Mark Rieber—Senior Attorney, National Legal Research Group
In Doe v. Wasden, No. 1:20-CV-00452-BLW, 2021 WL 4129144 (D. Idaho Sept. 8, 2021), appeal filed (9th Cir. Oct. 1, 2021), the court granted the two offenders' (John Doe and Randall Menges) motion for preliminary injunction challenging the requirement of their registration for the Idaho Sex Offender Registry because of Doe's conviction under a Crime Against Nature statute and Menges's conviction under Idaho's Crime Against Nature statute for engaging in consensual oral or anal sex. The court held that both offenders were likely to prevail on their claims that Idaho was violating their constitutional rights, which included a substantive due process claim, a procedural due process claim, and an equal protection claim. The court found that Idaho could have no legitimate interest in requiring offenders to register as sex offenders for engaging in private, consensual sexual acts and that the offenders had a protected liberty interest in both engaging in private consensual sexual activity and being free from the burdens of sex offender registration. Both offenses at issue occurred before the ruling in Lawrence v. Texas, 539 U.S. 558 (2003). After discussing the principles applicable to the constitutional challenge, the court found that the offenders had demonstrated a likelihood of success on the merits based on Idaho's reliance on the offenders' pre-Lawrence crimes against nature convictions as a basis to require them to register as sex offenders. Both were required to register as sex offenders for life under the Idaho statute.