***This blog post discusses a sexual relationship between an 18-year-old employee of a youth foster program and two 16-year-old residents of the program. The power imbalance inherent in such a setting makes that relationship concerning for reasons not addressed in this blog post. The intent of this blog post is not to minimize those concerns; it is, rather, to report on the lingering and painful effects of anti-LGBTQ+ laws.
Last week the Lambda Legal Defense and Education Fund, an ACLU organization, filed an amicus brief in the Ninth Circuit Court of Appeals case, Randall Menges v. Austin Knudsen, No. 21-35370. The underlying district court’s order can be found here.
In 1993, 18-year-old Randall Menges engaged in sexual acts with two 16-year-old boys while employed at a youth foster program in Idaho. He was subsequently convicted under Idaho’s Crimes Against Nature statute. Though Menges’s actions were considered consensual under both Montana and Idaho age-of-consent laws, he was nonetheless convicted because he engaged in anal and oral sex with two persons of the same sex. After seven years of incarceration in Idaho, Menges was released and required to register as a sex offender. He eventually relocated to Montana, where he was also required to register as a sex offender because the Montana Sexual or Violent Offender Registration Act’s definition of a “sexual offender” includes anyone convicted of a “law of another state” for which registration is required.
Idaho is one of few states that still requires persons convicted under pre-Lawrence v. Texas sodomy laws to register as sex offenders. In Lawrence, the Supreme Court held laws that criminalize certain intimate acts between two consenting adults of the same sex violate the Due Process Clause. Though Idaho’s Crimes Against Nature statute is still good law, it can no longer be applied in a way that violates the holding in Lawrence.
The conviction has haunted Menges. Unable to secure steady housing and employment due to his sex offender status left him homeless in Montana. In December 2020, he sought to enjoin the Attorney General from requiring him to register, alleging that the sex offender registration requirement, as applied to him, violates the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and his right to privacy under the Montana Constitution. The U.S. District Court for the District of Montana, Missoula Division, granted Menges’s permanent injunction against the State.
Dismissing a number of procedural challenges, the district court in Menges considered the substance of each of Menges’s claims. At the outset the court noted that “the Due Process Clause and the rights of gay individuals share a tortured past,” but “the arc of the jurisprudence in this area bends in Menegs’s favor.”
First, the court decided that Montana’s registration requirement deprives Menges of a liberty interest because the only reason he is forced to register as a sex offender is for engaging in conduct protected by Lawrence. Recognizing the ambiguity in Lawrence’s level of scrutiny, the court followed Ninth Circuit precedent and applied “heightened scrutiny.” It found that forcing Menges to register as a sex offender does not substantially further an important government interest. Therefore, the registration requirement violates Menges’s substantive due process rights under the Fourteenth Amendment.
Second, turning to Menges’s equal protection argument, the district court questioned the appropriateness of rational basis review, commenting, “if gender-based classifications need survive more than rational basis scrutiny then sexual orientation-based classifications would have to as well.” It nonetheless found that Montana’s registration requirement cannot survive even the lower rational basis review: “Montana has no rational basis for forcing Menges to register as a sexual offender on the basis of a 1994 Idaho conviction for engaging in oral or anal sex with a 16-year-old male when he was 18, but not forcing those to register as a sexual offender who were convicted in Idaho in 1994 at the age of 18 for engaging in vaginal sex with a 16-year-old female.” The requirement, therefore, violates Menges’s right to equal protection as well.
Finally, addressing the merits of Menges’s right to privacy argument, the court found that under the Montana Constitution “persons enjoy an actual expectation of privacy in their engagement in consensual sexual activity among persons of the same sex and society recognizes this expectation of privacy to be reasonable.” The court then applied the appropriate level of review, which is strict scrutiny. Responding to the State’s disappointing arguments, the court felt the need to state the obvious: “Having consensual intimate sexual contact with a person of the same sex does not render someone a public safety threat to the community”; “[i]t does not increase the risk that our State’s children or other vulnerable groups will be victimized”; and “law enforcement has no valid interest” in monitoring such persons. Though Montana’s sexual offender registration statutes serve a compelling government interest, “they are not narrowly tailored to serve those interests to the extent they pull Menges within their grasp.” The law is therefore unconstitutional as applied to Menges.
The Montana Attorney General’s Office has subsequently appealed the district court’s decision to the Ninth Circuit. In its amicus brief, Lambda raises the same arguments accepted by the district court: requiring Menges to register as a sex offender violates Lawrence and consequently violates Menges’s fundamental liberty and right to equal protection.
Litigants have challenged the constitutionality of sodomy laws since at least 1960. In the 1990s, the ACLU and Lambda launched a concerted effort to bring a case to the High Court. That case was, eventually, Lawrence. Nearly twenty years later, the Montana Attorney General’s Office seeks to undermine the Constitution and strong precedent by continuing to torment Menges.
The continued persecution of Menges based solely on his sexual orientation can be seen as part of a larger unprincipled and dubious legal movement to discredit and abrogate substantive due process rights, regardless of how well grounded these rights are in constitutional text, structure, and history. With the current Supreme Court of the United States accepting certiorari on arguments against presumed clear-cut constitutional protections, the Ninth Circuit has an important task ahead of it in reaffirming LGBTQ+ rights via the case of Menges.