I support the right of same-sex couples to have civil marriages according to US law. Islam does not approve of same-sex acts, but I don’t believe that the social or religious traditions of any one group should dictate what sort of contracts or unions those of other beliefs can engage in. I want to preserve my right to have my Shariah marriage contract with my wife recognized by US law even though I know many Americans consider Islam’s conception of marriage to be unpalatable. I don’t see the desire of gay couples as any different.
In the near-carpal-tunnel-syndrome inducing outrage that followed that piece, many Muslims objected that I was ‘enjoining wrong’ instead of forbidding it. My response was that the Shariah has always, to a certain degree, allowed practices that Islam condemns as reprehensible among religious minorities (ahl al-dhimma) living under Muslim rule, practices that Muslim rulers could easily have banned (at least on paper). I wrote:
In classical Islamic civilization, Muslim authorities allowed Zoroastrians to engage in brother-sister marriage, Jews to charge interest, and Christians to cultivate wine and pigs. (Correction! In the previous article I added ‘Muslim judges could even hear such cases brought by non-Muslim litigants by applying the laws of their respective communities instead of the Shariah.’ I cannot actually find any evidence to back this up. To the contrary, all evidence seems to be against this!)
Because the scholars who built up the Shariah system could easily have prohibited such practices among its subjects but did not, the Shariah effectively facilitated them. If Muslim scholars and rulers permitted practices that they considered reprehensible and were in a position to deracinate,a fortiori(min bāb al-awlā), a Muslim minority with no power to regulate the conduct of those around it, like ours in the West, can condone the rights of others to reprehensible practices.