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In the Name of God بسم الله

The Supreme Court to reconsider LGBTQ and same-sex marriage/rights

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Again, I think this is a great thing on a societal level. It might be the push the US needs to not promote Haram.

Now, they’ve passed new laws that prohibits teaching elementary school aged children about the LGBTQ community. What positive steps in the right direction, IMO. As a future educator, I no longer have to worry about forcing to teach young children about issues that I’m personally against.

Thoughts?

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I think who marries who is none of the US government's business.  Marriage is a religious practice and our Constitution allegedly mandates separation of church and state.  In my opinion the government lacks the authority to tell any two consenting adults that they can't marry, and I do not want to give them that authority, as I'm not prepared to live under a evangelical protestant theocracy. 

As for teaching young kids about sexuality, that's crazy, let kids be kids.  But I've never seen it in the school where I've worked and none of my children have ever seen it.  Maybe y'all who have seen this are in more liberal states.  

I do, however, see kids standing up against bullying of their peers on the basis of perceived sexualty or sexual preference, and it is always a good thing to oppose bullying.  

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10 hours ago, notme said:

Constitution allegedly mandates separation of church and state

The separation is dwindling for sure. I think it might be a good thing on a societal level, imo, as a Christian nation is far better than the atheist-promoting far-left mess we are in now. Then again, I live in California (a Republican city). So these things are far worse in liberal cities that I’ve been to. 

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Posted (edited)

I certainly hope so. I don't live in the US, but man, ever since gay marriage got legalized, it's been a downward trajectory. Bakeries are forced to bake cakes for gay couples. And now, schools are arranging drag shows for children. If society continues to develop this way, your future children and grandchildren will no longer be muslims. I'm glad that more and more muslims are speaking out against the atheist woke ideology

Edited by Dubilex
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1 hour ago, Reza said:

Being from a religious source (ie Christian) is not inherently less valid than any other source, constitutionally speaking. The distinctions of validity are only on the basis of individual or social bias, and that’s the basis of public debate

Valid point. 

But I do not believe we should give our politicians the authority to decide who can marry.  Power always corrupts.  Less than a half century ago under these same traditions based laws, it was illegal for persons of differing races to marry each other.  Clearly, whichever tradition the conservatives are relying upon is not acceptable under Islam.  

I just don't trust politicians and believe they should be given as little power and for as limited a duration as is needed for them to do their jobs.  

And I don't trust "Christian values" in the modern political sense.  I don't know why anyone does.  They're going to come after us eventually, if we let them get to that point.  

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Posted (edited)

Technically, what you’re saying is not accurate. One justice, as part of the Dobbs ruling, called for reopening these issues, given that the Dobbs ruling overturned a common legal pillar between Roe v. Wade and the other cases. But most of the justices did not go that far. More on that below.

Overall, Dobbs is a maliciously badly reasoned, bad faith ruling. 

There are reasonable arguments that can be made to say that Roe v. Wade’s reasoning was kind of a shaky justification. Even the late justice Ruth Badger Ginsburg had her reservations about that 1970s era reasoning that was based off of a notion of a right to privacy. Ginsburg thought it would have been more stable and well-founded to base it off of equal protection reasoning instead. 

https://www.aclu.org/news/reproductive-freedom/for-justice-ginsburg-abortion-was-about-equality

https://www.washingtonpost.com/history/2022/05/06/ruth-bader-ginsburg-roe-wade/

The problem with overturning RvW at this point by saying now that this right is not actually valid is that there have been 50 years of precedent now and a general legal and social understanding that privacy is a right. That’s a precedent people take for granted. And as the OP alludes to, if that precedent disappears, everything that rests on it as a precedent over 50 years, including such things the OP doesn’t like such as gay marriage and gay rights, up to things the OP may not like revoking, such as basic access to birth control, could also eventually disappear. That’s why this is such a reckless move. That’s why there has traditionally been an understanding of a concept of stare decisis — to tend toward keeping the status quo and not to turn over precedents lightly. 

Basically, the five conservative justices who overturned RvW decided they wanted to remove the federal right to abortion, and just did it, legal collateral damage be damned.

Roberts, the Chief Justice, though a conservative appointee, split his votes, voting for the Mississippi law behind the ruling that restricted abortion to 15 weeks in that state but voted, along with the liberal justices, to uphold RvW for these sorts of reasons of judicial restraint. Unfortunately he was overruled in this. 

https://www.today.com/today/amp/rcna35229 

Justice Alito, for the majority, insisted that the ruling was strictly about abortion, and should not be taken to impact these other issues that rely on the same precedents. But the position is kind of weasely for the reasons already discussed.

Justice Clarence Thomas however was all-in on bulldozing all these issues. Thomas is a genuine bad person, a munafiq of the highest order. He subscribes to notions of Wahhabi-style founder intentions originalism while ignoring the fact that the founders would mostly have laughed at the idea of him becoming a Supreme Court judge, not to mention his interfaith marriage. 

Beyond this Supreme Court ruling, I think it’s pretty problematic for people in our community to be cheering the idea of invalidating the marriages of gay people in America. I think there’s actually a reasonable argument even from a conservative religious standpoint to not have a dog in that fight. Whatever one might think about the specific issue of gay sex, the US is a secular country, and marriage recognition on a state level is not a religious matter. Gay marriage on a civil level is simply a contract between two individuals about civil rights and duties toward each other. A Muslim can religiously be opposed to what a gay couple does in their bedroom, but I honestly do not see a good Islamic argument for why two dudes can not designate each other with power of attorney, right to inherit, right to visit each other in the hospital, etc. 

If Christian theocratic tendencies can invalidate their civil contracts, they could eventually do the same for our marriages. Consider yourself warned, and if it happens, know that I told you so.

My hope in this is that some jurisprudential ballet can be done to find an alliance of liberal and conservative justices to shore up some of these other issues with legal reasoning that is agreeable to everyone and more stable. 

We will see. 

Edited by kadhim
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18 hours ago, kadhim said:

A Muslim can religiously be opposed to what a gay couple does in their bedroom, but I honestly do not see a good Islamic argument for why two dudes can not designate each other with power of attorney, right to inherit, right to visit each other in the hospital, etc. 

I don't know the details about North America, but in Europe the significant change between gay registered partnerships and gay marriage is the right to adoption, and this is also what I personally find most problematic because now a third party is implicated in an unnatural and immoral structure without any choice of their own. 

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41 minutes ago, Mahdavist said:

right to adoption, and this is also what I personally find most problematic because now a third party is implicated in an unnatural and immoral structure without any choice of their own

Sure, problematic.  But still better than growing up in foster care or a series of group homes.  Personally, I think single folk who want to should be allowed to adopt too.  

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Posted (edited)
2 hours ago, Mahdavist said:

I don't know the details about North America, but in Europe the significant change between gay registered partnerships and gay marriage is the right to adoption, and this is also what I personally find most problematic because now a third party is implicated in an unnatural and immoral structure without any choice of their own. 

Ok. That’s an interesting argument. Ultimately I don’t think it’s compelling though, because adoption isn’t an inherent, essential aspect of the relationship contract. They are distinct legal issues. 

Yes, in a modern secular jurisdiction, as a result of other human rights / non-discrimination statutes, full legal recognition of gay relationships opens the door to allowing a married gay couple to apply to be evaluated as suitable adoptive parents based on the exact same evaluation criteria as a heterosexual couple. It becomes legally intractable to prevent the second thing at that point. But legally and ethically speaking they are two separate issues.

So I could see a religious argument against gay adoption specifically, but in itself I don’t think that is a valid fiqhi argument against the secular same sex marriage contract. Again because adopting isn’t an essential aspect of the arrangement. It’s a secondary issue. 

Edited by kadhim
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4 hours ago, kadhim said:

So I could see a religious argument against gay adoption specifically, but in itself I don’t think that is a valid fiqhi argument against the secular same sex marriage contract.

If you're looking for a fiqhi argument you don't even need to go that far down the line. The relationship by definition is haram. 

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7 hours ago, Mahdavist said:

If you're looking for a fiqhi argument you don't even need to go that far down the line. The relationship by definition is haram. 

Oh. Not so fast. That’s actually not correct, even by conservative reasoning. So we are talking about the secular civil marriage between two same sex individuals. The civil marriage, as already mentioned, is a civil contract involving various rights and responsibilities toward each other. None of those rights and responsibilities (power of attorney, right to inherit from each other, right to visit each other in the hospital, etc) are inherently haram for two men or two women to agree to give each other.

Now, by traditionalist methodology applied to classical texts, it is considered haram for the two to be physically intimate with each other. But. Is physical intimacy essential to the legal validity of the secular civil marriage contract? No. One can argue that, de facto, by common practice, a gay marriage usually is consummated, but it is not required, strictly speaking, for the contract to be valid under the secular legal code. Just as a nikah contract is perfectly valid even if the two people, by mutual agreement, do not consummate the marriage (from an ethical standpoint, it’s not considered ideal, and it potentially impacts things like iddah and the playability of maher in the case of divorce, but otherwise the marriage is valid), in the same way, so long as the two were otherwise eligible for civil marriage and performed the required legal steps to formally solemnify the union, the same is true for a civil gay marriage. 

From a purely minimalist viewpoint of the classical fiqh of mua’malat, a civil gay marriage would be, in essence, a business contract relating to certain unobjectionable civil and financial rights and obligations between two people of the same gender. From a strict fiqhi standpoint, that is the essence of the contract, and any inappropriate sex acts between the two people are a separate question from the legitimacy of the union itself. 

How do you like them apples? ;)

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I was skeptical so I looked it up.  It's true; in most US states that a Civil Marriage does not require consummation. 

Weird.  

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6 hours ago, kadhim said:

. Is physical intimacy essential to the legal validity of the secular civil marriage contract? No.

Salam your whole of argument has been based on giving priority to Civil marriage over clear religious rulings by calling religious rulings as obsolete rules due too being too old but on the other hand you have given priority to Civil rules by assuming these rules as new rules which nullifies too old religious rules so if one day civil rules say that you must deny Allah then worship idols so therefore you will deny Allah so then you will worship idols ?! which if you say yes then you will be out of Islam but on the other hand if you say no to it then you have followed too old obsolete religious rules which is in contradiction with your logic about giving priority to civil rules.

14 hours ago, notme said:

Sure, problematic.  But still better than growing up in foster care or a series of group homes.  Personally, I think single folk who want to should be allowed to adopt too.  

It's totally forbidden which we can't expect good outcome from Haram adopting children by gay couples even in bets mode is likewise building best mosque from income from selling wine which mud & cement  of this mosque has been  mixed with wine  nevertheless growing up in foster care or a series of group home is not good but growing up by a gay couple is more worse than these two even if children have been raised in best envioronment by gay couples .

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6 hours ago, Ashvazdanghe said:

growing up in foster care or a series of group home is not good but growing up by a gay couple is more worse than these two even if children have been raised in best envioronment by gay couples .

This is not what I've seen in the United States, though I've personally only seen children raised by two women, not two men, and those children are normal.  The people I've known who spent time in foster care were all traumatized by it.  Even in the best cases, it's unstable and most cases are not best cases. The people I've known who spent formative years in group homes are in an even worse place, mentally and spiritually. Kids don't really need perfect parents; they need stability and to feel that they are loved.  

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8 hours ago, Mahdavist said:

If you're saying Islam permits two men to live together without being intimate,  then yes this is the case.

However the very fact that they identify themselves as a couple, even without intimacy,  is itself a promotion of a form of partnership which is haram. 

 

Exactly. Enjoining Good and forbidding Evil (Amr Bil Maroof...was Nahiya Al Munkhar) is wajib. The practice of this is of course different depending on the individuals situation but it is nevertheless wajib. At the same time doing the opposite, ii.e. Promoting Evil, even if this necessarily doesn't also equate to forbidding Good is still haram. If two men living together call themselves a 'couple' or they are 'together' or 'in a relationship' even if this is not a sexual relationship these terms strongly imply a sexual relationship based on how these terms are used in contemporary English lingua franca. So therefore, describing the situation as such is Promoting Evil, even if this 'relationship' doesn't involved a sexual act. They are 'clearing the way' for other 'muslims' to make these claims. 

If two men are living together, and not in any sort of 'relationship;, why can't they just say 'We're roommates?'. That would be clear, obvious, and without any ambiguity or any hint of 'Promoting evil'. To use another terms like 'were in a relationship' means that there is something else going on between them, other than being roommates. 

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9 hours ago, Ashvazdanghe said:

Salam your whole of argument has been based on giving priority to Civil marriage over clear religious rulings by calling religious rulings as obsolete rules due too being too old but on the other hand you have given priority to Civil rules by assuming these rules as new rules which nullifies too old religious rules so if one day civil rules say that you must deny Allah then worship idols so therefore you will deny Allah so then you will worship idols ?! which if you say yes then you will be out of Islam but on the other hand if you say no to it then you have followed too old obsolete religious rules which is in contradiction w

Salams brother. I think you’re missing the point of the post here.

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1 hour ago, Abu Hadi said:

If two men are living together, and not in any sort of 'relationship;, why can't they just say 'We're roommates?'.

The problem with that response in the context of the argument I raised is that roommates don’t have any recognized legal rights toward each other as is the case in a civil marriage. 

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On 6/26/2022 at 11:47 PM, Mahdavist said:

If you're saying Islam permits two men to live together without being intimate,  then yes this is the case.

However the very fact that they identify themselves as a couple, even without intimacy,  is itself a promotion of a form of partnership which is haram. 

 

Ah, but we’re not talking about the relationship here. We’re talking about the civil marriage as a business contract

I know you dislike the conclusion here. And I admit I’m playing around just a little bit. But at the same time, I’m also somewhat serious, because I’m applying a legit classical fiqhi analysis and I don’t see any holes in the argument. And you know I’m pretty good at poking holes in classical fiqhi arguments. Can any of you poke a hole in what I’m saying here from a fiqh perspective? 

Side note: This is a passing comment I won’t press any further here, but I think this serves as a nice reductio ad absurdam of the atomized, context-unaware nature of a lot of classical fiqhi approaches. 

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On 6/27/2022 at 9:56 AM, kadhim said:

Ah, but we’re not talking about the relationship here. We’re talking about the civil marriage as a business contract

I know you dislike the conclusion here. And I admit I’m playing around just a little bit. But at the same time, I’m also somewhat serious, because I’m applying a legit classical fiqhi analysis and I don’t see any holes in the argument. And you know I’m pretty good at poking holes in classical fiqhi arguments. Can any of you poke a hole in what I’m saying here from a fiqh perspective? 

Side note: This is a passing comment I won’t press any further here, but I think this serves as a nice reductio ad absurdam of the atomized, context-unaware nature of a lot of classical fiqhi approaches. 

Salaam brother, from a purely technical perspective, perhaps your argument does not have any holes in it. I understand the argument that civil laws in secular countries need to be judged on their own merits, that they need to be viewed from within their own secular paradigm. 

But all legalistic jargon aside, 'promoting of good and forbidding of evil' is an essential practice of Islam. This is why I am wary of aligning myself with the either side of this "leftist-rightist" duopoly that exists in Western political/social discourse. Even if you find some legalistic loophole for defending something (such as gay marriage), the overall reality is that it's wrong. 

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3 hours ago, Abu Hadi said:

If two men are living together, and not in any sort of 'relationship;, why can't they just say 'We're roommates?'. That would be clear, obvious, and without any ambiguity or any hint of 'Promoting evil'. To use another terms like 'were in a relationship' means that there is something else going on between them, other than being roommates.

When I was a child, way back in the previous century, two elderly women lived together in a house in my neighborhood.  It never crossed my mind that they might be "a couple". They were just two unmarried women who shared a house.  Why would it be wrong for them to designate the other as having power of attorney and the authority to make healthcare decisions on her behalf? This helps not only cohabiting homosexual persons, but also siblings or friends who simply benefit from sharing expenses and having an executor to their estate in the event of their death. 

Or what if a person's spouse is unable to carry out these duties, or unwilling or untrustworthy?

Individualism is a curse brought upon us by capitalism to make us each have to pay for our own entire household. Anything that counters that is a good thing, in my view.

But I'm also opposed to government registration of marriages, because it seems to me to be none of their business. Any adult should be able to designate any other adult as their executor and power of attorney.

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Posted (edited)
35 minutes ago, Mahdavist said:

The moment you call it a marriage it becomes problematic. 

If there was a conclusion I must have missed it. It's not a question of liking or disliking any eventual conclusion that may come out of the discussion,  it just happens to be the case that homosexual relationships/marriages/contracts  or any other tag you want to give them, are haram. How I feel about it is irrelevant. 

Forget about poking a whole, the entire premise is invalid from the moment you recognize it as a gay marriage,  arrangement, contract or anything of the nature.  

I wasn't aware, thanks for the information.  

Would it really kill you to humbly acknowledge my genius for once, habibi? ;) You undermine yourself with this pettiness. 

But it’s Ok. God is sufficient as my witness. :) Still love ya brah.

Edited by kadhim
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Posted (edited)
4 hours ago, kadhim said:

The problem with that response in the context of the argument I raised is that roommates don’t have any recognized legal rights toward each other as is the case in a civil marriage. 

There is only two cases that I can think of where this would even be relevant. First, for health insurance and second for tax purposes. For health insurance, our health insurance system in this country is completely screwed up on many different levels. There are so many ridiculous aspects to it that don't benefit people at all, that this is one of them, but there are many others. This needs it's own thread. It is not specific to the supreme court decision we are discussing. 

The other is income taxes. It is wrong and unjust that single people should have to pay more in income taxes than married people. All single people suffer from this, it is not specific to 'roommates'. This is because of the greed of the U.S. Govt, It is not specific to the supreme court decision. so not directly relevant. For example, in Islam, khums is 20% of your savings earned from income from that year. It doesn't matter if you are single or married to 1 wife or 4 wives. The rate is the same in either case. This is the correct way, not the way the U.S. Govt does it. Khums is not an income tax or a wealth tax, it is a savings tax on savings from that year only. Again, this is the fair way. 

All the other things, like Inheritance, directives for end of life and other medical decisions, etc, could be dealt with thru Power of Attorney. You can make your roommate your designee for power of attorney. You could make anyone the designee, so that is also not directly relevant. 

Edited by Abu Hadi
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43 minutes ago, Abu Hadi said:

All the other things, like Inheritance, directives for end of life and other medical decisions, etc, could be dealt with thru Power of Attorney. You can make your roommate your designee for power of attorney. You could make anyone the designee, so that is also not directly relevant. 

But you have to hire a lawyer and file these documents with a court.  In the case of "legal marriage", it is automatic, for better or for worse.

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Many here are confusing the man-made-laws with islamic-laws.

In islam, marriage is between a male, female and the the 3rd party is our Creator. In the man-made-laws, it's a legal entity marrying another legal entity and the 3rd party is the state. The legal entity can be a human being, an animal, or something else, depending on the policies of the nation.

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2 minutes ago, EiE said:

Many here are confusing the man-made-laws with islamic-laws.

Right.  

We can't use Islam to make proclamations on secular laws.  

"Civil marriage" is not marriage according to Islam. 

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16 hours ago, notme said:

This is not what I've seen in the United States, though I've personally only seen children raised by two women, not two men, and those children are normal.  The people I've known who spent time in foster care were all traumatized by it.  Even in the best cases, it's unstable and most cases are not best cases. The people I've known who spent formative years in group homes are in an even worse place, mentally and spiritually. Kids don't really need perfect parents; they need stability and to feel that they are loved.  

Salam I totally agree with you about their need of stability & feeling that they are loved which also I agree that they have been traumized in foster care also I have no problem with rising them with two women or two men which they have no sexual relation with each other  but on the other hand I totally disagree with rising children by gay couples even if children have stability & felling of receiving love because raising with gay couple is both injustice for children also against all of religious teachings in any religion or sect  which is in line with following footstepts of Shaitan/Satan in any religion which leads trapping innocent children in trap of Shaitan/Satan & corrupting their soul from childhood.

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13 hours ago, kadhim said:

Salams brother. I think you’re missing the point of the post here.

Salam , Maybe my example has been off topic but on the other hand  your point is pritorizing man made civil laws over religious rulings by calling religious laws as roo old & obsolete .

13 hours ago, kadhim said:

And you know I’m pretty good at poking holes in classical fiqhi arguments. Can any of you poke a hole in what I’m saying here from a fiqh perspective? 

Side note: This is a passing comment I won’t press any further here, but I think this serves as a nice reductio ad absurdam of the atomized, context-unaware nature of a lot of classical fiqhi approaches. 

Some of recent  problems likewise gay marriage  have not been issue of classical fiqhi arguments because such matters have not existed on that era nevertheless formula for facing with it has been provided by divine rules from Allah which it just has needed adopting & intrpretation of it with current problems by knowledgeable Marjas & scholars which Imam Mahdi (aj) has said that in new events refer to Marjas(narrators of ourtraditions) because in opposition to classic solid Sunni Fiqh we have dynamic Shia Fiqh which benefits from it's classical Fiqh which due that Sunnis rely on Civil law because their Fiqh has no answer for new events   but on the other hand Shia fiqh could be adopted with civil law & new events by priotorizing divine law over anything nevertheless it accepts civil laws until it's not against divine law. 

Quote

Hadith of Imam Mahdi((عليه السلام))

14 - And regarding the new matters and events refer to the narrators of ourtraditions because they are my authority over you and I am God's authorityover them .(Bahar_ol_Anvar , Vol.53 , P.181)

https://www.erfan.ir/english/10249.html

The events are meant to be social and governmental events
 

Quote

The events are meant to be social and governmental events
Ayatollah Moqtada'i, referring to the narration of Is'haq ibn Ya'qub, said: "The meaning of 'narrator of a hadith' is obviously that it does not mean an ordinary narrator, because in addition  says: they are my authority over you which a person who has heard the a hadith or multiple Hadiths from the Imam cannot be authority from  Imam  , but must be a person who understands the narration and has an argument to express the rules and knows its opposites, which is the comprehensive mujtahid.

http://vasael.ir/fa/news/5132/مراد-از-حوادث-واقعه-امور-اجتماعی-و-حکومتی-است

http://vasael.ir/fa/news/7212/دستور-مراجعه-امت-اسلامی-به-فقیه-جامع‌الشرایط-در-حوادث-واقعه

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Posted (edited)
13 hours ago, Ashvazdanghe said:

Salam , Maybe my example has been off topic but on the other hand  your point is pritorizing man made civil laws over religious rulings by calling religious laws as roo old & obsolete .

Salam. No, that’s not what I’m saying. That’s not my point here at all. The original didn’t “prioritize” civil laws over religious rulings. In fact it deferred to religious law approaches completely.

It went through a mental exercise that consisted of (1) taking it as a given that gay sex is haram as per traditional understandings (2) recognizing that sex is not legally required for a civil gay marriage to be valid by American law (3) analyzing the validity of the essential civil rights and responsibilities comprising a civil gay marriage and seeing whether those essential aspects make a valid contract by classical Islamic standards (4) concluding that there are no sharii objections to the terms of the contract itself, only to the sex, which again is not essential to the contract. 

It’s a minimalist sharii analysis of civil gay marriage, and civil marriage in general for that matter, as a contract. That’s it, that’s all. 

People can disagree with the conclusion of the argument. And I’m sure most will. But the point is it’s a validly constructed classical fiqhi legal argument.  

I do want to make one observation here to counter a bit of a word game played by traditionalists. All of it—whether civil law made in a parliament or the Islamic fiqh derived in the hawzais man-made law. All of it. Even if the marja refers at the base to texts like Quran and hadith that are understood to be divinely revealed or inspired—if there is a human in the middle interpreting it for us according to some sort of scholarly principles—it’s man-made law. Even if you go Akhbari style and try to read it off from the ahadith literally yourself, (and I don’t advocate that either) even then it’s still man-made. It’s just the individual is making it, according to his own assumptions and methods rather than the marja’s assumptions and methods.

It’s all man-made law. You can say it’s infused with the breath of divinity in the case, but there’s a human in the loop there making the bread. Always. 

Edited by kadhim
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12 hours ago, kadhim said:

All of it—whether civil law made in a parliament or the Islamic fiqh derived in the hawzais man-made law. All of it. Even if the marja refers at the base to texts like Quran and hadith that are understood to be divinely revealed or inspired—if there is a human in the middle interpreting it for us according to some sort of scholarly principles—it’s man-made law. Even if you go Akhbari style and try to read it off from the ahadith literally yourself, (and I don’t advocate that either) even then it’s still man-made. It’s just the individual is making it, according to his own assumptions and methods rather than the marja’s assumptions and methods.

Salam certainly you don't know about temporary secondary ruling  Fatwa which is "civil law made in a parliament or the Islamic fiqh derived in the hawza"  so therefor it's interpretatio of divine law in temporary & emergency condition in opposition to your claim about calling it as man-made law

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The second sentence (the next sentence) is a new Shari'a sentence that replaces the first sentence of a subject due to special circumstances such as urgency and hardship; Such as the obligation to eat dead meat in an emergency, which is normally forbidden. A government order is an order for the partial execution of primary or secondary orders and is different from a secondary order.

Definition of common term

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Scholars of the principles of jurisprudence have divided the Shari'a rulings into two categories: primary rulings and secondary rulings.

If a sentence is placed on a subject without considering secondary topics such as urgency and also without considering the obligatory state of doubt and ignorance about the actual sentence, it is called the primary ruling ; Like the "obligation" of ablution for prayer.

Uncommon definition

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Some scholars of the principles of jurisprudence have used these two terms in another meaning; In this view, the real ruling is called the first ruling and the apparent ruling is called the second ruling. [3]

Number of secondary rulings
It is not possible to comment on the number of secondary rulings in Islamic jurisprudence and what they are dedicated to; Some of these rulings are:

Necessity and urgency
Reluctantly
damage
Hardship
Most important and important
Obligatory introduction and forbidden introduction
Maintain order
Taqiyya
Supporting the obligatory and leaving the forbidden
Support for sin and oppression
Prohibition and order of parents and husband
Vows, covenants and oaths

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13 hours ago, kadhim said:

All of it—whether civil law made in a parliament or the Islamic fiqh derived in the hawzais man-made law. All of it. Even if the marja refers at the base to texts like Quran and hadith that are understood to be divinely revealed or inspired—if there is a human in the middle interpreting it for us according to some sort of scholarly principles—it’s man-made law. Even if you go Akhbari style and try to read it off from the ahadith literally yourself, (and I don’t advocate that either) even then it’s still man-made. It’s just the individual is making it, according to his own assumptions and methods rather than the marja’s assumptions and methods.

 

13 hours ago, kadhim said:

It’s just the individual is making it, according to his own assumptions and methods rather than the marja’s assumptions and methods.

It’s all man-made law. You can say it’s infused with the breath of divinity in the case, but there’s a human in the loop there making the bread. Always. 

The primary rulers versus the secondary rulers are those jurisprudential rulings that have been issued according to the interests and corruptions, and this ruling is without considering exceptional cases such as urgency, hardship, loss and taqiyyah; But the secondary rulings are in view of these special cases. [1] For example, the ruling on the obligation of ablution for prayer is a primary ruling, and the ruling on the obligation of tayammum is a secondary ruling for a person who has difficulty performing ablution.

One of the differences between the first sentence and the second sentence is that the first sentence is permanent; However, the secondary ruling is temporary. [2] Also, in religious rulings, the principle and centrality are with the first ruling, and the secondary ruling is the substitute and subsidiary of the first ruling. [3]

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Differences between the first and second ruling

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The differences between the first ruling and the second rulingare:

The first provisions are permanent and unchangeable unless the subject matter changes; For example, the prohibition of wine is permanent, but the secondary rulings are unstable, and as long as there are those conditions and conditions, such as: urgency and reluctance for the obligated person, there is also a secondary ruling: , But after eliminating the loss, the obligated person must follow the first rule and fasting becomes obligatory.
The first rulings are common between the ignorant and the scholar; But secondary rulings  are not common to all obligors; Rather, they are reserved for the obligors who have special situations and conditions.
Secondary rulings are along the first rulings, not across them; That is, in terms of rank, the second ruling is in the stage after the first ruling, not that they are in the same rank.
In the conflict between the reason of the second ruling and the reason of the first ruling, the right of precedence is with the reason of the second ruling; Because the reason for the second ruling governs the reason for the first sentence, in other words, the reason for the ruling as secondary to a subject always indicates the scope of the sentence of the same subject with its first ruling. [4]

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13 hours ago, kadhim said:

It’s all man-made law. You can say it’s infused with the breath of divinity in the case, but there’s a human in the loop there making the bread. Always. 

You always put man-made civil law which has been driven from secularism or maybe some christian rulings in higher position than any Shia Islamic law by labling primary & secondary rulings of Shia Islam as Man-made  laws . 

The difference between a government order and a secondary ruling

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During the first and second rulings imposed by the Shari'a, there is another ruling from the Islamic ruling side; Both infallible and non-infallible are issued and it is called a government ruling , and since a government ruling is always an order to execute a primary or secondary ruling, some jurists have called it an executive ruling.

A government decree differs from primary and secondary decrees in three ways:

  • A government order is always more detailed than the first or secondary ruling.
  • The validity period of the sentence varies; Primary judgments, which belong to subjects in the natural state, are permanent, and secondary judgments are valid as long as secondary rulingss, such as urgency, exist; However, the ruling of the government is based on expediency and the titles that the Islamic ruler has taken into account in issuing the ruling.
  • The discussion of a government decree is always a thematic one. In other words, the discussion is about recognizing the instance of the Shari'a rulings, while the discussion of the primary and secondary rulings is related to the discussion of the general rulings themselves; This means that the Islamic ruler, as a mujtahid , first deduces the general rule from the Qur'an and Sunnah, and then, after carefully identifying the issue, applies the general rule to its instance and orders its implementation. [ Citation needed ]

History

The discussion of secondary rulings has existed since the beginning of Islam ; Because rules such as denying harm , denying embarrassment and the necessity of taqiyyah, which are the subjects of secondary rulings, are rooted in the Qur'an and hadiths . [5] 

 

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15 hours ago, kadhim said:

People can disagree with the conclusion of the argument. And I’m sure most will. But the point is it’s a validly constructed classical fiqhi legal argument.

 

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New issues that in Islamic jurisprudence did not have a Shari'a ruling or issues that had a Shari'a ruling; But due to the changing conditions of the society, a new Shari'a ruling is expected. Some examples of emerging issues are: banking , insurance , organ transplants , gender reassignment , brain death .

The jurists refer to the general laws in Islamic sources to find the Shari'ah ruling on these issues.

Issues about which there is no Shari'a ruling in Islamic jurisprudence are called new issues. [1] Also to issues on which there has been a Shari'a ruling in the past ; But with the change of society, a new Shari'a ruling is expected, new issues are said. [2] In order to find the Shari'a ruling on such issues, the jurists use a series of general laws and principles in the sources of Islamic jurisprudence (ie , the Qur'an , narrations and Aql/reason [Mind & Logic] ) that are answering for each age and time. [3]

 

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There are new issues in various matters. In medicine, issues such as autopsy , brain death , organ transplantation , artificial insemination and gender reassignment can be mentioned. In matters of worship, we can mention the ruling on prayer and fasting in Qutb [North & south poles] , the injection of fortifying drugs on the fasting person, and the ruling on seeing the crescent with the naked eye. Issues such as inflation, banking , insurance , and the sale of lottery tickets are also emerging in the economy . [4]

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