Category Archives: Constitutional Law

Polygamy: Not as Illegal as Before?

One of the most recognized shows on TLC is Sister Wives, the story of a polygamist family that lives in Nevada. The head of the family, Kody Brown, has four wives and seventeen children, and states that they chose to film the show in order to educate the public about polygamist families. However, and rather unsurprisingly, the family has come  under fire for their practices and the show has led them to be investigated for criminal charges regarding polygamy.

Kody Brown and his four wives

Kody Brown and his four wives

Kody states that he is doing nothing illegal, as only his first marriage to Meri Brown is a legally recognized marital union, and the other three wives are spiritual unions. However, given the family has been living as a single unit for 16 years and that all four wives have contributed children, there is a possibility that these “spiritual unions” could in fact be considered common-law marriages.

This case was brought before the U.S. District Court and yesterday Judge Clark Waddoups struck down part of Utah’s law against polygamy. While having multiple marriages remains illegal, Judge Waddoups declared that cohabitation was not in itself illegal. The law was created 134 years ago, and according to the judge has not kept up with the evolving rights of religions minorities. Judge Waddoups stated that religious cohabitation (living together as a religious obligation in an intimate relationship resembling marriage) was not a right that the government could take away, as long as the participants did not create fraudulent marriages by claiming to be legally married.

Part of the judges extremely logical reasoning stated that while the law prosecuted persons who practiced religious cohabitation, it left adulterous cohabitation alone. This meant that the state only pursued criminal prosecution when it was a matter of religion, which threatened the First Amendment rights of legal minorities. It did not use the law to prosecute adulterers and other  lecherous individuals who cohabit in multiple relationships without their legal partner knowing.

Why is this important?

  • It’s  a little self explanatory. Previously, no cohabitation was allowed for the purposes of multiple marriages, religious or otherwise. Judge Waddoups has decided that as long as people don’t attempt to have multiple legally recognized marriages, that cohabitation and calling each other husband and wife is a religious right. This means that the close to 40,000 fundamentalist Mormons, along with other religious sects that believe in polygamy, can continue to have multiple wives in a religious sense and cohabit with all of them.

Will this be controversial? 

  • In a word, yes.  Women who have left polygamous marriages state it only leads to abuse of both women and the children, leaving everyone hurt. Others view this as a step in the right direction, saying that it supports one of our most fundamental rights, the freedom of religion. Another point proponents of the decision make is that a more open atmosphere about polygamy will encourage people to report abuse, making the situation more safe for practitioners.

Information found in this post was largely from this SCOTUS blog post and this TIME article.


Cheever v Kansas and the Fifth Amendment

Meth is a hell of a drug. It’ll make you do some crazy things. Like kill the local sheriff, and then try to take on the sheriff’s officers, and then the local SWAT team.


He can’t handle that microphone, let alone a SWAT team.

This is exactly what went down in the home of Scott Cheever in 2005 when Sheriff Matt Samuels was called to his home to investigate reported drug activity. Earlier that day, Cheever had already taken a dose of meth sufficient to kill the average non-user, and was extremely paranoid, perched at the top of a hidden staircase. When Samuels went to retrieve him, Cheever shot Samuels and proceeded to attack anyone that tried to apprehend him.

Before he was tried at the state level, the Kansas Supreme Court declared the death penalty to be unconstitutional. This caused the states charges to be dropped, so that he could be charged at the federal level and the prosecution could still seek the death penalty. During trial preparations, he submitted a notice that he would be using expert testimony about his mental state at the time of the murders. The prosecutors responded with an order for Cheever to undergo a mental evaluation by a psychiatrist of the state’s choosing, which is common and lawful procedure when the case has to do with an altered mental state.

However, Kansas’ death penalty was found lawful, and federal charges were dropped in order for the case to return to the state level. At that time, Cheever changed his plea to voluntary intoxication, which in Kansas means he no longer needs a psychiatric evaluation. However, even though he was pleading voluntary intoxication and wanted the state’s psychiatric evidence thrown out, he proceeded to include his own expert psychiatric opinion, which included the man the state had hired to testify against him.

that is not fair

The presumptive reaction of the prosecution.

Ultimately, the judge allowed the prosecution to use the psychiatrist themselves, based on the fact that he was already in the trial and the prosecution would have been allowed to cross-examine him anyway. He said that Cheever had anti-social personality disorder and considered himself an “outlaw,” which surprisingly didn’t lend itself to his cause. This testimony helped lead to the result of a conviction and the death penalty for Cheever.

Cheever did not appreciate his meeting with the psychiatrist being brought public and appealed the decision based on the argument that his Fifth Amendment right to avoid self-incrimination had been violated.

The main question in this case involved whether or not he had waived his Fifth Amendment rights by telling the prosecution he intended to use expert testimony. While opinions vary overall, the Supreme Court’s apparently does not. Their opinion, released today, revealed that in an unanimous decision they decided to let the evidence from the psychiatrist stand. They cited Buchanan v. Kentucky, and stated that as long as under Kansas law voluntary intoxication is not a mental disease/defect, then the expert testimony is fair game. According to Justice Sonia Sotomayor, allowing the defendant their Fifth  Amendment  rights doesn’t mean they can present a “one-sided and potentially inaccurate view of his mental state at the time of the crime.”

In summary:

  • What this boils down to is that the prosecution used a mental examination in their case that had been court ordered. The fact that this examination wasn’t exactly consented to by Cheever is where they made the argument that it violated the Fifth Amendment, because they claimed he was compelled to have it.
  • The Supreme Court decided that if the defense in a case that argues the defendant’s mental state affected his ability to commit an offense and introduces their own psychiatric evidence, then the prosecution is able to present psychiatric evidence, in order to avoid an unbalance, inaccurate trial. They cited precedence with Buchanan v Kentucky.

Why is this important, you ask? Well, let me tell you:

  1. The Fifth Amendment is one of the most well known amendments of the Constitution, but also one of the most misunderstood. While almost everyone has heard the phrase, “I plead the fifth!” that doesn’t necessarily mean they understand what it entails. In a case like this, even though Cheever never waived his Fifth Amendment right, by basing his case on his mental status and introducing psychiatric evidence, he opened the door for the government to follow suit.
  2. While the Supreme Court’s decision clarified limitations on the Fifth Amendment, it also was very specific on the cases to which these limitations apply. Only cases in which the defendant introduces psychiatric evidence, in which the defense is centered around mental status, and if the testimonial is used for limited rebuttal purposes is it ok. Other than these specific circumstances, prosecutors are not allowed to use mental examinations which have been compelled by the court.

Cheever’s case has been sent back down to the lower courts to keep on keepin’ on in the judicial process.

Information from this post was from:

The Opinion of the Supreme Court, this post written by William Hornbeck, and this article from the LA Times