* The controversy continues over the decision by Attorney General Lisa Madigan and Cook County State’s Attorney Anita Alvarez not to defend the state’s ban on gay marriage because they believe it’s unconstitutional. As you already know, lawsuits were recently filed by the ACLU and others against Cook County Clerk David Orr, who issues marriage licenses. The crux of Alvarez’s decision…

Alvarez’s office said it “will admit the salient allegations within the complaint and concede that the equal protection clause of the Illinois Constitution prohibits discrimination in the issuance of marriage licenses based upon sex or sexual orientation.”

“We are in agreement with the plaintiffs that Illinois laws that prohibit same sex marriage are unconstitutional. We believe the plaintiffs are correct in their assertion that the Illinois Constitution upholds marriage equality for same sex couples just as it does for opposite sex couples,” the statement said.

* Since Madigan and Alvarez won’t defend the law over constitutional grounds, there’s some debate on whether anyone else can step forward, and there’s much consternation about the decision itself…

Peter Breen, executive director of the Thomas More Society, a private bar association that represents the Catholic Church, said the group “will be seeking relief from the court,” though he didn’t say exactly what that would be. Some experts have suggested the society could seek the right to defend the ban, though that’s considered a long shot.

“You can’t just say you feel it’s unconstitutional,” said Breen. “This … puts people of the state of Illinois in a difficult place because their elected representatives are not defending their interests. If there is no argument or disagreement, then you’d really have a hollow judgment.”

David Erickson, a former prosecutor and state appellate judge who now teaches at IIT Chicago-Kent College of Law, said it also potentially puts a private bar association in the position of being demonized for stepping forward to defend a state law. Erickson believes the law is unconstitutional but said Breen is right.

“Show me where it says any elected official, especially a prosecutor, can say, `I won’t defend law passed by a legislative body that is my coequal,’” Erickson said. “Only one body can say it’s unconstitutional and that’s the (Illinois) Supreme Court.”

But fellow Kent College professor Douglas Godfrey said Alvarez and Madigan have a professional responsibility to ensure claims have merit, whether they’re filing a lawsuit or defending one, and “in essence … said we don’t think Illinois’ law will stand muster.”

* From the Illinois Constitution…

SECTION 3. OATH OR AFFIRMATION OF OFFICE

Each prospective holder of a State office or other State position created by this Constitution, before taking office, shall take and subscribe to the following oath or affirmation:

“I do solemnly swear (affirm) that I will support the Constitution of the United States, and the Constitution of the State of Illinois, and that I will faithfully discharge the duties of the office of …. to the best of my ability.”

* From Fran Eaton’s latest column…

In 1996, then-state Sen. Peter Fitzgerald successfully ushered through the General Assembly a Defense of Marriage Act. His effort was to draw a line in the sand, to clarify where Illinois stood on same-sex marriages.

Sixteen years later, that law is endangered — something that few could have imagined when it was adopted.

Why is it so ridiculous to contemplate whether other Illinois marriage prohibitions should be tossed to the wind as well? With only sexual orientation bias as the argument against banning same-sex marriage, why should polygamous relationships be banned by the state? If morality is irrelevant, why should there be any marriage bans?

* Rep. David Reis (R-Ste. Marie)…

“The current statutory definition banning gay marriage in Illinois does not violate Illinoisans constitutional rights. In fact, it is just the opposite,” Reis said. “Allowing gay marriage in Illinois would violate our citizens’ religious freedoms by forcing religions to recognize marriages not in accordance with their beliefs.”

Discuss.