Over the past ten days, Muslims have been engaged in a debate about the legitimacy of secret marriages, prompted by a young daʿi who propositioned a divorced single mother for a secret marriage. 

Secret marriage is a topic about which I have done a lot of research, writing, and community intervention. The online debate wasn’t the only discussion of secret marriage I’ve had this month; I was also contacted by the chair of a mosque board who discovered their Imam had engaged in a secret marriage; a broken-hearted wife who learnt that her husband of 25+ years was several years into a second secret marriage; a young officiant who realized that he had unwittingly performed a secret marriage; and a concerned community member whose relative had fallen victim to a secret arrangement and was concerned about the lack of community leadership addressing the issue.

Several years ago, it became apparent to me that secret marriages had become a widespread problem in the Muslim community, one about which a lot of misinformation and problematic assumptions circulated. I spent four years writing a paper assessing the legal, moral, and social dimensions of secret marriages, which was initially commissioned by the Hurma Project.

And yes, you read that right: four years – that’s how long it takes to do a deep dive into classical fiqh sources on the topic, draft the paper, share my research at four conferences and integrate the comments I received, elicit feedback from more than a dozen ulama and academics, go through the journal review process in which four reviewers commented on the paper, all while rethinking, revising, and polishing at every stage.

Having spent so much time on the topic, it’s been interesting to observe the lively debate about secret marriages online and offline over the past week. In this short essay, I want to offer four correctives to the approach, framing, and content of the contemporary Muslim discourse about secret marriages, and about Islamic law more broadly, apparent from the online debate.  

No. 1. Definitions, definitions, definitions… or what is a “secret marriage” anyways? 

Much of the discussion is marred with confusion about what constitutes a secret marriage in the first place. 

As someone new to X, I was fascinated by the bold declarations of (im)permissibility and (in)validity in 280 characters or less. As a general point, fiqh positions will always have more details and nuances: conditions, multiple views within a madhhab, etc. Tweeting inaccurate or incomplete fatwas is simply irresponsible and cannot be taken seriously. 

We can’t begin a religious assessment of secret marriages until we first define what it is that we’re talking about. As the interpretive principle states: “passing judgment on a matter is contingent on its (accurate) conceptualization” (al-hukm ʿala al-shayʾ farʿ ʿan tasawwurihi).

We talk about a lot of different arrangements and configurations under the rubric of “secret marriages”. The approach I take in the paper is to analyze secret marriages through three lenses: legal, moral, and socio-institutional. This is essential because according to the very jurists themselves who condemn secret marriages in all its forms, the legal definition and judgment may not match its moral/social definition.

1. The legal (strictly fiqhi) definition of jurists centers the validity of the contract, determined based on whether or not a marriage meets the minimum conditions of witness testimony and/or public proclamation. As I detail in the paper, jurists from the four Sunni madhhabs differ on the precise requirements to establish baseline validity, all of which are founded in directives from the Sunna. This multivocal and nuanced juristic discourse has to be respected and its complexity simply cannot be captured in a tweet (I spend five pages briefly summarizing the madhhab positions, and there’s a lot I couldn’t include!).

2. The moral assessment of secret marriages problematizes all marriages that are not communally enacted, publicly announced, and fully embodied among family, community, and broader society because they are in opposition to the Sunna and social norms. Importantly, the moral and religious condemnation of secret marriage is issued by the same premodern jurists who delineate the legal minimums for contractual validity, and may even consider some contracts to be ‘valid’ (more on this crucial distinction below!).

3. The social analysis of secret marriages examines these unions in a particular time and place: in 21st-century minority Muslim communities. This focused analysis allows us to consider the realities today: the benefits and harms of these marriages and the institutional safeguards (or lack thereof) in our communities.

The upshot of considering secret marriages through these three lenses is that a single jurist may consider a marriage contractually valid (and thus not a “secret” marriage in the juristic sense) while simultaneously describing that marriage as “secret” in the moral and religious sense, leading him to condemn it as religiously deficient and morally problematic and to advocate additional legal and social measures to prevent the practice in society. 

Or we might find that classical fiqh books consider a semi-secret contract formally valid, but given the widespread social harms of the practice, community leaders and institutions choose to unequivocally disallow secret arrangements. This would be in keeping with how Muslim jurists have routinely suspended normally permitted conduct throughout our history due to its social harms or cultural unsuitability (see pp. 14-15). 

The takeaway is that we need to be very clear about what we mean when we state that a “secret marriage is (im)permissible!” What is the specific arrangement being described? Who is it being kept secret from, why, and how? Which madhhab definition is being employed? And are we speaking about religious legitimacy or strict validity? Let’s turn to this last distinction, which deserves special attention.

No. 2. Formal legal “validity” does not necessarily entail permissibility, religious legitimacy, and moral rightness.

The conflation of formal validity and religious permissibility is one of the biggest category errors made in the discussion of secret marriage.

Validity (sihha) and invalidity (batil or fasid) are determinations of soundness of contracts (and acts of ritual worship) on the basis of the fulfillment or non-fulfillment of essential and minimal integrals or conditions. This differs from the legal determination (hukm taklifi) assigned to every act as one of five rulings: obligatory, recommended, permitted, disliked, and prohibited.

Since these are different categories, it means that an act can be BOTH valid/binding AND prohibited. Some analogous cases are a man praying in a silk shirt, a person performing hajj with stolen money, or a husband divorcing his wife during her menses (the first two cases are subject to juristic disagreement). Similarly, a contract can be “technically valid” but also entail a number of sins, transgressions, and deprivations of the rights of various parties—spouses, children, parents, extended family, and the community—for which the parties are morally and legally liable.

Jurists are the first to make this important distinction. Jurists might consider a marriage contractually valid (and thus not a “secret” marriage in the juristic sense) while simultaneously describing that marriage as “secret” in the moral or social sense, leading them to condemn it as religiously deficient and morally problematic and to advocate additional legal and social measures to prevent the practice in society.

As I argue in the paper, while jurists stipulate disparate minimums for contractual validity, nearly all secret marriage arrangements I’ve seen are nonetheless considered invalid (fasid), meaning they are incorrectly conducted by failing to meet the required conditions for the contract to produce its legal effects (sihha). They are also prohibited (haram) in themselves or for their entailments, meaning contracting such a marriage is sinful and entails punishment. 

Even as some jurists may make arguments that may seem to imply that some versions of secret marriage meet the basic conditions to make them technically valid (note the three caveats!), these same jurists nonetheless argue that such marriages are immoral, religiously deficient, unbecoming of a Muslim, and little more than a pretext for illicit sex.

“Legal validity is not synonymous with morality. It is a gross error on the part of Muslims to believe that an act that some jurists consider merely valid or not forbidden is morally unproblematic to engage in, or, put another way, to assume that legal validity and allowance overlap with the ethical categories of the moral, good, favorable, and pleasing to God.”  (p. 15)

Now compare this to the twitter conversation, revealing of the mindset of many Muslims today, in which fiqh minimums and technical validity are elevated as the sole benchmarks of an act’s religious legitimacy. In this paradigm of legalism, the necessary but insufficient minimum requirements of the law become the overriding paradigm of religious concern and moral authority.

Our moral compass is broken if we think that the only difference between a wife and an illicit girlfriend or an affair is a sham formality with two strangers acting as witnesses, or when we think that there is nothing wrong with a secret second marriage entailing lies, deceit, and harm to self, family, children, and community because “it’s a man’s right to have a second wife.”

Framing egregious religious and relational indiscretions in these ways is indicative of a deeply entrenched malaise in the Muslim community rooted in a superficial understanding of what it means to be a Muslim. It points to a culture in which Islamic norms are all about the outward form with no principles, purposes, morality, or social ordering behind them. In such a culture, so long as an individual follows the outward form of a religiously sanctioned behavior, regardless of their intentions, the ends they are pursuing, and the individuals they harm, they consider themselves morally vindicated. Fatwa shopping, where we look for any religious legitimation for what we know to be illicit and fail to determine whether our conduct is authorized by a legitimate authority, is an abdication of our moral responsibility as Muslims.

No. 3. Most Muslims know what’s up.

On a more positive note, one of the reassuring features of the online discussion was that the vast majority of Muslims, both men and women, expressed religious opposition to secret marriages. They instinctively knew that a secret marriage is not Islamic and that engaging in or defending such a marriage is wrong – even when faced with poorly argued defenses or religious texts that ostensibly permit such arrangements.

This is very heartening. Marriage is a public institution in Islam, plain and simple, and Muslims know this. So much of the Sunna unequivocally attests to this fact and it’s good to see that the majority of believers understand this and can call out licentiousness and sham marriages. This is the meaning of what is maʿruf in a community – what is known, customary, good, and culturally accepted.

No. 4. Muslim leaders and self-proclaimed daʿis can’t seriously be the ones exploiting loopholes for licentious ends.

While oftentimes irreligious trends and troubling innovations are initiated by ill-informed or non-scholarly Muslims, the opposite is true in this case: the wave of secret marriages in the Muslim community has been facilitated by those entrusted with the moral leadership of the community. 

Most Muslims only recognize marriage as what accords with the normative Sunna of the Prophet: honorable, negotiated between families, and public. By virtue of their knowledge of fiqh, some preachers and scholars have exploited loopholes and exceptions to licentious ends. In so doing, they bear the responsibility of initiating and exacerbating the incidence of sham marriages in the community.

Those entrusted with the moral leadership of the community have a responsibility to behave not only in exemplary ways that others can imitate, but like the Prophet, in ways that they can publicly demonstrate are beyond reproach. The Prophet Muhammad exemplified this public transparency when he was speaking to his wife Safiyya bint Huyayy at the gate of the mosque. When two men passed by them, he went out of his way to clarify to them that the woman with whom he was speaking was his wife so that there would be no misgivings in their minds (Bukhari #2039.)

If the scholars and community leaders do not uphold the moral values and religious standards that they are exhorting their congregation to adhere to, they are incapable of benefiting others. Do not put a woman in a position you would not accept for your daughter. And whatever you would not want to see become a norm in the community you are working tirelessly day and night to build, do not yourself engage in it. If the attention of leadership is too burdensome a trial, the best service a religious leader can do for themself, their family, and their community is to exit center stage. 

Not only have Muslim leaders failed to embody the religious ethic of the Islamic teachings they preach, but one of the reasons for the absence of a direct, effective, and unequivocal resolution to shady marriage practices in the Muslim community is that some of the leaders best placed to address it are afraid to because of their own behavior or that of their close colleagues. One of the lessons from the analysis of the Catholic clergy abuse scandal is that when a leader is trying to keep his relationships secret, he is vulnerable to explicit or implicit threats that if he confronts another leader’s violations, the skeletons in his own cupboard will be revealed.

In my article, I make important recommendations for institutional safeguards and a set of communal policies for Muslim leaders, officiants, and mosque boards to implement to address the current impasse (pp. 17-20). We each have a role to play: 

• Scholars, preachers, and students must assume exemplary conduct, hold each other accountable, clarify religious teachings about secret marriage to the community, and collaborate with specialists and experts (e.g.: therapists, lawyers) to conduct unbiased investigation and resolve accusations of misconduct and abuse.

• Community leaders and administrators are responsible for the implementation of religiously sound policies around marriage in their institutions, especially for their staff and volunteers, and like scholars, effectively address misconduct.

• Community members must educate themselves about Islamic law from authoritative sources, ensure they marry and divorce in legal and ethical ways, and hold their leaders and institutions to account.

There are many other problems in the understanding of Islamic law revealed by the online discussion of secret marriage that I could point out…

… Like the incorrect and unscholarly discussion of hadith evidence…

… Or the demeaning and undignified ways that women and the institution of marriage are spoken about…

… Or the mistaken explanations of mutʿa and misyar marriages, and the  conflation of either or both with secret marriage… 

These are other misunderstandings that point to the desperate need for frameworks and tools for nonscholars to navigate the anarchy that is Muslim discourse on Islamic law and ethics today. The problems revealed by the secret marriage debates are symptomatic of the deeper malaise and the reductionist paradigm of legalism I discuss in the paper.

I’ll soon be launching public education classes on Islamic law. I won’t be teaching fiqh, but I’ll be offering frameworks and principles for understanding the big questions about Islamic law, its history, and its application today. Questions like:

• How does legal interpretation work, and why does it sometimes seem like there are contradictions between hadiths on a single topic, or between a hadith and the legal ruling in fiqh?

• How did we go from the Prophetic community in Medina to four stable Sunni madhhabs? If the madhhabs disagree, can all four really be equally traced back to the Sunna?

• Does the fact that the vast majority of jurists were men mean that male bias permeates Islamic legal rulings? If this impacted some rulings, how do we know which ones, and what do we do now?

• How have Muslims historically negotiated rules we find challenging - like inheritance shares, plural marriages, and women-initiated divorce - through social customs? How can we learn from and employ these precedents?

• How come some legal rulings change (e.g.: signing interest-bearing contracts) while others don’t (e.g.: women marrying non-Muslim men)?

• How do Muslims abide by Islamic law when subject to multiple legalities? What is the relationship between fiqh rules + state legislation + religious morality?

… and many more.

If exploring these questions interests you, join my mailing list to be the first to receive announcements of the launch of Islamic law programming this fall, inshallah.