Union City, Ohio, and Union City, Indiana, sit across the state line from one another, with residents living just feet apart. Although these neighboring communities are similar in character, their residents face vastly different opportunities to purchase wine.

Union City, Indiana, falls within the Seventh Circuit, where Indiana’s wine retailer shipping restrictions were upheld as constitutional. Union City, Ohio, falls within the Sixth Circuit, where Ohio’s restrictions on out-of-state wine retailer shipping were struck down as unconstitutional.

The result? An Ohio resident can purchase wine from retailers in California and New York, while a neighbor across the street in Indiana remains restricted. Had the Ohio resident lived fewer than ten feet away, on the other side of the state line, the legal outcome could be entirely different.

This illustrates the absurdity of the Supreme Court’s decision not to grant certiorari in Wilson v. Miller. The Court had an opportunity to address a growing disagreement over discriminatory wine shipping laws. Instead, it left consumers subject to conflicting rules, with access to wine depending in part on where they live.

The Unfinished Business of Tennessee Wine

The confusion stems in part from the Supreme Court’s failure to establish a sufficiently clear framework in Tennessee Wine & Spirits Retailers Association v. Thomas.

The Court explained that discriminatory state alcohol laws must serve public health or safety, or another legitimate nonprotectionist interest. Their predominant effect cannot be economic protectionism disguised as legitimate regulation.

The Court also emphasized concrete evidence supporting a state’s asserted justification. Its analysis of Tennessee’s residency requirement highlighted the absence of evidence that the restriction advanced public health or safety and the availability of nondiscriminatory alternatives.

Yet the lower courts disagree over how those principles apply to the three-tier system of alcohol distribution.

The Third, Fourth, Eighth, and Ninth Circuits have adopted an “essential feature” approach, treating certain requirements associated with the three-tier system, including physical-presence requirements, as essential features of alcohol regulation. This approach can allow states to defend discriminatory restrictions without the same degree of evidentiary scrutiny demanded by Tennessee Wine.

By contrast, the First, Sixth, and Seventh Circuits have rejected the proposition that the three-tier system, by itself, resolves the constitutional question. These courts have required states to substantiate their asserted nonprotectionist interests with concrete evidence.

The disagreement raises a fundamental question: Is physical presence an independently sufficient justification for discrimination, or must a state demonstrate that its restriction advances a legitimate regulatory interest?

If calling a restriction an essential feature of the three-tier system is enough, a state may avoid the evidentiary inquiry contemplated by Tennessee Wine. If concrete evidence is required, states must defend discriminatory restrictions on their actual merits.

Constitutional Uncertainty

The Supreme Court has chosen to stand outside the fire while clear legal principles burn.

Is the Tennessee Wine inquiry strict scrutiny? How does the Twenty-first Amendment modify the dormant Commerce Clause analysis established in Granholm v. Heald? And when must courts consider whether nondiscriminatory alternatives could achieve a state’s objectives?

These are not merely questions of terminology. The answers determine whether discriminatory wine shipping laws survive constitutional review.

The uncertainty is evident in the Seventh Circuit itself. In the litigation concerning Indiana’s restrictions, Judge Scudder questioned whether Supreme Court precedent required a separate analysis of nondiscriminatory alternatives. When appellate judges remain uncertain about the analytical steps required by controlling precedent, the need for clarification is difficult to ignore.

A decision intended to clarify the relationship between the Twenty-first Amendment and the Commerce Clause has instead left lower courts applying competing interpretations of the governing standard.

The Supreme Court’s Missed Opportunity

The consequences are visible in Union City. Two neighbors can live within feet of one another yet face different rules governing their ability to purchase wine from out-of-state retailers.

Constitutional principles should not change in the middle of a road simply because the state line runs through it.

By declining to resolve the disagreement, the Supreme Court has left consumers, retailers, and courts navigating conflicting rules. The dispute concerns both the proper methodology for evaluating discriminatory alcohol laws and the constitutionality of the restrictions themselves.

The legacy of Tennessee Wine risks becoming one of confusion rather than clarity. The Court missed an opportunity to establish a consistent constitutional standard, resolve a consequential disagreement among the circuits, and provide stability to an unsettled area of law.

For now, access to wine from out-of-state retailers remains dependent, in part, on geography.

Perhaps next time.