TL;DR: To actually be punished for homosexuality, you’d practically have to be a sane adult having sex in the street in broad daylight.
Punishment for homosexuality in Islam is exactly the same as the punishment for heterosexual adultery. Both have such stringent regulations that it is practically impossible to carry the punishment out.
Don’t confuse what is not allowed for Muslims, with the Shariah prescriptions for what Muslim courts should do with people. Although homosexual intercourse is completely forbidden for a Muslim, that does not automatically mean there are punishments in this world. And where something should be done, it is by the Shariah court ONLY; Islam does not tolerate vigilantism.
Shariah law is almost entirely concerned with the societal effects of actions. If a sin is committed in private, it is between him/her and God, and he/she will be judged on the Day of Judgement. It is only when it starts affecting others in society that Shariah steps in. This is why, in the past, Shariah courts turned a blind eye to people who were well-known to be involved in homosexual relationships - they had no authority to step in because it was happening in private.
Turning a blind eye does NOT mean Islam accepted homosexuality. The homosexual act will be punished severely in the afterlife if God sees fit to do so. It just means that Sharia courts can’t punish them until these conditions are met
There has been discussion about homosexuality in Shariah law for centuries. Shariah lawmakers have consistently come to the following conclusions in the past:
Not a sin, not punishable by Sharia courts
- Homosexual feelings, if not acted upon, are not a sin
- “Acting gay” (eg. being effeminate) is not a sin
A sin, but not punishable by Sharia courts (or anyone else)
- When homosexual intercourse is performed, it cannot be punished if:
- there were no witnesses (or less than four witnesses)
- less than four people voluntarily testify (and don’t withdraw their testimony before the punishment)
- if any one of the conditions below are not met
- There is no basis for any discrimination against known homosexuals (eg abuse, bullying, violence, denying a job, banishing from the mosque, etc.)
Punishable by Sharia courts
- Punishment only applies when the sexual act is witnessed by the public - and in that circumstance, it follows the same rules as heterosexual adultery: If four separate people saw the actual penetration, (homosexual or (unmarried) heterosexual), and stringent conditions are met such as:
- All four witnesses are adult, known to be honest, of sound mind, were not spying, and willingly testify that they saw the penetration, and don’t retract that testimony
- All four witnesses voluntarily testify, and do not withdraw their testimony before the punishment
- The testimonies of all the witnesses are completely consistent with each other. If not, the witnesses are lashed and the perpetrators go free
- Those to be punished are adult, of sound mind (ie not mentally impaired), etc
- The intercourse was committed in a public place, not in the home of any of the perpetrators (that would disqualify the testimony of the witnesses, as they have no right to be looking into someone else’s home)
- The guilty parties have been given every benefit of the doubt (evidenced by hadiths which tell us to ward off the hudud (punishments) as much as we can, and that it is better to let many guilty people off the hook than to punish one innocent person)
- The punishment if all these conditions are met are: lashes if unmarried, and death if married.
As you can see, the death penalty for unmarried sex has so many restrictions on it that it is almost impossible to carry out. Which is why, for the first 1000 years of Islamic rule, not one person was put to death for adultery.
Differing opinions among Islamic scholars
- Jurists from one of the four schools of jurisprudence (Maliki, if I remember correctly) have ruled that the punishment for homosexual intercourse should be less than that for heterosexual intercourse, because there is no danger of pregnancy. So they recommended a discretionary punishment less severe than the lashes or death penalty (again, only if all the above conditions are met).
- During the Tanzimat reforms of the Ottoman Empire, the official state scholars (from the Hanafi school of jurisprudence) agreed to abolish the punishment for homosexual intercourse entirely. This was over a century before homosexuality became accepted in the West
- I’m not a scholar, so I have no authority to say whether banning the punishment for homosexuality was a correct ruling or not. The fact remains, however, that there have been legitimate scholars in Islamic history who have said there shouldn’t be any punishment.
Again, let’s be clear that the fact that the Sharia punishment was abolished does NOT mean that homosexual intercourse is not a sin or is accepted by Islam - all it means is that some scholars say it shouldn’t be punished in this world
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