Judge in Menges registry case rules equal protection for consensual gay sex

By Larry . . . The case of Menges v. Knudsen is a challenge against the attorney general of the state of Montana and various other governmental officials in their official capacities. See Menges v. Knudsen, CV 20–178–M–DLC, United Stated District Court for the District of Montana.  Plaintiff Randall Menges filed suit on December 9, 2020. He asserted that Montana’s registration requirement is unconstitutional as applied to him, in violation of: (1) the Due Process Clause of the Fourteenth Amendment; (2) the Equal Protection Clause of the Fourteenth Amendment; and (3) Article II, § 10 of the Montana Constitution. Menges also moved for a preliminary injunction, requesting that the Court enjoin the defendants, their officers, agents, employees, attorneys, and any person who is in active concert or participation with them from requiring him to register as a sex offender with the Montana Sexual or Violent Offender Registry.

The question before the court was whether Montana can force Menges to register as a sexual offender for his Idaho conviction. Menges is required to register in Montana for having consensual sex in Idaho with a 16-year-old when he was 18 years old back in 1993. Normally that would not have triggered a registration obligation in Idaho, but he engaged in homosexual activities, and Idaho convicted him of crimes against nature, which is on their list of registerable offenses.

He was sentenced to 15 years imprisonment. Upon release, Menges was required under Idaho law, and still would be required, to register as a sexual offender in Idaho if he lived there. At some point, Menges re-located to Montana. Unfortunately, he could not escape the registration requirement because he was required to register under Montana’s Sexual or Violent Offender Registration Act as he was covered by the catchall clause many states have in their law. Under Montana law, a sexual offender is anyone who has been convicted of a sexual offense. Critical to this case, a sexual offense includes “. . . any violation of a law of another state . . . for which the offender was required to register as a sexual offender after an adjudication or conviction.” See Idaho Code § 46-23-502(9)(b).

Menges also filed a lawsuit in Idaho challenging the constitutionality of the underlying statute. In response, Montana requested that the court stay the matter in light of the parallel Idaho federal court action along with various other motions. The Court set a hearing on the motions and provided advance notice of its intent to consolidate the hearing with a trial on the merits. Neither party objected to the consolidation, and the hearing commenced on March 30, 2021. Menges testified, and the Court heard argument from counsel on the legal issues presented. The state’s request to stay this proceeding is the inevitable outcome of him having the parallel lawsuit in Idaho. Fortunately for him, the judge denied their request for a stay.

Montana also contested that Menges had standing to bring the challenge. The court had the following to say in response. “At all stages of litigation, a plaintiff must maintain a personal interest in the dispute. The doctrine of standing generally assesses whether that interest exists at the outset of the case. In order to establish standing, Plaintiffs must show (1) [they have] suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant[s]; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” See Opinion at 9.

The Montana attorney general has vowed an appeal and stated this decision will blow a gaping hole in the registry. We don’t think this is the case because the underlying criminal statute which obligates Menges to register in Idaho, and, accordingly in Montana, does not concern itself with the age of Menges’ sexual partner. As the court noted, “…Menges’ underlying criminal conviction is not for having sexual contact with a minor, it is for having sexual contact with another male. And that is why Montana requires him to register—not for having sexual contact with a minor, but for having sexual contact with another male.” See Opinion at 42.

As noted earlier, Menges asserted several constitutional violations. It is our opinion that the Equal Protection Clause was most significant. The court stated, “In sum, 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. Consequently, that operation of Montana law flouts the guarantee of equal protection and Menges enjoys actual success on the merits of his equal protection claim.” See Opinion at 58.

The Court concluded and NARSOL agrees that “. . . enforcement of Montana’s registration requirement against Menges has inflicted upon him three distinct constitutional violations. This includes his constitutional rights to substantive due process, equal protection, and privacy.” We are gratified with the decision and hope that the United States Court of Appeals for the Ninth Circuit will affirm.

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Larry serves as NARSOL'S treasurer, publisher of the Digest, and co-chair of the conference planning committee. He also hosts the "NARSOL in Action" and "Can They Do That?" webinars and is a regular on the "Registry Matters" podcasts.

  • This topic has 1 reply, 1 voice, and was last updated 4 weeks ago by Tim in WI.
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    • #83532 Reply

      Tim in WI

      Ultimately this decision was reached despite the homosex involved. The homosexuality was not at issue, per say. It was just the comparative necessity of registration involved based in the presumption by the state of MT. To campare laws the process REQUIRES lawyers from both side and a judge as referee. This case the guy, like the cases in Alabama, wasn’t afforded that due process.

    • #83538 Reply


      So is the state of Montana saying that homosexuality is a threat to public safety? Are they making it equivalent to the horrors that happened to Megan Kanka, Jason Wetterling and Jessica Lunsford? The reasons behind why we even have a registry?
      I’m sure the attorneys for the registrant know what they’re doing but it would really be nice to know that an attorney asked these types of questions and make total clowns of the state’s attorneys.
      Consensual sex be it gay or straight with a “minor” (as they call the 16 yr old as if a 2 yr age difference is the end of the world) is NOT the reason why a registry was started in the first place. Period.

      • #83553 Reply

        Tim in WI

        Historically speaking YES homosex was defined by American Society to be deviant behavior. Some lay deviant claim to it as an unnatural act while others do so because of how the bible teaches. Our founders were all from one of these two ilks: Naturalist (agnostics) and evangelical. Obviously man on man given consent is no real threat to social order in of itself, however the impetus toward altering long standing standard definitions is a serious threat to liberty.

        The most important acknowledgement by this court was not the normative association with homosex, rather it was the identification of forced registration regime as punitive in intent concerning the people’s use of the database.

        • #83569 Reply


          Yes, I know that. And I think many people know that about laws regarding homosexuality. However, making it an offense requiring to register as a “threat to public safety” is going a bit too far. Religious beliefs or not.
          Homosexuality or any other consensual sexual relationship (the “minor” being shy of the legal age of consent) was NOT the reason the registry was started in the first place. The states either need to stick to what the registry was meant for or sh*t can the whole thing once and for all.
          When even skinny dipping can land people on the registry, there’s a serious problem.

          • #83588 Reply

            Tim in WI

            I agree there is something wrong and that something is the people’s use of the database to render human subservience. A database is property with similarities to the effect incarceration. A property which upon a citizens inclusion limits the citizens access to other properties even for perfectly lawful behaviors or activity.
            A registered man walking his dog in an Illinois park is unlawful and punishable by felony, as example. In other words plain affirmative restraint. Obviously, hat was always the retributive intent as residence restrictions flowed from the database itself. Free men are paid to maintain machines.

          • #83802 Reply


            Actually, skinny dipping can land you on the sex offender registry. The charge would be indecent exposure, which is a registrationable offense.

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