Seventh Circuit Uncorks Dual Rationales in Chicago Wine v. Braun, Affirms State’s Direct Shipping Ban
A Decision Long in the Cellar
On August 5, 2025—nearly four years after oral argument—the Seventh Circuit uncorked its opinion in Chicago Wine Co. v. Braun, a Dormant Commerce Clause challenge to Indiana’s direct-to-consumer wine shipping restrictions. The opinion, delayed in part by the untimely passing of Judge Kanne (a panel member at argument), arrived as a per curiam ruling with separate concurrences from Judges Easterbrook and Scudder. Each judge traveled a different analytical route, but both reached the same destination: affirmation of Indiana’s statutory regime.
A per curiam opinion, for those outside the judicial vineyard, indicates an unsigned ruling representing the court’s institutional voice. In this instance, the court affirmed the district court’s grant of summary judgment in favor of the state using two distinct rationales. Judges Easterbrook and Scudder agreed on outcome—Indiana’s regulatory structure survives constitutional scrutiny—but dissected the issue through different constitutional lenses.
Procedural and Factual Posture
The Chicago Wine Company, an Illinois-based wine retailer, sought access to Indiana consumers through both common carrier and self-delivery by its own trucks. The state’s laws, however, foreclosed both options. Indiana prohibits retailers—whether local or out-of-state—from using common carriers to deliver wine. It permits only licensed in-state retailers to deliver using their own staff, who must secure separate permits.
Chicago Wine, joined by several Indiana consumers, sued under 42 U.S.C. § 1983. The plaintiffs alleged that Indiana’s laws unconstitutionally discriminated against out-of-state retailers in violation of the Dormant Commerce Clause. The district court granted summary judgment to the state, concluding that Indiana’s licensing and delivery scheme did not run afoul of the Constitution. The plaintiffs appealed.
The Per Curiam Holding: Two Roads to Affirmance
The court’s per curiam decision affirmed the district court’s ruling on dual bases. Judge Easterbrook focused on the absence of discrimination, sidestepping the more complex interplay between the Dormant Commerce Clause and the Twenty-First Amendment. Judge Scudder, by contrast, engaged directly with the Tennessee Wine framework, finding discrimination, but ultimately concluding that the state’s regulatory justifications passed constitutional muster.
Judge Easterbrook: No Discrimination, No Problem
Judge Easterbrook opted for clarity. He bypassed the intricate dance between the Dormant Commerce Clause and §2 of the Twenty-First Amendment by assuming, arguendo, that Tennessee Wine prohibits all discrimination against out-of-state alcohol sellers. Then he asked a threshold question: did discrimination occur?
In his view, Indiana law applies equally. Retailers cannot use common carriers—regardless of geography. In-state retailers may deliver only through their own trucks and licensed employees. Out-of-state retailers who wish to do the same must obtain an Indiana license and operate physical premises in the state. Easterbrook noted that Indiana once imposed a residency requirement, but the legislature repealed that statute, removing any explicit discriminatory bar. Chicago Wine now qualifies for licensure under the same conditions that apply to Hoosier retailers.
Easterbrook referenced Lebamoff v. Rauner, emphasizing that nondiscriminatory enforcement of a three-tier system suffices under the Constitution. He viewed the physical presence requirement not as a burden uniquely targeting out-of-state interests, but rather as a neutral rule attaching to all applicants. Like the Indiana retailer in Indianapolis, Chicago Wine would need to open a store in northwest Indiana to deliver locally. Cost alone does not establish discrimination.
Easterbrook also declined to adopt the B-21 Wines approach, which found discrimination but upheld the law anyway. That analysis, he warned, risks misapplying Tennessee Wine. In contrast, Easterbrook endorsed a clearer path: no discrimination means no constitutional violation. This is somewhat like Day v. Henry without actually citing Day v. Henry.
Judge Scudder: Discrimination Exists, But the State Wins the Tennessee Wine Test
Judge Scudder concurred in judgment but walked a more elaborate route grounded in the Tennessee Wine framework. He agreed that Indiana’s ban on common carrier shipping survives Pike balancing. However, he found that the in-state presence requirement for retail delivery discriminates in practical effect and therefore demands justification under Tennessee Wine’s two-step test.
Step One: Discrimination in Practical Effect
Scudder examined Indiana’s retail permit structure. While facially neutral, the regime excludes out-of-state retailers from obtaining the necessary permits unless they establish physical premises within Indiana. He labeled this a de facto residency requirement. Though Easterbrook dismissed this hurdle as equally burdensome to in-state firms located far from customers, Scudder noted the key distinction: Hoosier retailers may legally deliver statewide, while out-of-state retailers face an outright ban absent a physical store.
Drawing on Granholm, Scudder emphasized that requiring out-of-staters to establish residency or brick-and-mortar locations in-state runs afoul of core commerce clause principles. The physical presence rule, in his view, confers a protectionist advantage to Indiana retailers and shuts out their interstate competitors.
Step Two: Justification Under the Twenty-First Amendment
Scudder then applied the second prong of Tennessee Wine. A state may uphold a discriminatory alcohol regulation if it serves a legitimate, non-protectionist public health or safety interest, supported by concrete evidence.
Indiana passed that test, in Scudder’s view. The state advanced compelling regulatory interests:
- Promotion of temperance through control over the number and locality of permitted retailers.
- Underage drinking prevention via face-to-face delivery by trained, separately permitted employees.
- Enforcement efficacy, as the physical presence enables inspections, audits, and swift disciplinary action.
Notably, Scudder highlighted a novel justification: Indiana requires delivery personnel to check not only age but sobriety—an oversight factor not previously emphasized in these cases. That nugget might influence future litigation.
He also praised Indiana’s supporting evidence—declarations from excise officers, inspection statistics, and affidavits documenting regulatory constraints. Scudder found the state’s proof sufficient to meet Tennessee Wine’s evidentiary threshold, unlike decisions such as Sarasota and B-21 which, in his view, misapplied the doctrine by presuming the validity of three-tier features without requiring proof.
On Alternatives and Comparisons to Wineries
Scudder addressed, but discounted, arguments about the availability of less discriminatory alternatives. While Tennessee Wine mentioned alternatives, he questioned whether that inquiry applies in the alcohol context post-Tennessee Wine, noting that overreliance on alternatives risks eroding state authority under §2 of the Twenty-First Amendment.
He also distinguished wineries allowed to ship under Indiana’s Direct Wine Seller’s Permit. Those producers face volume caps, federal regulation, and limits to shipping only their own product—restrictions that make them less risky than out-of-state retailers. In short, the regulatory risk and enforcement profile differ meaningfully.
On the Common Carrier Ban: Evenhanded, Therefore Constitutional
Both opinions addressed Indiana’s blanket prohibition on common carrier delivery of wine. Because the statute treats in-state and out-of-state retailers identically—prohibiting both from using FedEx or UPS—the judges treated it as nondiscriminatory. Judge Scudder walked through the Pike test, noting that the burden on commerce does not clearly outweigh Indiana’s interest in age verification. State-certified delivery personnel can verify age and sobriety; common carriers, by contrast, cannot lawfully perform that function under Rowe v. New Hampshire Motor Transport.
Scudder acknowledged Lebamoff v. Huskey but found that this case presented the question more squarely. Still, he found the statute constitutionally permissible.
Final Thoughts: A Vintage Worth Decanting Slowly
With Chicago Wine v. Braun, the Seventh Circuit becomes the latest appellate court to weigh in on post-Tennessee Wine direct shipping litigation. The court affirmed Indiana’s regulatory framework on two paths:
- Judge Easterbrook: No discrimination occurred, so the challenge fails at the threshold.
- Judge Scudder: Discrimination occurred, but the state carried its burden under Tennessee Wine’s two-step test.
This dual rationale approach encapsulates the national debate over how courts should analyze alcohol shipping laws in the wake of Granholm and Tennessee Wine. It offers both a roadmap for state attorneys defending these laws and a warning to retailers hoping to circumvent physical presence requirements.For now, the Seventh Circuit aligns itself with the circuits that have upheld brick-and-mortar mandates—Day, Sarasota, B-21, and Jean-Paul Weg—while reinforcing the evidentiary burden states must carry under Tennessee Wine.
