He’s on Montana’s Sex Offender Registry for Consensual Gay Sex—and the State Wants To Keep Him There

Convicted under unconstitutional sodomy laws, they’re still fighting for freedom. In 2003, the U.S. Supreme Court ruled that laws criminalizing oral sex and sodomy were unconstitutional. For hundreds of years, these laws had been used to prosecute people for same-sex sexual activity and, less frequently, to prosecute unmarried people for having sex. With the advent of sex offender registries, sodomy convictions could come with not just imprisonment for a discrete time but a lifetime of stigma and foreclosed opportunity. But that’s all behind us now, right?

No—as Randall Menges’ story makes clear. Montana is fighting to keep Menges on the sex offender registry for gay sexual activity he engaged in nearly 30 years ago.

Now 45, Menges was convicted as a teenager for having consensual sex with two other male teens. Menges was then 18, and they were both 16 (which was then the age of consent in Idaho, where the acts took place). Idaho prosecutors charged him with “crimes against nature,” which the state treated as a ban on anal and oral sex. Menges wound up serving seven years in prison for it. Upon release, he was added to Idaho’s sex offender registry and, when he moved to Montana, to that state’s registry—a designation that has cost him work and friends, he told The New York Times.

Finally, last week, a federal court declared that Menges’ punishment is unfair. Menges was on the registry “because he was convicted of engaging in oral or anal sex with a person of the same sex, not because he had oral or anal sex with a minor or because such contact was nonconsensual,” wrote U.S. District Judge Dana Christensen. “Under Montana’s constitutional scheme, having consensual intimate sexual contact with a person of the same sex does not render someone a public safety threat to the community. Law enforcement has no valid interest in keeping track of such persons’ whereabouts.”

“In sum, Montana has no rational basis for forcing Menges to register as a sexual offender,” wrote Christensen.

“It should not have required a lawsuit to enforce the Supreme Court’s command from 18 years ago,” said Menges in a statement. “But I’m happy that it’s over.”

The judge ruled that by this upcoming Friday, “The state of Montana must: Remove Menges from Montana’s Sexual or Violent Offender Registry; expunge all records indicating Menges was ever required to register; and alert all agencies, such as courts, police departments, sheriff’s departments and the FBI, that Menges’ registration information is no longer valid,” the Daily Montanan reports.

But Montana Attorney General Austin Knudsen’s office said he will appeal the court’s ruling. A spokesperson for Knudsen said it “weakens our state’s sex-offender registry law, making kids and families less safe.”

Yes, in the year 2021, Montana is effectively contending that failing to brand someone who had consensual gay sex as a sex offender is a danger to families and kids.

Of course, prosecutors say that this is simply about process. Since Menges is also challenging Idaho’s requirement that people with sodomy convictions register as sex offenders, and that case is ongoing, he has no right to challenge his registration in Montana, state prosecutors argued.

“Montana hasn’t enforced its sodomy prohibition since 1997 and even formally repealed it in 2013,” notes Menges’ lawyer Matthew Strugar. “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”

Menges isn’t alone in his struggle. His case “comes amid a larger struggle over laws that have historically been used to discriminate against L.G.B.T.Q. people,” notes the Times:

For now, the Montana ruling applies only to Menges’ Montana registration. But it could have broader implications. “The decision suggests that states cannot require sex-offender registration based on convictions under outdated and now unconstitutional ‘crimes against nature’ laws,” University of Montana law professor Anthony Johnstone told the Times.

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FREE MINDS

Are we in a new age of cultism—or a new cult panic? Jesse Walker explores this question in an excellent feature from the June 2021 issue of Reason:

America has always been haunted by cults, but the hauntings are more acute at some times than others. “From the 1970s through the 1990s, from Jonestown to Heaven’s Gate, frightening fringe groups and their charismatic leaders seemed like an essential element of the American religious landscape,” Ross Douthat wrote in The New York Times in 2014. “Yet we don’t hear nearly as much about them anymore, and it isn’t just that the media have moved on. Some strange experiments have aged into respectability, some sinister ones still flourish, but over all the cult phenomenon feels increasingly antique, like lava lamps and bell bottoms.”

Seven years later, it is Douthat’s diagnosis that feels antique. Cults themselves may or may not be more common now than in 2014, but we’re awash in a flood of cult stories, cult rumors, and cult rhetoric. It’s still “nothing like where things were in the early ’90s,” says J. Gordon Melton, a professor of American religious history at Baylor. But “dislike of cults has never really gone away…and we’ve seen a heightening of that over the last couple of years.”

Read the whole thing here.

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FREE MARKETS

The interesting part of this is less the merger part and more that as part of this deal, AT&T would be breaking itself up and spinning off all of its media properties into a new company. That seems like an admission that its strategy of combining telecom + media didn’t work. https://t.co/RuJIlWQYHd

— James Surowiecki (@JamesSurowiecki) May 17, 2021

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QUICK HITS

• Americans don’t want schools to punish off-campus speech.

• The New York Times’ Ben Smith explores “how hundreds of ‘Jeopardy!’ contestants talked themselves into a baseless conspiracy theory — and won’t be talked out of it.”

• Police corruption in Baton Rouge, Louisiana, is leading to more than 700 drug charges being dismissed.

• Sally Satel criticizes the new menthol cigarette ban, warning that “attempts to improve public health by bans of widely used products – and addictive products, in particular – have a bad track record. The war on drugs and alcohol prohibition, which drove users into the arms of criminal dealers and unsafe markets with their riskier substances, stand as object lessons.”

• Former President Donald Trump continues to spread crazy conspiracy theories about voter fraud:

Wow. This is unhinged. I’m literally looking at our voter registration database on my other screen. Right now.

We can’t indulge these insane lies any longer. As a party. As a state. As a country.

This is as readily falsifiable as 2+2=5. If we don’t call this out… pic.twitter.com/5tDy1wsZg6

— Stephen Richer—Maricopa Cnty Recorder (prsnl acct) (@stephen_richer) May 15, 2021

• Mastercard’s new porn rules hurt sex workers:

your reminder that this is what the abolitionists want / scare politicians and policy makers into agreeing to, making it next to impossible to be compliant so that sex workers are pushed off yet another means of making a living https://t.co/EI8VMmZbX4

— ???? Ivy Astrix (@IvyAstrix) May 16, 2021