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Justice Bradley Miller

A critic of gay marriage has been promoted to Ontario's highest court – the third such judge chosen by the Conservative government since December for the Ontario Court of Appeal.

The Conservative government chose Justice Bradley Miller, a former University of Western Ontario law professor, for the Ontario Court of Appeal after he spent just six months on the province's Superior Court. During that time, he has written no published rulings by which to appraise his abilities as a judge, according to a Globe and Mail search of the legal websites CanLII and Quicklaw.

Justice Minister Peter MacKay has not publicly announced Justice Miller's appointment, but the appeal court confirmed for The Globe it happened last Friday.

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Justice Miller is the court's second adherent of a legal doctrine known as "originalism," a view associated with conservative judges Antonin Scalia and Clarence Thomas of the U.S. Supreme Court, which says constitutions should be interpreted according to how their founders intended. The appeal court's other supporter of originalism is Justice Grant Huscroft, another Western law professor appointed directly to the appeal court last December, at the same time that Justice Miller was named to the Superior Court.

Both Justice Miller and Justice Huscroft have made the originalist argument in their published work that the 1982 Charter of Rights and Freedoms did not explicitly protect gays and lesbians from discrimination, and that therefore the Supreme Court of Canada was wrong to have read such protection into the document. When he was in opposition, Prime Minister Stephen Harper made that same argument. The Supreme Court has expressly rejected such use of originalism in favour of the "living tree" view – that the law changes with the times.

There are 21 judges on the court of appeal; they usually sit in panels of three. Another judge appointed to the appeal court at the same time as Justice Huscroft in December – David Brown – represented a traditional-family group arguing against gay marriage in the 2003 case in which the Ontario Court of Appeal legalized gay marriage in the province. (Justice Miller also represented a religious group arguing against gay marriage in that case.)

Grégoire Webber, the Canada Research Chair in public law and philosophy of law at Queen's University, co-edited a book of essays with Justices Huscroft and Miller. "For a government not unjustifiably sometimes said to be anti-intellectual, it is noteworthy that it has appointed two academics to the Ontario Court of Appeal," he said.

But some observers say leading academics who support the protection of civil liberties using the Charter of Rights and Freedoms have no chance at being appointed. "It is crazy that commitment to values that are central to the Canadian legal order is considered a disqualification for judicial appointment by this government," said David Dyzenhaus, a University of Toronto professor of law and philosophy who is currently the Arthur Goodhart visiting professor in legal science at Cambridge University in England.

Clarissa Lamb, a spokesperson for Mr. MacKay, said in an e-mail: ‎"All judicial appointments are based on merit and legal excellence and on recommendations made by the 17 Judicial Advisory Committees across Canada."

In published essays when he was still a professor, Justice Miller said gay marriage in Canada is a "new orthodoxy," and anyone who disagrees is treated as a bigot. He also said the "only parental defence" to public school curricula full of positive references to same-sex marriage is to pull children out of the public system.

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He also wrote in his conclusion to a 2011 essay on gay marriage: "To the extent that the conception of marriage that is reflected in the law is morally defective, it makes it more difficult for people to understand genuine marriage and to develop the dispositions and character necessary to participate in it."

In the sentence immediately before the conclusion, he lumped gay marriage in with polygamy: It "only makes sense that policies that tend to undermine the norms of marital permanence and exclusivity – as same-sex marriage, polygamous marriage, and polyamorous unions arguably do – ought to be avoided."

Prof. Dyzenhaus is familiar with Justice Miller's writings. "The real argument is that same-sex sexual relationships are unnatural, i.e., immoral or sinful," he said. He said the meaning of "morally defective" in Justice Miller's essay is no different than in its ordinary daily usage.

Prof. Webber disagreed with Prof. Dyzenhaus's interpretation.

"I think the passage unobjectionable and easily agreed to by all: We need the right conception of marriage to provide each one of us with the right choices. Those who fought for same-sex marriage employed this very argument."

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