Today my office filed another challenge to Montana’s requirement forcing people with historical sodomy convictions from certain states register as sex offenders.
Sixty years ago, all states criminalized so-called “sodomy”: oral and anal sex. While some states repealed those prohibitions or had them struck down on state constitutional grounds, others kept them. In 1986, the Supreme Court found such laws survived constitutional challenge. Then in 2003, the Supreme Court reversed. In Lawrence v. Texas, the Supreme Court found that its earlier blessing of such laws was wrong and that it was unconstitutional to criminalize having oral or anal sex.
Randall Menges was convicted in Idaho of having gay sex back in 1993. At the time, Idaho required people convicted of sodomy to register as sex offenders. And it still requires it today.
Montana hasn’t enforced its sodomy prohibition since 1997 and even formally repealed it in 2013. And Montana never required people convicted under its old sodomy prohibition to register as sex offenders. But Montana does require anyone with a conviction from another state that is registerable in that state to register if they move to Montana. So despite taking measures to decriminalize gay life in Montana, the state still enforces Idaho’s backwards and homophobic treatment of old sodomy convictions.
Together with Missoula attorney E. Ehret, my office filed suit challenging Montana’s forced inclusion of Mr. Menges on the Montana sex offender registry. The lawsuit asserts that forcing Menges to register violates the Substantive Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and the Right to Privacy under the Montana Constitution.
This is the third case my office has filed challenging state’s attempts to enforce pre-Lawrence sodomy convictions through sex offender registries.