When Congress debated the Defense of Marriage Act in 1996, Rep. Henry Hyde, R-Ill., and a strong supporter of the legislation, argued that most ``people don't think that . . . traditional marriage ought to be demeaned or trivialized by same-sex unions.''

The recent television broadcast by the Fox Television Network of the show Who Wants to Marry a Multimillionaire? makes me think that heterosexuals are doing a pretty good job demeaning the institution of marriage, without any help from gays and lesbians.

In fact, the live television broadcast of a contest where at the end of the show one stranger married another raises important questions about the meaning of marriage in our society and why, exactly, we do not allow gays and lesbians to marry.

The Supreme Court has held that marriage is a fundamental right, a right that can be limited only if there is a compelling state interest.

Opponents of same-sex marriage usually make two arguments in support of the position that the state has a compelling interest in prohibiting gays and lesbians from marrying:

That the legal recognition of same-sex marriage would undermine the connection between marriage and reproduction. The inability to reproduce, however, by itself cannot be a compelling reason to deny two individuals the right to marry. If it were, we would be able to prohibit an older or infertile heterosexual couple from marrying. Clearly, there is more to marriage than the opportunity to have children.

That, as Hyde argued, the institution of marriage would be demeaned or trivialized if gays and lesbians were allowed to marry. It is not at all clear, however, that the need to protect the dignity of marriage is a sufficiently compelling state interest that would justify banning a marriage.

If the government, for example, had tried to ban the marriage that took place on Fox, such a ban would have been in all likelihood struck down by the courts as interfering with the rights of the two individuals involved to decide to marry.

What we have, then, is a clear double standard that violates fundamental notions of fairness and equality. Heterosexuals are allowed to marry each other, even if they meet only minutes before the legal ceremony. A gay or lesbian couple is denied the opportunity to marry even if they have been devoted to each other for years.

In fact, when compared with the spectacle on TV of a heterosexual marriage between two strangers, same-sex marriage seems downright dignified. As the Vermont Supreme Court recently stated, state recognition of committed same-sex relationships is nothing more than ``a recognition of our common humanity.''

Of course, if gays and lesbians are allowed to marry, we may one day have the spectacle of a television show called Who Wants to Marry a Gay Multimillionaire? where the contestants and the ``prize'' will all be men (or women). But, perhaps, that's the price we will have to pay for living in a society that believes in human freedom and in applying its laws equally to all.

Carlos A. Ball is an associate professor of law at the University of Illinois.

###

Copyright 2000 Miami Herald