Dan Avery

Nearly 20 years after the Supreme Court struck down laws criminalizing consensual same-sex activity, the legacy of sodomy bans is still felt across the United States.

In 1993, then-18-year-old Randall Menges was charged under Idaho’s “crimes against nature” law for having sex with two 16-year-old males. All three worked and lived at Pratt Ranch, a cattle ranch in Gem County that doubled as a live-in foster program for troubled teenagers.

Menges was convicted despite police reports indicating the activity was consensual, and the age of consent in Idaho when a defendant is 18 is 16 years old. After serving seven years in prison, he was placed on probation and required to register as a sex offender.

Today, what Menges did wouldn’t be considered an arrestable offense. The U.S. Supreme Court ruled in 2003 that laws criminalizing consensual sodomy or oral sex were unconstitutional. But Idaho still requires people convicted of sodomy or oral sex before the Lawrence v. Texas ruling to be on the state sex offender registry.

His attorney, Matt Strugar, has challenged a similar statue in Mississippi and is representing Menges and a John Doe in a suit against Idaho’s sodomy ban.

Idaho, South Carolina and Mississippi still require people who were convicted of consensual sodomy before the Supreme Court’s decision in Lawrence to register as sex offenders, Strugar said, even though the court said what they did wasn’t a crime. There are probably hundreds of people in Menges’ predicament, and forcing them to register as sex offenders is a violation of their right to due process and equal protection under the 14th Amendment, he added.

“I’m outraged that in 2021 that we have what is essentially a registry of gay sex,” Strugar said.

Hoping to start a new life, Menges moved to Montana in 2018.

“I love the mountains and taking care of horses,” he said. “And I thought the fewer people I had to deal with the better.”

Even before the Montana Legislature officially repealed the state’s ban on same-sex activity — which the Lawrence ruling declared unconstitutional — in 2013, people convicted under the statute weren’t required to register as sex offenders. But a law passed in 2005 mandates that individuals on a registry in another state must register as sex offenders if they move to Montana.

Menges filed suit in the U.S. District Court for the District of Montana in December, challenging the constitutionality of Montana’s policy. In filings shared with NBC News, he said being on the registry “has damaged dozens of employment opportunities and personal relationships.”

No one believes him about why he has to register as a sex offender, he told NBC News. “If they find out, I lose their friendship,” he said. “Even girlfriends, they don’t buy it.”

The same month he filed his suit, Menges said he was turned away from a homeless shelter in Boise, which he returned to temporarily in 2020.

The U.S. Attorney’s Office for the District of Montana did not return a request for comment on the case. In opening arguments March 30, Montana Assistant Attorney General Hannah Tokerud argued Menges was trying to get a Montana court to weigh in on Idaho law.

According to the Missoulian, she said the case doesn’t hinge on the validity of that statute, but rather “it hinges on whether he is required to register in Idaho.”

“Montana requires Menges to register not because of his criminal offense,” the state wrote in a motion to dismiss in January, “but because Montana gives credit to other states’ determinations about convicted offenders who are required to register.”

“Idaho has determined that Menges must register, and thus, when Menges moved to Montana he was required to register,” the state wrote.

But Strugar said Montana is trying to “pass the buck” to another state while continuing to enforce what he calls an “unlawful” policy.

Menges isn’t seeking to overturn his conviction, he said — the statute of limitations passed a year after his conviction. He just wants to be free of the shadow that’s been cast over his life.

“If someone’s not a molester or a rapist, they shouldn’t be subjected to what I have,” Menges said. “If we can change the law, at least it’ll have been worth it.”

Ultimately he’d like to return to Montana, where the cost of living is lower and he can work with horses.

“I’ve had a passion for horses since I was 6. I’d like to get my equine veterinary nursing degree and take care of them, maybe for a rodeo or for private individuals,” he said. “I just want to go where I want and make the choices I want without this hanging over me.”

The Nebraska Supreme Court has ruled that a lesbian couple can legally adopt a 3-year-old child who has lived with them since birth, overturning a lower court’s decision rejecting their petition.

In July 2020, Dixon County Judge Douglas Luebe said that he had no jurisdiction to grant an adoption to the couple — identified by the American Civil Liberties Union of Nebraska as K.H. and M.V., who asked to keep their names anonymous — because they were listed in their petition as “wife and wife,” according to the Nebraska Supreme Court. In his order, Luebe referred to a version of Black’s Law Dictionary that defined “wife” as “a woman who has a lawful living husband.”

On Friday, the Nebraska high court rejected Luebe’s reasoning, maintaining that state adoption laws allow any married couple to adopt, provided both partners were listed on the adoption application.

Justice William B. Cassel wrote in a unanimous decision that Nebraska adoption law permits any minor child to be adopted by any adult person or persons. “The only caveat contained in the statute is that if the person had ‘a husband or wife,’ the husband or wife had to join in the petition.”

K.H. and M.V, who married in California in 2008, sought to adopt a child born to M.V.’s sister in 2017, according to court documents. The child’s biological mother had already relinquished her rights and the father never sought custody.

They filed for adoption in Dixon County Court in May 2020, but Luebe dismissed their request after calling a special hearing on legal issues raised by their petition, The Star Herald reported, during which he described himself as “old-fashioned.”

He determined the “plain, ordinary language” of Nebraska adoption law would not permit a “wife and wife” to adopt and warned that any other conclusion would transform the court into an “imagination station.”

Luebe did not respond to a request for comment but a spokesperson for the Nebraska Supreme Court told NBC News that Nebraska judges are prohibited from commenting on specific cases.

In opening arguments, the couple’s attorney, Matthew Munderloh, said K.H. and M.V had filled out all the required relinquishments and consent forms and completed a required home study and background checks.

Even if the “plain language” of the law didn’t permit them to adopt the child, Munderloh added, “the Constitution and Obergefell v. Hodges and its progeny require an interpretation that would allow the adoption to proceed.”

Sara Rips, LGBTQIA+ legal and policy counsel for the ACLU of Nebraska, joined in representing K.H. and M.V in their appeal. She was pleased the opinion came from Cassel, a textualist known to value the letter of the law.

She was also surprised at how quickly the ruling came in.

“They heard oral arguments on March 4 and issued an opinion on March 26 — which is unheard of,” Rips said. “Normally you expect two to three months.”

She added that the decision would help strengthen the understanding, both in Nebraska and nationwide, that not only is marriage equality the law of the land “but that all the rights that come with marriage apply equally.”

“They build on top of each other — when you win cases like this, you make it more clear LGBTQ rights are not a passing fad,” Rips said. “The more time that passes, the more cases that build up an institution, the more support you have that institution is not going away. You build that foundation brick by brick, case by case.”

Dixon County is a fairly rural section of northeast Nebraska, with less than 5,700 residents, according to the U.S. Census Bureau, and Rips said her clients didn’t set out to become LGBTQ activists.

“They just want to adopt this child,” she said. “They want to be helpful, but they just want to be parents to a kid. That’s the most Nebaska thing — they don’t want this to be a big deal.”

In 2017, the Nebraska Supreme Court upheld a lower court’s ruling striking down a state policy prohibiting “persons who identify themselves as homosexuals”from becoming foster parents or adopting wards of the state. In his opinion, Justice John Wright slammed the policy as “legally indistinguishable from a sign reading ‘Whites Only’ on the hiring-office door.”

Rips said Friday’s ruling is further proof Nebraska is moving toward being more inclusive and accepting of the LGBTQ community.

“I know I have plenty of years of work ahead of me,” she said, “but we’ll get there.”

Julius’, a beloved New York City bar, has occupied the corner of Waverly Place and West 10th Street in the West Village for nearly 160 years. With little identifying it beyond its name in simple green cursive, the watering hole’s unassuming exterior belies its importance in gay rights history.

Like the Stonewall Inn just a few hundred feet away, Julius’ has been a lifeline to New York’s queer community for decades.

Now its owner is determined to make sure that legacy — and the bar itself— isn’t a casualty of the pandemic, which has devastated New York City nightlife.

Opened as a dry goods store in 1840, the building at 159 West 10th Street was already serving as a saloon by the 1860s. During Prohibition, Julius’ was a speakeasy, allegedly taking its name from the proprietor. Numerous unmarked doors and basement tunnels used for coal delivery allowed for quick escapes if the bar was raided, according to long-time bartenders Tracy O’Neill and Daniel Onzo.

Much of Julius’ remains unchanged from that era, including the long wooden bar with a century’s worth of “scratchitti” carved into it. Jacob Ruppert Brewery beer barrels serve as tables and stools.

Chandeliers dangling overhead are made from wagon wheels of horse-drawn carriages that once delivered ice.

Julius’ had started attracting a gay following at least by the 1950s and, according to local lore, was a popular hangout for midcentury queer luminaries like Tennessee Williams, Truman Capote and Rudolf Nureyev.

But New York State Liquor Authority regulations at that time prohibited serving drinks to “known or suspected homosexuals,” whose very presence was considered disorderly behavior.

“This law was used to prevent the existence of gay bars, so the ones that did exist were under the control of the criminal underworld,” Randy Wicker, a member of the New York chapter of the Mattachine Society, one of the first gay rights groups, said. Either the mob ran the establishment or bar owners would pay for protection to avoid being raided.

“It forced gay people into that underworld,” Wicker, 83, said. “It led to exploitation, blackmail, people being brutalized.”

Wicker said The Mattachine Society wanted to challenge the liquor laws. “We felt it was very similar to how Black people were being denied the right to sit at a lunch counter,” he said.

The idea for a protest, or a “sip-in” as it was eventually called, was inspired by the sit-ins of the civil rights movement: On April 21, 1966, four members of the New York Mattachine chapter walked into a bar, declared they were homosexuals and demanded to be served. Assuming they would be refused, the group planned to file a complaint with the New York City Commission on Human Rights.

Julius’ was actually the fourth place the group hit that day, with Wicker joining Mattachine president Dick Leitsch, vice president Craig Rodwell and member John Timmons. The first bar they visited, the Ukrainian-American Village Restaurant, had been tipped off and closed early.

At Howard Johnson’s, the group declared, “We’re homosexuals and we want to be served.”

“The waitress laughed and said, ‘No problem,’ and took the order,” Wicker said.

It was getting late and they were in danger of losing the reporters who had tagged along. Julius’, it turned out, was the perfect spot for their test case: It had a sizable homosexual following, Wicker said, but the management was determined not to let it become a “gay bar.”

“There had been an entrapment case recently — someone went home with an undercover policeman,” he said. “So they patrolled the bar very strictly. If there were too many men together inside, they’d stop letting men in unless you came with a woman.”

The group walked in and ordered, then Leitsch announced, “We are homosexuals. We are orderly, we intend to remain orderly, and we are asking for service.”

A New York Times photographer captured the moment the bartender put his hand over a glass and stopped making their drinks.

“I think it’s against the law,” he said, according to Wicker.

It was exactly the reaction Mattachine members had hoped for: Publicity from the “sip-in” led to the New York State Supreme Court ruling a year later that simply being gay — or even cruising or kissing — was not indecent behavior.

It didn’t just change liquor regulations, Wicker said. “It helped moved the gay community out of the grasp of the criminal world.”

Within a few years, there were legitimate, independent gay bars. They remained the nexus of gay life for decades, said LGBTQ historian Ken Lustbader, cofounder of the New York City LGBT Historic Sites Project.

“Because of LGBTQ discrimination by authorities, in policy and practice, there were really no other meeting places, no community centers,” he said. “Julius’ has been that space for so many people for so many years.”

And while New York’s gay bar scene has become a shadow of its former size — a victim of assimilation, gentrification and dating apps — Julius’ remained packed most weekends.

“I think there’s a pilgrimage aspect of it, especially for younger people,” Brian Sloan, a filmmaker who lived in the West Village for 20 years, said. “It has historical significance but it’s also a throwback to what gay bars used to be — lively, friendly, unpretentious. That’s harder to find now.”

Julius’ is still popular with celebrities — Lady Gaga, Sarah Jessica Parker, Zachary Quinto and Neil Patrick Harris have all stopped in, according to staff and regulars — and it has appeared in numerous films, including the Oscar-nominated Melissa McCarthy movie “Can You Ever Forgive Me?” and “The Boys in the Band,” both William Friedkin’s 1970 movie and the 2020 Netflix adaptation by Ryan Murphy.

Director John Cameron Mitchell, who first ventured into Julius’ in 1985, calls it his “local bar.”

“It’s dripping with queer history,” he said. “The photos on the wall, the Mattachine sip-in. It really led to the legalization of gay bars in New York.”

In 2008, Mitchell launched a monthly dance party at Julius’ called, appropriately enough, Mattachine.

“[We] wanted to preserve the feeling of our favorite alt-queer bars where you could hear rock, new wave, soul, funk and even slow jams,” he said. “Every month we honored a queer icon, and if they were still alive they would show up.”

Honorees have included the neurologist Oliver Sacks, the punk rock impresario Danny Fields, the Village People’s Randy Jones and Leitsch himself. “We even cursed queer villains like Roy Cohn in absentia,” Mitchell said of Sen. Joseph McCarthy’s chief counsel. Cohn targeted government officials as communists and homosexuals, despite being gay himself.

There’s no denying Julius’ place in history but, by drawing hundreds of revelers late into the night, the Mattachine parties have helped keep the bar from turning into a museum piece.

In 2016, the 50th anniversary of the sip-in, Julius’ was placed on the National Register of Historic Places for its role in “an important early event in the modern gay rights movement.”

Lustbader, who helped get the designation, said it’s mostly honorific and doesn’t protect the business itself, which has been hobbled by coronavirus lockdowns.

The House of Representatives last month passed the Equality Act, a landmark assemblage of LGBTQ anti-discrimination measures that’s gotten strong support from President Joe Biden.

If passed, the law would explicitly provide protections to LGBTQ people across key areas, including employment, housing, education, public accommodations and federally funded programs.

But one provision in the bill could also have a big impact on how the gay community interacts with the American legal system. It would bar attorneys from rejecting prospective jurors simply because they are LGBTQ.

Though there are some classifications that cannot be used as criteria for pre-emptive exclusion during jury selection — including race and gender — sexual orientation and gender identity aren’t among them currently.

That means a litigator can make sure a lesbian plaintiff in a discrimination suit has an all-straight jury. And a prosecutor can pre-emptively strike an LGBTQ juror from a case involving a transgender defendant.

Right now, Section 1862, title 28 of United States Code prohibits exclusion from jury service “on account of race, color, religion, sex, national origin, or economic status.” The Equality Act would amend the statute’s definition of sex to explicitly include sexual orientation and gender identity.

Sasha Buchert, senior attorney at Lambda Legal, an LGBQT rights group, said the provision can “help ensure that LGBTQ people are treated equally under the law.”

“The need for a fair jury selection process is especially important to the transgender community because a disproportionate number of transgender people come into contact with the criminal justice system,” she told NBC News.

Only eight states expressly prohibit peremptory challenges against LGBTQ jurors, according to the Human Rights Campaign. Efforts to pass a federal law have failed at least four times, most recently in 2019.

Without clear guidance, it is “certainly possible” a case on the matter could reach the Supreme Court, Buchert said.

Last week Rep. Mondaire Jones, D-N.Y, introduced the Juror Non-Discrimination Act of 2021, a standalone bill that could make sexual orientation and gender identity protected categories in jury selection even if the Equality Act fails to cross the finish line.

“Juries are supposed to be reflective of the community,” Jones told NBC News. “But we don’t meet that constitutional standard when we allow entire swaths of the community to be kept out.”

The issue was first addressed by the courts in a 2014 pharmaceutical suit involving HIV drugs, when Judge Stephen R. Reinhardt of the 9th Circuit Court of Appeals stopped Abbott Laboratories from dismissing a gay man from the jury.

“Gays and lesbians have been systematically excluded from the most important institutions of self-governance,” Reinhardt wrote in his opinion. “Strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rites and rituals.”

Critics say it’s almost impossible to prove why a potential juror was rejected. If accused of striking someone because of their sexual orientation or gender identity, trial lawyers can always deny doing so and come up with another reason within the law. In the Abbott Laboratories case, attorneys for the company never gave a rationale for their peremptory challenge. It was Reinhardt who decided the reason was because one juror had mentioned his male partner during voir dire.

But the fight is personal for Jones. As a gay Black man and an attorney, he said he’s “distinctly aware of the discrimination that is permissible in the courtroom.”

And he doesn’t want to leave a potential remedy in the hands of the judicial system.

“We cannot rely on the Supreme Court, especially one with a 6-3 conservative majority, to evaluate our rights on a piecemeal basis,” he said.Jones, a former litigator in Westchester County, said if either the Equality Act or the Juror Non-Discrimination Act is enacted, “it will tell members of the LGBTQ community that there’s no place for discrimination in this country, starting with where equal treatment under the law comes from. There’s no other place that’s more American than our judicial system.”

He’s optimistic about the Equality Act’s chances but says there’d be a certain poetry if his first bill to become law was “one that affords dignity to the LGBTQ community.”

“I spent most of my life deathly afraid of people finding out I was gay,” he said. “I never thought someone like me could even run for Congress, so this would be extremely meaningful.”