Muslim man to a Muslim woman would challenge this authority structure: “A marriage of a Muslim woman to a non-Muslim man would result in an unacceptable incongruity between the superiority which the wife should enjoy by virtue of being Muslim, and her unavoidable wifely subjection to her infidel husband.”48 The same rationale governed, although to a lesser extent, other legal discussions about socio-economic parity between spouses, particularly important in the Hanafi understanding of kafa’a, measuring the suitability of the groom according to whether he was the bride’s equal or better in lineage, wealth, and religious status.49 The reverse was not true: twelfth-century Hanafi scholar al-Marghinani’s statement that “[I]t is not necessary that the wife be the equal of the husband, since men are not degraded by cohabitation with women who are their inferiors” was meant to apply with regard to suitability but applied equally to intermarriage.50 Though some prominent early Muslims did object to intermarriage with Christians in particular on theological grounds, the notion of a Muslim husband’s authority over a non-Muslim wife posed no conceptual problems.
As exegetes and jurists grappled with the issue of intermarriage, they took for granted the absolute necessity of both Muslim political authority and male familial authority. Classical exegetes explicitly grappled with the Qur’anic verses mentioning intermarriage, and tried to sort out the relevant categories (Muslims, believers, people of the Book, Jews, Christians, non-believers, mushrikun). Jurists, more pragmatically inclined, attended to issues of permissibility and conditions for interreligious marriages. For the most part, scholars simply assumed that Muslim women couldn’t marry non-Muslim men and did not consider it necessary to elaborate on their evidence and rationales. Ibn Rushd does not discuss Muslim women marrying non-Muslims in his Distinguished Jurist’s Primer which, because it treats matters on which jurists disagree, is often a repository for minority opinions.51 More tellingly, neither Ahmad b. Naqib al-Misri nor his nineteenth-century commentator ‘Umar Barakat deemed it necessary to state that Muslim women could not marry non-Muslim men in the classic Shafi‘i manual Reliance of the Traveller; however, a late twentieth-century transmitter of the text adds it as a clarification for the English translation; literally, what once went without saying no longer does.52
The scholar quoted in the Reliance states the prohibition without presenting a justification for it, but numerous others have addressed the point. The increasing frequency with which (civil) marriages between Muslim women and non-Muslim men are occurring, or where women who convert to Islam independently remain married to non-Muslim husbands, has led to impassioned, but deeply flawed, arguments by Muslim thinkers intent on upholding the standard prohibition of such marriages, though in quite different terms from those provided by early and medieval thinkers, when they addressed the matter at all.53 The rationales presented, however, are often nonsensical, as well as simplistic in their discussions of intermarriage by Muslim men. The premodern tradition demonstrates a level of complexity in discussions of intermarriage that does not carry over into contemporary discussions, suggesting the relevance of context as a factor in determining the (im)permissibility of particular types of marriages. At the same time, a reconsideration of the relevant Qur’anic passages in isolation from their traditional interpretation suggests that the text is less categorical than generally assumed; sunnah may also provide a model of flexibility.
Even leaving aside the dominant Shi‘i view that men may not contract nikah with non-Muslims of any type, early Sunni discussions of intermarriage between Muslim men and Jewish or Christian women are more complex than the view, often expressed today, that while women are forbidden from intermarrying, Muslim men may marry Christian or Jewish women. Marriage of Muslim men to non-Muslim women was not as straightforward as simple permissibility. First, authorities debated who should be included in the definition of “people of the Book.” Ibn ‘Umar’s blanket disapproval of marriage to a Christian (for who is more an idolator who says that God is one of three?) is a well-known minority view, but Christian and Jewish women were agreed by Sunni scholars to be acceptable, if not ideal, as marriage partners. Instead, the debate tended to center around the categories of the Sabeans (Abu Hanifa permitted marriage to Sabean women, though his disciples did not) and Zoroastrians (not lawful, according to the Hanafis, but the inclusion of this disclaimer makes clear that some did hold it permissible).54 More importantly, quite a number of thinkers held that circumstances mattered in assessing the permissibility of marriage between Muslim men and kitabi women. It was one thing to marry a kitabiyya within the safe haven of Muslim-ruled Dar al-Islam, but quite another to do it in Dar al-Harb when the possibility of the children being brought up as non-Muslims was more of a threat (assuming the husband divorced the woman and returned to his native land, which some scholars considered a strong probability). According to the view presented in the Hanafi text Fatawa-I-Kazee Khan, such a marriage was “valid” but “abominable” (makruh).55
The early jurists also devoted substantial discussion to the conversion of one spouse to Islam.56 When a Christian or Jewish husband converted, he was allowed to remain married to his wife of the same faith; his conversion resulted in a permissible marriage between a Muslim man and a kitabiyya. On the other hand, if the wife converted while her husband retained their original religion, there was general (although not universal) agreement that their marriage could not continue, a position that has been generally upheld by scholars until the present day. However, two recent opinions by Western Muslim authorities have declared that a woman who converts to Islam is not necessarily required to divorce her kitabi husband. Although the positions taken in these fatwas suggests a serious challenge to the dominant view of intermarriage, an exploration of their reasoning shows that neither upsets conventional wisdom as much as might be expected.
The first fatwa, by Taha Jabir Alalwani, appears on the website of the mainstream and influential Islamic Society of North America.57 He argues:
A questioner asks, “Is it forbidden (haram) for a Muslim woman to be married to a non Muslim, and what should one do?” The standard answer based on the Qur’an is that it is forbidden for a Muslim woman to be married to a non-Muslim so she should be divorced immediately. However in this particular case the circumstances are as follows: The woman has just converted to Islam and she has a husband and two young kids. The husband is very supportive, but is not at this time interested in converting. The woman was told immediately after converting that she had to divorce her husband of 20 years. Within these circumstances the question should have been: Is it worse for a Muslim woman to be married to a non-Muslim husband or for her to leave the religion? The answer is that leaving the religion is much worse, so therefore it is acceptable for her to continue with her marriage and she is responsible before Allah on Judgment Day.
Alalwani situates his response to a “questioner” asking about “a Muslim woman [being] married to a non Muslim” within a consideration of the larger issue of whether questions have been properly formulated to lead to appropriate results. The question posed was whether the situation was “forbidden” and what would be the appropriate action to take in case of such marriage. After discussing the woman’s personal circumstances, Alalwani reframes the issue as a choice between the convert remaining married to a non-Muslim or leaving Islam. In asserting that the way a question is formulated affects what answer can be given, Alalwani recognizes a key facet of all intellectual endeavor, Islamic jurisprudence not excluded. However, he does not acknowledge the extent to which his own statement of what “the question should have been” predetermines its outcome: there can be no consequence worse than leaving Islam, so any alternative, even violating the prohibition on marriage between a Muslim woman and a non-Muslim man, seems reasonable.
Rather than undertaking a serious reconsideration of interreligious marriage by Muslim women, Alalwani provides a dispensation (rukhsa) which lightens a normal restriction to respond to an extraordinary circumstance. Indeed, he provides a truly extraordinary example: a woman married twenty years would be far more reluctant to leave her husband than one married only a few years. Further, a woman with young children would be especially hesitant to separate from their father. The fact that both these elements are present suggests contrivance: how many women married for two decades still have “two young kids”? Though the situation he describes is biologically possible, it is far more likely that a woman married for such a long time would have teenaged offspring. By depicting a situation where one is very sympathetic to the woman involved, Alalwani increases the likelihood that readers will concur with his deliberations. But does this fatwa have relevance beyond the individual case at stake?
Although the logic of this fatwa is internally sound, its methodological premise is too superficial to be sustained or applied more broadly, as it allows for almost any manipulation of the question to result in the desired answer. Would he accept the same rationale if it were not a convert’s marriage at stake but rather an unmarried Muslim woman in love with, and wanting to marry, a non-Muslim, and in danger of leaving Islam if she could not do so? What if it were two Muslim women wanting to marry each other, now permissible under civil law in certain parts of North America and Europe? Presumably, Alalwani would approach these situations differently, but this fatwa does not provide any methodological justification for doing so.
Alalwani does not suggest a broader differentiation between permitting a convert to Islam to remain married to her kitabi husband (where her apostasy from Islam was not feared) and cases where an unmarried Muslim woman wanted to marry a Christian or Jewish man. There is some textual support for this distinction; anecdotal evidence suggests that the first generation of Muslims viewed the preservation of an existing marriage somewhat differently than the case where no marriage yet existed.58 The second fatwa, from the European Council for Fatwa (an all-male organization that includes North America-based Jamal Badawi among its members), does make this distinction, “affirm[ing] and repeat[ing] that it is forbidden for a Muslim female to establish marriage to a non-Muslim male” while permitting a convert to maintain her marriage under certain circumstances.59 The fatwa acknowledges that “According to the four main schools of jurisprudence, it is forbidden for the wife to remain with her husband or indeed to allow him conjugal rights, once her period of waiting has expired.” The Council bases its dissenting view on “some scholars” (those named are Ibrahim al-Nakha’i, al-Shi’bi, and Hammad ibn Abi Sulayman) who held that “it is for her to remain with him, allowing him and enjoying full conjugal rights, if he does not prevent her from exercising her religion and she has hope in him reverting [i.e., converting] to Islam.” The Council’s rationale (“for women not to reject entering into Islam if they realize that they are to separate from their husbands and desert their families by doing so”) is similar to Alalwani’s objective to prevent the convert’s apostasy, although the situation of one who never becomes Muslim is less dire than that of one who becomes Muslim only to abandon the faith.
Both fatwas acknowledge their departure from the near-universal view on the dissolution of a female convert’s marriage. Neither, however, reconsiders the evidence on which that doctrine is based. Alalwani states simply that “the standard answer based on the Qur’an is that it is forbidden for a Muslim woman to be married to a non-Muslim.”60 However, his intimation that the Qur’an explicitly forbids such marriages is misleading. The Qur’an does not address the situation of women’s marriage to “non-Muslims” in general but rather discusses specific categories of potential spouses such as “those who associate partners with God” (mushrikin) and “unbelievers.” Although both fatwas refer to a woman’s freedom to practice her new religion, neither discusses the relation of the cases at issue to the Qur’anic verse disapproving of Muslim women remaining married to unbelievers (kuffar). A woman’s conversion separately from her “very supportive” husband suggests her freedom of conscience and action. In contrast to the cases considered by these muftis, the Qur’anic verse explicitly treats the situation of women who had converted and left their husbands. The situation of female converts to Islam who had come as refugees from a community engaged in conflict with the Muslims is, in several respects, quite different from that of women who desire to remain with their husbands, not to mention those living in a society in which Muslims and non-Muslims co-exist peacefully. The muftis could have chosen to argue that this Qur’anic ruling is context-specific and therefore does not apply in the dramatically altered scenario of a Christian or Jewish woman who converts to Islam in the United States today.
If one holds that Surah 60, verse 10 does not apply to the situation of converts in the West today, then the remaining Qur’anic evidence against women’s marriage to non-Muslims is twofold: the prohibition in Surah 2, verse 221 on marrying women off to those who associate partners with God, and the silence surrounding women’s marriage to kitabis in Surah 5, verse 5. The prohibition of marriage to mushrikin in the former explicitly applies to both Muslim men and Muslim women. It cannot, therefore, be applicable to all “non-Muslims,” as many exegetes, both classical and contemporary, have assumed in the case of women.61 Rather, it is accepted to stand in non-contradiction to the permission for Muslim men to marry women from “those who have received the book before you” in the latter verse. To view the same command prohibiting marriage to mushrikin as applying more broadly to women than to men requires a significant interpretive leap, moving far beyond the verse itself. The prohibition of marrying women off to mushrikin in Surah 2, verse 221 does not by itself foreclose the possibility of permission for women to marry kitabis. And although Surah 5, verse 5 does not explicitly grant permission for such marriages, there are numerous other instances in the Qur’an where commands addressed to men regarding women are taken to apply, mutatis mutandis, to women.62
If the Qur’an does not directly address the marriage of Muslim women to kitabi men, and if the presumptions about male supremacy and dominance in the home no longer hold, such that a female convert living in a majority non-Muslim nation is assured freedom to practice Islam in her home unencumbered (or to obtain a civil divorce independently if she is not), what rationale exists for continuing to prohibit marriage between Muslim women and kitabi men in the first place? My aim is not to construct a legal argument for the permissibility of such marriages but rather to highlight the weaknesses in most arguments against them, particularly their reliance on unspoken but fundamental assumptions about male dominance in marriage. These assumptions are no longer widely shared, or at least no longer broadly acceptable as justifications for the prohibition of intermarriage. At the same time, greater attention to the discussions surrounding men’s marriage to kitabiyyas in both hadith and jurisprudence suggests the relevance of taking context into account in both permission for and prohibition of intermarriage. There are cogent arguments to be made for considering the permission to marry non-Muslims on the basis of factors other than gender.
Discussions of marriage among scholars, pundits, and ordinary Muslims consist of a curious and continuously shifting mix of specific classical doctrines, isolated citations from Qur’an and hadith, and modern assumptions. Among Muslims in the United States, as in most Muslim-majority societies, classical models for marriage no longer hold sway in numerous respects. Rules that allowed for fathers to contract binding marriages for their minor children of either sex no longer persist. Apologetic discourses stress wives’ sexual rights while downplaying the importance of wifely obedience. In fundamental respects, in social practice at least, the understanding of Islamic marriage has shifted. Yet there has not been a coherent alternative to the classical understanding of marriage as a fundamentally gender-differentiated institution which presumes, at least at some level, male authority and control.
Dower, which holds a central place in the legal structure of marriage and in the social practice of some Muslim communities often takes on a merely symbolic form among American Muslims. Adhering to the symbolism comes at a price, however. If dower is meant to be an economic safety net for women, then a more useful approach would depend on factors other than consummation, such as length of marriage, contribution to the household economy, wages lost and earning potential diminished during childbearing and caretaking, and so forth. Feminist assertions that women do not have any Islamic obligation to perform domestic services or childcare may have the ironic effect of devaluing those contributions. Although stress on the voluntary nature of women’s performance of domestic duties can highlight their significance, this recognition that dower does not compensate for a wife’s household contribution is not usually accompanied by a discussion of precisely for what it is that dower compensates a woman.
Discussions about dower, spousal rights, and intermarriage must occur in the context of a broader consideration of what men and women contribute to marriage and to the family, including the recognition that most American Muslims do not maintain the separate asset regime assumed by classical law and that complete male economic responsibility is more theoretical than actual. Perhaps one positive outcome of the neo-traditional vision of the wife providing homemaking and childrearing services in exchange for male providership could be the dissociation of sex from support; if sex is no longer the wife’s marital duty, then it could become a fully mutual right. This does not resolve the problem of how to deal with the double-shift that emerges when women work outside the home to provide partial support for the household without the husband taking over a portion of the household duties, but it might be more reasonable to see those duties as less explicitly gendered than the others. If some Muslims want to adopt a provider/homemaker division of labor that provides some kind of economic independence for women, that ought to be negotiable. But the pretense that such a structure, and only such a structure, is religiously legitimate avoids the reality that many Muslims organize their lives differently, as well as the real incompatibility of classical definitions of male and female obligations with most contemporary understandings of spousal roles in marriage.