### I n the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 1 5

- 3440

M ONARCH B EVERAGE C O ., I NC

. , Plaintiff

- Appellant
,

v.

D AVID C OOK , et al.
, Defendant s

- Appell ee s

.

____________________ Appeal from the United States District Court for the Southern District of Indiana

, Indianapolis Division

. 1:13

- cv

- 01674

- SEB

- MJD

— Sarah Evans Barker

, Judge

.

____________________

A RGUED M ARCH 29
, 201 6

— D ECIDED J UNE 30
, 2017

____________________

Before F LAUM , E ASTERBROOK , and S YKES , Circuit Judges

. S YKES , Circuit Judge

. We are again asked to decide whet her a n aspect of Indiana’s alcohol regulation system violates the Equal Protection Clause

. Two years ago we upheld an Indiana law that prohibit s grocery and convenience stores from selli ng chilled beer. See Ind iana Petroleum Marketers & Convenience Store Ass'n v. Cook , 808 F.3d 318 (7th Cir. 2015)

. In this case Monarch Beverage Co mpany challenges a feature of Indiana’s “prohibited interest” law that separates beer and2 No. 15

- 3440

liquor wholesaling by prohibiting beer wholesaler s from hold ing an interest in a liquor

- distribution permit

. See I ND

. C ODE § § 7.1

- 3

- 3

- 19
, 7.1

- 5

- 9

- 3
, 7.1

- 5

- 9

- 6. Monarch contend s that th is component of the p rohibited

- interest law lacks a rational basis

. A district judge reject ed th is argument and upheld the law . W e affirm that judgment

. Indiana ’s policy of separat ing beer and liquor wholesaling survives review for rational ity

. I. Background

Indiana’s alcohol regulatory scheme , like that of many other states, divides the market along two dimensions: three tiers of the distribution chain ( producers, wholesalers, and retailers ) and three kinds of alcohol (beer, liquor, and wine). A permit is required t o do busine ss in any part of this ma rket

. Se e id. §§ 7.1

- 3

- 2

- 1 to

- 5

- 5 (beer producer, wholesaler, and retailer permits); 7.1

- 3

- 7

- 1 to

- 10

- 13 (liquor); 7.1

- 3

- 12

- 1 to

- 15

- 3 (wine). With limited exceptions, Indiana prohibits any
person who holds a permit in one tier of the distribution chain from also holding a n interest in a permit in another
tier. For example, anyone holding an interest in a beer producer’s permit may not also hold an interest in a beer wholesaler’s permit. See i d. § 7.1

- 5

- 9

- 2 . And anyone who holds an interest in a ny kind of retailing permit is generally prohibited from having any interest in a manufacturer’ s or wholesaler’ s permit of any type. Se e id. § 7.1

- 5

- 9

- 10(a)

. ( S mall

- scale brewers and distillers are exempt from this
restriction. See i d. § 7 .1

- 5

- 9

- 10(b).)

In addition to restricting permits across the vertical tiers of the distribution chain , Indiana also restricts the issuance of permits with in the wholesaling tier by type of alcohol. The law allows some wholesaling permits to be combined : a beerNo. 15

- 3440 3

wholesaler can get a permit to wholesale wine ; a liquor wholesaler can also get a permit to wholesale wine

. See i d

. § 7.1

- 3

- 13

- 1. But the p rohibited

- interest law requires the

se parat ion of beer and liquor wholesaling : a b eer wholesal er may not acquir e an interest in a liquor

- wholesal ing permit and vice versa

. 1 See i d. § 7.1

- 5

- 9

- 3
, - 6

. This aspect of Indiana’ s regulatory scheme is apparently unique to the state.

Monarch holds permits to wholesale both beer and wine and would like to expand its business to include liquor

. Indiana doesn’t allow th at combi nation of permits

, so Monarch sued m embers of Indiana’s Alcohol and Tobacco Commission to invalidate the law

. ( T he defendants are sued
in their official capacities, so we ’ll refer to them collectively

as “Indiana

. ”) The suit allege s that th is aspect of th e prohi bited

- interest law facially discriminates against beer whol esalers in violation of the Fourteen th Amend ment’s equal

protection guarantee . U.S. C ONST . amend. XIV, § 1.

On cross

- motions for summary ju dgment
, the district

court rejected Monarch’s challenge and upheld the law . The judge’s decision proceeds along two lines of reason ing. First, she ruled that the equal

- protection c laim failed at the star ting gate because Mon arch could not identify a similarly situated c lass of persons that receive s better treatment under the statute . Second, she applied rational

- basis review and upheld the law a s a rational regulatory measure

. Monarc h
ap peal ed

.

1 Wine wholesalers may distribute brandy, which Indiana otherwise classifies as a type of liquor, see I ND

. C ODE § 7.1

- 1

- 3

- 21, so the separation between beer and liquor wholesaling isn’t completely airtight, see id. § 7.1

- 3

- 13

- 3.4 No. 15

- 3440

Meanwhile , separate litigation against the Commission
is ongoing in state court on a related question testing how the prohibited

- interest law applies to corpora te alcohol distributors with overlapping ownership interests. While Monarch’s appeal in this case has been pending, a Marion County judge issued a rulin g rejecting the Commission’s interpretation of the statute. Spirited Sales, LLC v. Ind iana Alcohol & Tobacco Comm ’ n , No. 49D01

- 1502

- PL

- 5 520 (Marion Cty. S uper

. C t. Aug. 24, 2016). Th e case is now before the Indiana Supreme Court, which heard argument on February 23 , 2017. Th ough the cases involve the same stat utory provisions, th e question here is distinct and seem s

un likely to be affected by the outcome of Spirited Sales , so we proceed to decision.

I I

. Discussion

We review a summary judgment de novo. Lif e Plans, Inc. v. Sec. Life of Denver Ins. Co. , 800 F.3d 343 , 348

– 49 (7th Cir. 2015). Indiana’s prohibited

- interest law d oesn ’ t draw lines based on race or an y other suspect class ification

, it doesn’t burden a fundamental right, a nd it raises no federalism

conc ern s under the Supreme Court’s dormant commerce

clause doctrine

. So Monarch’s equal

- protection challenge triggers only the most l enient form o f judicial review: the law is valid unless it lacks a rational basis

. Fitzgerald v. Racing Ass'n of Cent

. Iowa , 539 U.S. 103 , 107 (2003) ; Indiana Petroleum Marketers , 808 F.3d at 322. T his deferential stan dard of review is a notoriously “heavy legal lift for the cha llenger[].” Indiana Petroleum Marketers , 808 F.3d at 322.

Monarch devote s considerable attention to the origins of Indiana’s prohibit ed

- interest laws , arguing that the “unco ntested historical evidence suggests that the prohibition wasNo. 15

- 3440 5

enacted to protect and promote a patronage system that operated to the benefit of state and lo cal politicians.” That may be true; Indiana doesn’t put much effort into contesting Monarch’s historiography

. But a ny disagreement about the genesis of this law can be le ft unresolved

. T he Supreme Court has made it clear that under rational

- basis review, t he challenger must “negative every conceivable basis” that might support the challenged law, and “ it is entirel y irrel evant

... whether the conc eived reason for the challenged distinction actually motivated the legislature. ” FCC v. Beach Comm c’n s, Inc. , 508 U.S. 307 , 31 4

– 1 5 (1993)

. T he parties also dispute
, this time more vigorously, wheth er certain threshold difficulties doom Monarch’s claim from the start

. Indiana contends that we don’t need to decide whether the prohibited

- interest law has a rational basis because (1) Monarch has not identif ied a similarly situated class of persons that is treated more favorabl y ; and (2) Monarch chose to be a beer whole saler and therefore cannot “complain of unequal treatment compared with those who made a different choice within the same system of limited permits.” These contentions are mistaken ; n o thres hold obstacles to rational

- basis review exist here

. It is of course true, a s the Supreme Court has often said

, that t he Equal Protection Clause “is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr

. , 4 73 U.S. 432, 439 (1985) (citing Plyler v. Doe , 457 U.S. 202, 216 (1982) )

. R el ying entirely on “c lass of one” equal

- p rotection c ases , Indiana
argue s that the prohibited

- interest law is not subject to any judicial review unless Monarch first identif ies a similar ly6 No. 15

- 3440

situated comparator class that receives preferential trea tment under the statute

. Indiana ’s r eliance on the class

- of

- one line of case s is mi splaced. In that kind of equal

- protection litigation
, the plai ntiff doesn’t challeng e a statute or ordinance but argue s instead that a public official ( or group of officials ) has t rea ted him differently than other persons similarly situated for an illegitimate or irrational reason. 2 The differen ce in trea tment can take the form of selective enforcement of a criminal law
, LaBella Winnetka, Inc. v. Vill age of Winnetka , 628 F.3d 937 (7th Cir. 20 10)
, or selective withholding of government benefits or services

, Vill age of Willowbrook v. Olech , 528 U.S. 562 (2000) (failure to provide water service); Harvey v. Town of Merrillville , 649 F.3d 526 (7th Cir. 2011) (ignoring co mplaints about mosquito

- infested pond); Srail v. Vill age of Lisle
, 588 F.3d 940 (7th Cir. 2009) (failure to provide water service); RJB Prop s. , Inc. v. Bd. of Educ. of City of Chi. , 468 F.3d 1005 (7th Cir. 2006) (denial of government contract to provide janitor ial servic es); Vision Church v. Vill age of Long Grove , 468 F.3d 975 (7th Cir . 2006) (denial of special land

- use application);

2 The class

- of

- one label is somewhat misleading because what disti nguishes these cases isn’t necessarily the fact that the plaintiff is the only one harmed. This category include s suits alleging, for example, selective enforcement of a criminal law against fans of a particular sports fra nchise or refusal to provide utility services to an entire neighborhood. The distinguishing element in this kind of equal

- protection claim is that the plaintiff claims that the law’s “improper execution through duly const itut ed agents” is unconstitutional. Vill age of Willowbrook v. Olech , 528 U.S. 562, 564, n.* (2000) (explaining that the complaint “could be read to allege a class of five

, ” but whether it is “ a class of one or of five is of no consequence because we conclude t hat the number of individuals in a class is immaterial for equal protection analysis ”).No. 15

- 3440 7

Smith v. City of Chicago , 457 F.3d 643 (7th Cir. 2006) (failure to reimburse attorney ’ s fees); Racine Charter One, Inc. v. Racine Unified Sc h. Dist. , 424 F.3d 677 (7th Cir. 2005) (failure to bus students).

I n litigation of th at type , if the plaintiff can’t identif y a similarly situated person or group for comparison purposes

, it’s normally unnecessary to take the analysis any further ; the clai m simply fails

. Harvey , 649 F.3d at 532. It ’ s easy to see why. The e qual

- p rotection guarantee is “concerned with governmental classifications that ‘affect some groups of citizens differently than others.’” Engquist v. Or egon Dep't of Agr ic

. , 553 U.S. 591, 601 (2008) (quoting McGowan v. Maryland , 366 U.S. 420, 425 (1961)). I n a class

- of

- one equal

protection case , it may not be clear that the challenged
govern mental action entails any classification at all. Identif ying a similarly situated compar ato r is a way to show that disparate treatment in fact has occurred and sets “a clear standard against which departures, even for a single plai ntiff, [can] be readily assessed.” Id. at 602. In contrast, whe re (as here) the plaintiff challenges a statut e or ordinance that by its terms imposes regulato ry burdens on a specific class of persons ( in this case, beer distributors)
, there’s no need to identify a compar ator; the classifica tion appears in the text of the statute itself

. Indiana also contends that Mona rch can not challenge the prohibited

- interest law because it knew the consequences of becoming a beer wholesaler

— namely, that doing so would put liquor distribution off limits

— and chose to become one
anyway. This argument is hard to square with our decision
in Indiana Petroleum Marketers . There we reviewed Indiana ’s law prohibiting grocery and convenience stores from selling8 No. 15

- 3440

chilled beer. 808 F.3d at 322

– 25. Though no one thought to

men tion it, t h e beer sellers were no doubt aware of th e “no cold beer” r estriction before they applied for a beer dealer’s permit , yet we reviewed the claim on the merits

. Monarch’s situation is no differ ent.

Indiana insists that Indiana Petroleum Marketers is disti nguishable because th e ban on cold

- beer sales wa s “ancillary” to the statutorily defined class , while the law separating beer and liquor distribution is part of the cla ss definition

. It’s not at all clear why this dis tinction (if it is one) should make a ny difference in the analysis

. Indiana cites no case s to support this proposed ancillary /definitional dichotomy. I t ’s not even clear that the restriction Monarch is challenging is defin itional rather than ancillary.

In an effort to illu strate the distinction and explain why it

matters , Indi ana points to laws prohibiting fishing without a license and says that a system in which only fishing license holders may fish can’t be challenged on equal

- protection grounds because th e differ ence in treatment (license holders v. nonlicense holders) precisely defines the cl ass

. We’re not so sure about that conclusion , b ut the analogy is inapt in any

event. Monarch is not challenging Indiana’s law that prohi bits liquor wholesal ing without a permit; i t is challenging the law prohibitin g beer wholesalers from obtaining liquor

w holesal ing permit s . This r estriction is not inherent in the tripartite permitting scheme; after all, wine wholesalers are allowed to have liquor

- wholesaling per mits. The rule Indiana proposes is unsupported and unwork able

. It’s also wholly unjustified. The only demand the E qual

P rotection Clause places on a nonsuspect statutory classific ation is that it be rational. We see no reason to limit applic a-No. 15

- 3440 9

tion of th is basic constitutional requirement as Indiana
proposes

. Moving to the merits of Monarch’s c laim
, Indiana’s prohibited

- interest law comes to us with “a strong presum ption of validity.” Beach Commc ’ ns , 508 U.S. at 314

. Monarch must shoulder the heavy burden “to negative every concei vable basis which might support it.” Id. at 315 (quoting Lehnhausen v. Lake Shore Auto Parts Co. , 410 U.S. 356, 364 (1973) )

. And Indiana does not need to present actual ev idence to support its proffered rationale for the law , which can be “ based on rational speculation unsupported by evidence or empirical data.” Id.

In the district court
, Indiana offered three reasons for its policy choice to separat e b eer and liquor wholesal ing ; it repeats those justifications here

. The f irst i s essentially a temperance ra tionale: Indiana argue s that it has a legitimate interest in discoura ging alcohol consumption, especially the consumption of hard liquor, which has higher alcohol content. The separation of beer and liquor wholesaling rationally serves this inter est by making distribution more expensive, which in turn increas es price s for c onsumers. 3 Second, Indiana points to its interest in maintaining tax

revenue , argu ing that separating the beer

- and liquor

wholesaling m arket s helps to maintain the number o f ind ependent liquor wholesalers that in turn p ay alcohol excise

taxes

. Finally
, Indiana relies on its interest in market stabi l-

3 Indiana also maintain s that the prohibit ed

- interest law helps limit consumption by prohibiting “tied houses”

— conglomerates whose operations extend across the retail
, wholesale , and manufacturing tiers

, and whose size arguably brings market power that can be used to pressure retailers to increase sales.10 No. 15

- 3440

ity
, arguing that market up heaval would ensue if the prohibit ed

- interest law is invalidated.

The first of these reasons is stronger than the others

. I ndeed, Indi ana makes little effort to defend the tax

- revenu e rationale other than to not e that it was endorsed by the dis trict judge

. T he market

- upheaval justification is briefly outlined in Indiana’s brief but not really defended

. 4 So w e ’ll limit our discussion to the temperance rationale. Everyone agrees th at reducing liquor consumption is a legitimate governmental interest. Monarch argues that it’ s ir rational to think that the prohibit ed

- interest law furthers

4 Indiana’s interest in protecting against market upheaval is essentially equivalent to an interest in protecting incu mbent industry. T he Supreme Court has said that “c lassifications serving to protect legitimate expect ation and reliance interests do not deny equal protection of the laws ,” Nordlinger v. Hahn , 505 U.S. 1, 13 (1992), but it’s unclear whether that rule appli es when the expectation and reliance interests were themselves created by the allegedly unconstitutional measure. A few circuits have addressed whether incumbent protectionism is a legitimate state interest. Compare St. Joseph Abbey v. Castille , 712 F.3d 2 15 , 222 ( 5th Cir. 2013) (“[N] either p recedent nor broader principles suggest that mere economic prot ection of a particular industry is a legitimate governmental pu rpose ... .”), Merrifield v. Lockyer , 547 F.3d 978, 991 n.15 (9th Cir. 2008) (“[E]conomic protectionism for its own sake, regardless of its relation to the common good, cannot be said to be in furtherance of a legitimate governmental interest.”), and Craigmiles v. Giles , 312 F.3d 220 , 224 ( 6th Cir. 2002) (“Courts have repeatedly recognized tha t protecting a discrete interest group from economic competition is not a legitimate gover nmental purpose.”), with Powers v. Harris , 379 F.3d 1208 , 1221 ( 10th Cir. 2004) (“[W]hile baseball may be the national pastime of the citizenry, dishing out special e conomic benefits to certain in

- state industries remains the favored pastime of state and local governments.”). W e do

not need to weigh in today.No. 15

- 3440 11

th is interest in any meaningful way

. We disagree. It’s ce rtainly not the most direct way of achiev ing this aim (a tax is the most direct way), but it’s hardly ir rational to think that separating beer and liquor wholesaling is likely to impose higher distribution costs than if beer and liquor wholesaling

were combined . That, in turn, keep s liquor prices hig her, with the salutary corresponding effect of reducing consum ption

. More specifically, rational regulators could believe that Indiana ’s b eer whole salers

— w ith their robust franchise protections and existing distribution infrastructure s (war ehouses, drivers, relation ships with retailers , etc. )

— would vigorously compete with liquor wholesalers if allowed to hold permits to distribute both kinds of alcohol

. 5 R ational regulators might also believe that this increased competition could driv e down liquor prices for consumers and thereby increase consumption

. See, e.g. , Christopher T. Conlon &

5 Monarch argues that Indiana’s franchise protections for beer wholesa lers are irrelevant because the y were not in place when the prohibi ted

interest law s were originally enacted . A s we ’ve explained
, the actual historical impetus for the law is immateri al to rational

- basis review

. Monarch also argues that the franchise protections wouldn’t allow beer wholesalers to enter the liquor market and immediately slash prices . T o illustrate the point
, Monarch notes that beer wholesalers have not

over take n the wine

- wholesaling market even though they are permitted

to also hold wine

- wholesaling permits. But Indiana doesn’t need to prove that in the absence of its law separating beer and liquor wholesa ling, beer whole salers would completely dominate the liquor

- wholesaling market . It’s enough that rati onal regulators could conclude that entry by beer wholesale rs into the liquor

- wholesaling market would lower prices through increased competition. Moreover, i t’s not irrational to think that the franchise protections enjoyed by beer wholesalers would give them at least a slight advantage against incumbent liquor w holesal ers

.12 No. 15

- 3440

Nirupama Rao, The Price of Liquor is Too Damn High: Alcohol Taxation and Market Structure 17 ( Kilts Booth Marketing series, Paper No. 2

- 009 , 2015 ) ( https ://papers.ssrn.com/sol3/ papers.cfm? abstract_id=2610118) (finding that requiring wholesalers to publicly list prices “promote [s] non

competitive pricing behavior among wholesalers, poten tially leading to higher prices”) ; Alexander C. Wagenaar

, et al., Effe cts of Beverage Alcohol Price and Tax Levels on Drinking: A Meta

- analysis of 1003 Estimates from 112 Studies
, 1 0 4 A DDICTION 1 79 ( 2009 ) (concluding that higher prices reduce consumption)

. Monarch ’s response is to argue that there are far more direct and effective ways for Indiana to increase liquor prices and thus reduce consumption

— most obviously, through
taxation

. 6 Monarch insists that the attenuated connection between the prohibited

- interest law and Indiana’s tempe rance objective and the obvious availa bility of a more direct alternative call the rationality of this law into question

. T he Supreme Court has on limited occasion s been willing to infer irrationality from the availability of an alternative policy that more directly and effectively furthers th e go vernment’s asserted interest

. For example, i n U nited S tate s Dep artmen t of Agric ulture v. Moreno , 413 U.S. 528 (1973 )
, the Court invalidated a statute that prohibited households of unrelated individuals from receiving food stamps. T he

6 Indiana is currently among the 10 states with the lowest excise taxes on liquor (excluding Washington, D.C., and the 17 states that sell liquor themselves). Federation of Tax Administrators, State Tax Rates on Distilled Spirits (Jan. 1, 2016)
, http://www.taxadmin.org/assets/docs/Research/ Rates/ liquor .pdf

.No. 15

- 3440 13

government justifi ed the law on fra ud

- prevention grounds. Applying rational

- basis review, the Court rejected that rationale because other statutory provi sions were aimed “specifically at the problems of fraud

, ... [and the] existence of these provisions necessarily casts considerable doubt upon the proposition that the [challenged provision] could rationally have been intended to prevent those very same abuses. ” Id

. at 536

– 37 ; see also City of Cleburne
, 473 U.S. at 446 ( relyi ng on Moreno

, 413 U.S. at 535, and ex plaining that the government “ may not rely on a classification whose rel ationship to an asserted goa l is so attenuated as to render the distinction arbitrary or irrational ” ).

T he S upreme Court’s broader rational

- basis j urispr udence , however, points in the o pposite direction . The Court has repeatedly said that “[t]he fact that other means are better suited to the achievement of governmental ends

... is of no mome nt under rational basis review.” Tuan Anh Nguyen v. INS , 533 U .S. 53, 77 (2001) ; s ee also Gregory v. Ashcroft , 501 U.S. 452, 473 (1991) (“[A] State ‘does not violate the Equal Protection Clause merely because the classific ations m ade by its laws are imperfect

. ’ ” (quoting Mass ach usetts Bd. of Ret. v. Murgia , 427 U.S. 307, 316 (1976) ) ). Against this backdrop, Moreno and City of Cleburne are be tter unde rstood as extraordinary rather than exemplary rational

- basis

cases

. T he Supreme Court has n ever invalidated a n econo mic regulation on rational

- basis re view because a more direct or effective policy alternative was available

. N either have

we , and Monarch has given us no reason to change course. Indiana’s law separating beer and liquor wholesaling is rationally related to the state’s interest in encouraging14 No. 15

- 3440

temperance ; t hat i t serves this purpose indirectly does not make the law irrational.

A FFIRM ED

.No. 15

‐ 3440 15

E ASTERBROOK , Circuit Judge
, concurring in the judgment. I
agree with my colleagues that Indiana’s law is constitutional

‐ ly valid. Monarch says that state law cuts down competition, injuring consumers. But so did the laws in Exxon Corp. v. Governor of Maryland
, 437 U.S. 117 (1978); New Orleans v. Dukes
, 427 U.S. 297 (1976); and The Slaughter

‐ House Cases
, 83 U.S. (16 Wall.) 36 (1873). The Supreme Court has facilitated anticompetitive legislation by creating an exception to anti

‐ trust principles when states curtail competition as part of a regulatory program. See Parker v. Brown
, 317 U.S. 341 (1943), and its successors. State limits on the extent of competition thus have a long pedigree, and regulation of the liquor in

‐ dustry receives an additional boost from §2 of the Twenty

‐ First Amendment.
My colleagues say that Indiana prevails because its law has a rational basis. That’s the standard under the Equal Pro

‐ tection Clause for classifications that do not entail race or other suspect criteria. But like the district judge I do not see any classification. Indiana does not treat any person differ

‐ ently from any other. No one, directly or through a corpora

‐ tion or other business, can have all three alcohol wholesale licenses. That may be sensible or silly, but it does not dis

‐ criminate. Beer wholesalers can get one other license type, just as wine or liquor wholesalers may, but not two others. A beer–liquor license combination is forbidden to everyone by Ind. Code §7.1

‐ 5

‐ 9

‐ 3 and §7.1

‐ 5

‐ 9

‐ 6.

Monarch says that this understanding of discrimination would eliminate rational

‐ basis review of statuses (such as beer wholesaler) that people assume voluntarily, and so it would. My colleagues think this dispositive against Mon

‐ arch’s position, but I do not.No. 15

‐ 3440 16

Monarch’s demand that the liquor

‐ distribution scheme be adequately justified even though it does not treat any person differently from any other person is a substantive

‐ due

‐ process claim in disguise. And the Supreme Court has held that only persons whose “fundamental” rights have been abridged can maintain substantive

‐ due

‐ process claims. See Washington v. Glucksberg
, 521 U.S. 702 (1997). No one would be so bold as to contend that holding three kinds of alcohol wholesale licenses simultaneously is a fundamental right. Litigants should not be allowed to evade the limits on sub

‐ stantive due process by characterizing substantive objections

to state

‐ law rules as equal

‐ protection claims.

Back in 1868, when the Fourteenth Amendment was rati

‐ fied, the sort of argument Monarch presents would not have been seen as either an equal

‐ protection or a substantive

‐ due

‐ process theory. It would have been conceived as a request for relief under the Privileges or Immunities Clause. A bare ma

‐ jority of the Court in Slaughter

‐ House drained that clause of force, but calls to overrule Slaughter

‐ House have not succeed

‐ ed. See McDonald v. Chicago
, 561 U.S. 742 (2010). Recasting a privileges

‐ or

‐ immunities theory as an equal

‐ protection theo

‐ ry has the benefit (for plaintiffs) of evading both Slaughter

‐ House and Glucksberg
, but it lacks a constitutional footing. Perhaps the Supreme Court has given this portfolio to the Equal Protection Clause despite the lack of historical prove

‐

nance and textual support. That’s what my colleagues think. If they are right, judges of the courts of appeals must fall into line. But the Justices consistently write about the Equal Pro

‐ tection Clause as if it operates on discriminatory classifica

‐ tions. Because I don’t see any classification at all in Indiana’s scheme, I would treat Monarch’s contention as a substantiveNo. 15

‐ 3440 17

objection that fails at the threshold under Slaughter

‐ House and Glucksberg

.