Al-salamu 'alaykum sister:
First I should apologize for the long time it has taken me to respond to your message. As you might have heard, I have been rather ill. But on a happier note, recently we were blessed with a wonderful baby boy.
But I should confess that there is another reason for the delay. This is a difficult issue to deal with. I did receive a large number of inquiries about this same issue, and I have tended to avoid responding to them because I am not exactly very excited about handling this weighty and serious problem.
Surprising to me, all schools of thought prohibited a Muslim woman from marrying a man who is a kitabi (among the people of the book). I am not aware of a single dissenting opinion on this, which is rather unusual for Islamic jurisprudence because Muslim jurists often disagreed on many issues, but this is not one of them.
All jurists agreed that a Muslim man or woman may not marry a mushrik [one who associates partners with God--there is a complex and multi-layered discourse on who is to be considered a mushrik, but we will leave this for a separate discussion]. However, because of al-Ma'ida verse 5, there is an exception in the case of a Muslim man marrying a kitabiyya. There is no express prohibition in the Qur'an or elsewhere about a Muslim woman marrying a kitabi. However, the jurists argued that since express permission was given to men, by implication women must be prohibited from doing the same. The argument goes: If men needed to be given express permission to marry a kitabiyya, women needed to be given express permission as well, but since they were not given any such permission then they must be barred from marrying a kitabi.
The justification for this rule was two-fold: 1) Technically, children are given the religion of their father, and so legally speaking, the offspring of a union between a Muslim male and a kitabiyya would still be Muslim; 2)It was argued that Muslim men are Islamically prohibited from forcing their wives to become Muslim. Religious coercion is prohibited in Islam. However, in Christianity and Judaism a similar prohibition against coercion does not exist. According to their own religious law, Muslim jurists argued, Christian men may force their Muslim wives to convert to their (the husbands') religion. Put differently, it was argued, Islam recognizes Christianity and Judaism as valid religions, but Judaism and Christianity do not recognize the validity of Islam as a religion. Since it was assumed that the man is the stronger party in a marriage, it was argued that Christian and Jewish men will be able to compel their Muslim wives to abandon Islam. (If a Muslim man would do the same, he would be violating Islamic law and committing a grave sin).
Importantly, the Hanafi, Maliki, and Shafi'i jurists held that it is reprehensible (makruh) for Muslim men to marry a kitabiyya if they live in non-Muslim countries. They argued that in non-Muslim countries, mothers will be able to influence the children the most. Therefore, there is a high likelihood that the children will not grow up to be good Muslims unless both parents are Muslim. Some jurists even went as far as saying that Muslim men are prohibited from marrying a kitabiyya if they live in non-Muslim countries.
This is the law as it exists or the legal legacy as we inherited it. In all honesty, personally, I am not convinced that the evidence prohibiting Muslim women from marrying a kitabi is very strong. Muslim jurists took a very strong position on this matter--many of them going as far as saying if a Muslim woman marries a kitabi she is as good as an apostate. I think, and God knows best, that this position is not reasonable and the evidence supporting it is not very strong. However, I must confess that in my humble opinion, I strongly sympathize with the jurists that argued that in non-Muslim countries it is reprehensible (makruh) for a Muslim to marry a non-Muslim. God knows best--I have reached this position after observing that the children of these Muslim/non-Muslim marriages in most cases do not grow up with a strong sense of their Islamic identity. It seems to me that in countries like the U.S. it is best for the children if they grow up with a Muslim father and mother. I am not comfortable telling a Muslim woman marrying a kitabi that she is committing a grave sin and that she must terminate her marriage immediately. I do tell such a woman that she should know that by being married to a kitabi that she is acting against the weight of the consensus; I tell her what the evidence is; and then I tell her my own ijtihad on the matter (that it is makruh for both men and women in non-Muslim countries). After telling her all of this, I add that she must always remember that only God knows best; that she should reflect on the matter as hard as she can; then she should pray and plead for guidance from God; and then ultimately she must do what her conscience dictates.
I hope this response helps answer your question. I pray to God to guide us both to what He pleases and wants, and that He helps the sister you wrote me about to find peace and tranquility with whatever decision she makes. God is the best guide and mentor--may He forgive our sins and bless us with His Compassion and Mercy.
With my sincere regards,
Shaykh Khaled Abou El Fadl
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