Bradley Miller, Judged

civil rights, culture, law, Philosophy of Law, politics Leave a reply

Professor Bradley Miller has been appointed to the Ontario Superior Court of Justice, effective January 16th, 2015. His bio there states that “his main areas of practice were commercial litigation, class actions, administrative law, constitutional law and human rights law”. And yet it would seem that his understanding of human rights is less than complete.

In an article written two years ago in Public Discourse, (Same-Sex Marriage Ten Years On: Lessons from Canada), Miller makes a range of claims that are supportable only if one believes that the right to tear down others is more valuable to society at large than the right to not be torn down.

Before getting into the article, it’s important to bear a few things in mind: words matter. Words have an impact on those around us. There are things about ourselves that we, to some degree, can choose (such as the opinions we hold and the statements we make), and there are those that we can’t (such as the colour of our skin, and our sexual orientation). Unlike the US, Canada has chosen to recognise that belittling and demeaning people for things that are not their choice is simply not cool. Belittling and demeaning people are, in fact, choices that we can opt not to make. As such, Canada has instituted the Human Rights Commission to investigate (and punish) those who cross the line with regards to belittling and demeaning people. There are legitimate questions to be ask and conversations to be had about the powers that the HRC has, and whether they are too much (or too little), but as Miller’s article doesn’t focus on that, I’m not going to delve into it here. Miller, instead, opts to lay the blame for all of this at the feet of the legalisation of same-sex marriage.

I’m going to start with his section “The Impact on Human Rights”.

The formal effect of the judicial decisions (and subsequent legislation) establishing same-sex civil marriage in Canada was simply that persons of the same-sex could now have the government recognize their relationships as marriages

Straight out of the gate, he’s getting things wrong: the Canadian government is not recognising same-sex “relationships as marriages”, they are recognising same-sex marriages as marriages. This kind of obfuscation, of conflating ‘relationship’ with ‘marriage’, doesn’t strike me as accidental (since it occurs throughout the piece), but it does two jobs:

  1. It fails to acknowledge same-sex marriages as marriages, which is a legal fact.
  2. It implies that the Canadian government has done something ridiculous, i.e. consider same-sex relationships (i.e. dating) to be the same as marriages, generally speaking.

The first is a failure to recognise the legal facts of the matter, and the second is a rhetorical flourish that encourages us to reject the (misrepresented) position of the Canadian government. He repeats this within the same paragraph:

What transpired was the adoption of a new orthodoxy: that same-sex relationships are, in every way, the equivalent of traditional marriage, and that same-sex marriage must therefore be treated identically to traditional marriage in law and public life. [bold font added for emphasis]

Given the ridiculous of the first part of the sentence, it would seem that the second part is also ridiculous, even though that this is not the position of the Canadian government. To rephrase this in more representative way would be to state things thusly:

Same-sex relationships are, in every way, the equivalent of not-same-sex relationships, and that same-sex marriage must therefore be treated identically to not-same-sex marriage in law and public life.

Here, of course, there’s nothing objectionable in the rhetoric, though one may still (wrongly) disagree with the specific points being made. No obfuscation is being made, no lie is being told, and the rest of his article would not follow quite so well. Thus is honesty the enemy of Professor Bradley Miller.

A corollary is that anyone who rejects the new orthodoxy must be acting on the basis of bigotry and animus toward gays and lesbians. Any statement of disagreement with same-sex civil marriage is thus considered a straightforward manifestation of hatred toward a minority sexual group. Any reasoned explanation (for example, those that were offered in legal arguments that same-sex marriage is incompatible with a conception of marriage that responds to the needs of the children of the marriage for stability, fidelity, and permanence—what is sometimes called the conjugal conception of marriage), is dismissed right away as mere pretext. 1

Here with have the conflation of a number of ideas, all rolled up into a ‘poor little bigot’ defense: ‘bigotry’ and ‘hatred’ are two entirely different things, and none of this is a corollary of his previous paragraph. This is fairly standard rhetorical move, to respond to a criticism by saying “oh, you must be disagreeing with me because you think I hate [the topic at hand]”. This is a form of the Ad Hominem fallacy, whereby instead of dealing with the criticisms being leveled at ones terrible argument, one instead targets the person they are talking with, in this case by claiming the interlocutor is making claims about the psychology of the bigot. When in reality, bigotry has little to do with hatred (though it can well be fueled by it, the relationship is neither necessary nor sufficient).

Let’s dig into this particular pile of bullshit:

  1. A corollary is that anyone who rejects the new orthodoxy must be acting on the basis of bigotry and animus toward gays and lesbians.

If we start from the position that marriage is a legal contract that two people enter into in order to gain certain things from the state, and also a social statement made by those two people about the status of their relationship and the seriousness of their commitment to one another (which seems to be the whole schtick of marriage is from what I can tell), then there would be no reason to distinguish same-sex marriage from not-same-sex marriage. Zero. Zip. Nada. Therefore, if the objection to two people getting married is that they are of the same sex… If one is saying “hey, those two are of the same sex!” as an objection… Then it would seem that, yes, ‘bigotry’ is the source.

Furthermore, bigotry has, in and of itself, nothing to do with hatred. Bigotry is merely an attitude or action expressing bias or discrimination. If one is discriminating against same-sex couples merely on the basis of their being of the same sex, then we have a clear cut case of mere discrimination, which is also known as bigotry.

Why? Because the only times we object to not-same-sex couples from marrying is when they are breaking the law: one of them is already (and currently) married, or underage. These are the only times that I can think of when the state refuses to legally acknowledge the marriage of those two people.

  1. Any reasoned explanation (for example, those that were offered in legal arguments that same-sex marriage is incompatible with a conception of marriage that responds to the needs of the children of the marriage for stability, fidelity, and permanence—what is sometimes called the conjugal conception of marriage), is dismissed right away as mere pretext.

The issue here is that it is “mere pretext”: we don’t apply this bar to not-same-sex couples. If this standard is to be applied to people than it must be applied across the board to all people. If it’s applied selectively, as Miller is arguing for, to only those couples who are of the same sex, then we’re right back at ‘bigotry’ as the sole basis for action.

The rest of his article, which stems from the obfuscatory passages, can be summed up as “bigots are getting their knuckles slapped across Canada, and all of this (ALL OF THIS) is because of the legalisation of same-sex marriage. Won’t someone think of the bigots?!?!?”

I have little sympathy for this kind of reasoning, such as it is. While he complains that “much speech that was permitted before same-sex marriage now carries risks”, one can merely nod and reply ‘yes, and much physical violence that was permitted before children were recognised as people now carries risks’: laws change. Societies have vastly improved over the last few hundred years. Children are no longer seen as the sole property of their father (no, not their parents, their father). How does Miller expect us to judge him when he wistfully looks back at a past where humans were denied human rights?

I’m unable to see this person’s raising to the Superior Court to be a good thing, from any angle. While the Globe and Mail article that alerted me to this guy quotes unnamed “legal scholars”, I’m unimpressed by their claims:

Legal scholars said in interviews that Prof. Miller’s comments do not mean he is unfit for the bench, as long as he is willing to put aside his views and keep an open mind.

The article that was published isn’t a fair-minded overview of the problems of the Human Rights Commission, nor is it an academic delving into the “impact” of legalising same-sex marriage (as falsely claimed). It’s nothing less than the screed of an entirely closed mind, filled with ideological talking points that don’t stand up to the barest of scrutiny. And this is who our Conservative government wishes to put in charge? At one point in his article, Miller applauds the “reviewing courts [who] have begun to rein in the commissions and tribunals (particularly since some ill-advised proceedings against Mark Steyn and Maclean’s magazine in 2009), and restore a more capacious view of freedom of speech”, but missing from this applause is an acknowledgement that since 2006, the Conservative’s have replaced 550 of Canada’s 840 Federal Judges: of course the courts will push back against these judgements if we fill them with bigots. Bigots don’t want to be held accountable for their actions.

Fortunately, bigots have one of their own to look after them: Professor Bradley Miller. I’m sure he’ll do them proud.

Follow Brian on Twitter!

Leave a Reply