                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                      ____________________
No. 15-3440
MONARCH BEVERAGE CO., INC.,
                                                 Plaintiff-Appellant,

                                 v.

DAVID COOK, et al.,
                                              Defendants-Appellees.
                      ____________________

         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.
                      ____________________

      ARGUED MARCH 29, 2016 — DECIDED JUNE 30, 2017
                      ____________________

   Before FLAUM, EASTERBROOK, and SYKES, Circuit Judges.
    SYKES, Circuit Judge. We are again asked to decide wheth-
er an aspect of Indiana’s alcohol regulation system violates
the Equal Protection Clause. Two years ago we upheld an
Indiana law that prohibits grocery and convenience stores
from selling chilled beer. See Indiana Petroleum Marketers &
Convenience Store Ass'n v. Cook, 808 F.3d 318 (7th Cir. 2015). In
this case Monarch Beverage Company challenges a feature
of Indiana’s “prohibited interest” law that separates beer and
2                                                    No. 15-3440

liquor wholesaling by prohibiting beer wholesalers from
holding an interest in a liquor-distribution permit. See IND.
CODE §§ 7.1-3-3-19, 7.1-5-9-3, 7.1-5-9-6. Monarch contends
that this component of the prohibited-interest law lacks a
rational basis. A district judge rejected this argument and
upheld the law. We affirm that judgment. Indiana’s policy of
separating beer and liquor wholesaling survives review for
rationality.
                         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 to do business in any part of this mar-
ket. See 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 an 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 id. § 7.1-5-9-2. And anyone who
holds an interest in any kind of retailing permit is generally
prohibited from having any interest in a manufacturer’s or
wholesaler’s permit of any type. See id. § 7.1-5-9-10(a).
(Small-scale brewers and distillers are exempt from this
restriction. See id. § 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 within the wholesaling tier by type of alcohol. The
law allows some wholesaling permits to be combined: a beer
No. 15-3440                                                                3

wholesaler can get a permit to wholesale wine; a liquor
wholesaler can also get a permit to wholesale wine. See id.
§ 7.1-3-13-1. But the prohibited-interest law requires the
separation of beer and liquor wholesaling: a beer wholesaler
may not acquire an interest in a liquor-wholesaling permit
and vice versa. 1 See id. § 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 that combination of permits, so
Monarch sued members of Indiana’s Alcohol and Tobacco
Commission to invalidate the law. (The defendants are sued
in their official capacities, so we’ll refer to them collectively
as “Indiana.”) The suit alleges that this aspect of the prohib-
ited-interest law facially discriminates against beer whole-
salers in violation of the Fourteenth Amendment’s equal-
protection guarantee. U.S. CONST. amend. XIV, § 1.
    On cross-motions for summary judgment, the district
court rejected Monarch’s challenge and upheld the law. The
judge’s decision proceeds along two lines of reasoning. First,
she ruled that the equal-protection claim failed at the start-
ing gate because Monarch could not identify a similarly
situated class of persons that receives better treatment under
the statute. Second, she applied rational-basis review and
upheld the law as a rational regulatory measure. Monarch
appealed.


1 Wine wholesalers may distribute brandy, which Indiana otherwise
classifies as a type of liquor, see IND. CODE § 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 corporate alcohol
distributors with overlapping ownership interests. While
Monarch’s appeal in this case has been pending, a Marion
County judge issued a ruling rejecting the Commission’s
interpretation of the statute. Spirited Sales, LLC v. Indiana
Alcohol & Tobacco Comm’n, No. 49D01-1502-PL-5520 (Marion
Cty. Super. Ct. Aug. 24, 2016). The case is now before the
Indiana Supreme Court, which heard argument on
February 23, 2017. Though the cases involve the same statu-
tory provisions, the question here is distinct and seems
unlikely to be affected by the outcome of Spirited Sales, so we
proceed to decision.
                        II. Discussion
    We review a summary judgment de novo. Life Plans, Inc.
v. Sec. Life of Denver Ins. Co., 800 F.3d 343, 348–49 (7th Cir.
2015). Indiana’s prohibited-interest law doesn’t draw lines
based on race or any other suspect classification, it doesn’t
burden a fundamental right, and it raises no federalism
concerns under the Supreme Court’s dormant commerce-
clause doctrine. So Monarch’s equal-protection challenge
triggers only the most lenient form of 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. This deferential stand-
ard of review is a notoriously “heavy legal lift for the chal-
lenger[].” Indiana Petroleum Marketers, 808 F.3d at 322.
    Monarch devotes considerable attention to the origins of
Indiana’s prohibited-interest laws, arguing that the “uncon-
tested historical evidence suggests that the prohibition was
No. 15-3440                                                   5

enacted to protect and promote a patronage system that
operated to the benefit of state and local politicians.” That
may be true; Indiana doesn’t put much effort into contesting
Monarch’s historiography. But any disagreement about the
genesis of this law can be left unresolved. The Supreme
Court has made it clear that under rational-basis review, the
challenger must “negative every conceivable basis” that
might support the challenged law, and “it is entirely irrele-
vant … whether the conceived reason for the challenged
distinction actually motivated the legislature.” FCC v. Beach
Commc’ns, Inc., 508 U.S. 307, 314–15 (1993).
    The parties also dispute, this time more vigorously,
whether 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 identified a similarly situated
class of persons that is treated more favorably; and
(2) Monarch chose to be a beer wholesaler 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; no thresh-
old obstacles to rational-basis review exist here.
   It is of course true, as the Supreme Court has often said,
that the Equal Protection Clause “is essentially a direction
that all persons similarly situated should be treated alike.”
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439
(1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). Relying
entirely on “class of one” equal-protection cases, Indiana
argues that the prohibited-interest law is not subject to any
judicial review unless Monarch first identifies a similarly
6                                                             No. 15-3440

situated comparator class that receives preferential treat-
ment under the statute.
    Indiana’s reliance on the class-of-one line of cases is mis-
placed. In that kind of equal-protection litigation, the plain-
tiff doesn’t challenge a statute or ordinance but argues
instead that a public official (or group of officials) has treat-
ed him differently than other persons similarly situated for
an illegitimate or irrational reason. 2 The difference in treat-
ment can take the form of selective enforcement of a criminal
law, LaBella Winnetka, Inc. v. Village of Winnetka, 628 F.3d 937
(7th Cir. 2010), or selective withholding of government
benefits or services, Village 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 com-
plaints about mosquito-infested pond); Srail v. Village of Lisle,
588 F.3d 940 (7th Cir. 2009) (failure to provide water service);
RJB Props., Inc. v. Bd. of Educ. of City of Chi., 468 F.3d 1005 (7th
Cir. 2006) (denial of government contract to provide janitori-
al services); Vision Church v. Village 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 distin-
guishes these cases isn’t necessarily the fact that the plaintiff is the only
one harmed. This category includes suits alleging, for example, selective
enforcement of a criminal law against fans of a particular sports fran-
chise 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 consti-
tuted agents” is unconstitutional. Village 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 that 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 Sch. Dist., 424 F.3d 677 (7th Cir. 2005) (failure to bus
students).
     In litigation of that type, if the plaintiff can’t identify a
similarly situated person or group for comparison purposes,
it’s normally unnecessary to take the analysis any further;
the claim simply fails. Harvey, 649 F.3d at 532. It’s easy to see
why. The equal-protection guarantee is “concerned with
governmental classifications that ‘affect some groups of
citizens differently than others.’” Engquist v. Oregon Dep't of
Agric., 553 U.S. 591, 601 (2008) (quoting McGowan v.
Maryland, 366 U.S. 420, 425 (1961)). In a class-of-one equal-
protection case, it may not be clear that the challenged
governmental action entails any classification at all. Identify-
ing a similarly situated comparator is a way to show that
disparate treatment in fact has occurred and sets “a clear
standard against which departures, even for a single plain-
tiff, [can] be readily assessed.” Id. at 602. In contrast, where
(as here) the plaintiff challenges a statute or ordinance that
by its terms imposes regulatory burdens on a specific class of
persons (in this case, beer distributors), there’s no need to
identify a comparator; the classification appears in the text of
the statute itself.
    Indiana also contends that Monarch cannot 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 selling
8                                                    No. 15-3440

chilled beer. 808 F.3d at 322–25. Though no one thought to
mention it, the beer sellers were no doubt aware of the “no
cold beer” restriction before they applied for a beer dealer’s
permit, yet we reviewed the claim on the merits. Monarch’s
situation is no different.
    Indiana insists that Indiana Petroleum Marketers is distin-
guishable because the ban on cold-beer sales was “ancillary”
to the statutorily defined class, while the law separating beer
and liquor distribution is part of the class definition. It’s not
at all clear why this distinction (if it is one) should make any
difference in the analysis. Indiana cites no cases to support
this proposed ancillary/definitional dichotomy. It’s not even
clear that the restriction Monarch is challenging is defini-
tional rather than ancillary.
     In an effort to illustrate the distinction and explain why it
matters, Indiana 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 the difference in treatment (license holders
v. nonlicense holders) precisely defines the class. We’re not
so sure about that conclusion, but the analogy is inapt in any
event. Monarch is not challenging Indiana’s law that prohib-
its liquor wholesaling without a permit; it is challenging the
law prohibiting beer wholesalers from obtaining liquor-
wholesaling permits. This restriction is not inherent in the
tripartite permitting scheme; after all, wine wholesalers are
allowed to have liquor-wholesaling permits.
    The rule Indiana proposes is unsupported and unworka-
ble. It’s also wholly unjustified. The only demand the Equal-
Protection Clause places on a nonsuspect statutory classifica-
tion is that it be rational. We see no reason to limit applica-
No. 15-3440                                                           9

tion of this basic constitutional requirement as Indiana
proposes.
    Moving to the merits of Monarch’s claim, Indiana’s
prohibited-interest law comes to us with “a strong presump-
tion of validity.” Beach Commc’ns, 508 U.S. at 314. Monarch
must shoulder the heavy burden “to negative every conceiv-
able 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 evi-
dence 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 separate beer and liquor wholesaling; it
repeats those justifications here. The first is essentially a
temperance rationale: Indiana argues that it has a legitimate
interest in discouraging alcohol consumption, especially the
consumption of hard liquor, which has higher alcohol
content. The separation of beer and liquor wholesaling
rationally serves this interest by making distribution more
expensive, which in turn increases prices for consumers.3
Second, Indiana points to its interest in maintaining tax
revenue, arguing that separating the beer- and liquor-
wholesaling markets helps to maintain the number of inde-
pendent liquor wholesalers that in turn pay alcohol excise
taxes. Finally, Indiana relies on its interest in market stabil-

3 Indiana also maintains that the prohibited-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 upheaval would ensue if the
prohibited-interest law is invalidated.
    The first of these reasons is stronger than the others. In-
deed, Indiana makes little effort to defend the tax-revenue
rationale other than to note that it was endorsed by the
district judge. The market-upheaval justification is briefly
outlined in Indiana’s brief but not really defended. 4 So we’ll
limit our discussion to the temperance rationale.
    Everyone agrees that reducing liquor consumption is a
legitimate governmental interest. Monarch argues that it’s
irrational to think that the prohibited-interest law furthers


4 Indiana’s interest in protecting against market upheaval is essentially
equivalent to an interest in protecting incumbent industry. The Supreme
Court has said that “classifications serving to protect legitimate expecta-
tion 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
applies 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 215, 222 (5th Cir. 2013)
(“[N]either precedent nor broader principles suggest that mere economic
protection of a particular industry is a legitimate governmental pur-
pose … .”), 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 that protecting a discrete
interest group from economic competition is not a legitimate govern-
mental 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 economic benefits to certain in-state industries
remains the favored pastime of state and local governments.”). We do
not need to weigh in today.
No. 15-3440                                                            11

this interest in any meaningful way. We disagree. It’s cer-
tainly not the most direct way of achieving this aim (a tax is
the most direct way), but it’s hardly irrational 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, keeps liquor prices higher,
with the salutary corresponding effect of reducing consump-
tion.
   More specifically, rational regulators could believe that
Indiana’s beer wholesalers—with their robust franchise
protections and existing distribution infrastructures (ware-
houses, drivers, relationships with retailers, etc.)—would
vigorously compete with liquor wholesalers if allowed to
hold permits to distribute both kinds of alcohol. 5 Rational
regulators might also believe that this increased competition
could drive 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 wholesal-
ers are irrelevant because they were not in place when the prohibited-
interest laws were originally enacted. As we’ve explained, the actual
historical impetus for the law is immaterial 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. To
illustrate the point, Monarch notes that beer wholesalers have not
overtaken 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 wholesal-
ing, beer wholesalers would completely dominate the liquor-wholesaling
market. It’s enough that rational regulators could conclude that entry by
beer wholesalers into the liquor-wholesaling market would lower prices
through increased competition. Moreover, it’s not irrational to think that
the franchise protections enjoyed by beer wholesalers would give them
at least a slight advantage against incumbent liquor wholesalers.
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, potentially
leading to higher prices”); Alexander C. Wagenaar, et al.,
Effects of Beverage Alcohol Price and Tax Levels on Drinking: A
Meta-analysis of 1003 Estimates from 112 Studies,
104 ADDICTION 179 (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 temper-
ance objective and the obvious availability of a more direct
alternative call the rationality of this law into question.
    The Supreme Court has on limited occasions been willing
to infer irrationality from the availability of an alternative
policy that more directly and effectively furthers the gov-
ernment’s asserted interest. For example, in United States
Department of Agriculture v. Moreno, 413 U.S. 528 (1973), the
Court invalidated a statute that prohibited households of
unrelated individuals from receiving food stamps. The

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 justified the law on fraud-prevention grounds.
Applying rational-basis review, the Court rejected that
rationale because other statutory provisions 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
(relying on Moreno, 413 U.S. at 535, and explaining that the
government “may not rely on a classification whose rela-
tionship to an asserted goal is so attenuated as to render the
distinction arbitrary or irrational”).
    The Supreme Court’s broader rational-basis jurispru-
dence, however, points in the opposite 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 moment under rational basis review.” Tuan Anh
Nguyen v. INS, 533 U.S. 53, 77 (2001); see also Gregory v.
Ashcroft, 501 U.S. 452, 473 (1991) (“[A] State ‘does not violate
the Equal Protection Clause merely because the classifica-
tions made by its laws are imperfect.’” (quoting Massachu-
setts Bd. of Ret. v. Murgia, 427 U.S. 307, 316 (1976))). Against
this backdrop, Moreno and City of Cleburne are better under-
stood as extraordinary rather than exemplary rational-basis
cases. The Supreme Court has never invalidated an econom-
ic regulation on rational-basis review because a more direct
or effective policy alternative was available. Neither 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 encouraging
14                                             No. 15-3440

temperance; that it serves this purpose indirectly does not
make the law irrational.
                                                AFFIRMED.
No. 15‐3440                                                         15 

    EASTERBROOK, 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. 
16                                                      No. 15‐3440 


    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 substantive 
No. 15‐3440                                                    17 

objection  that  fails  at  the  threshold  under  Slaughter‐House 
and Glucksberg. 
