The Volokh Conspiracy
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J.M. Smucker Is Not a State Actor
The Sixth Circuit rejects a suit against the jam maker for requiring employees to get the jab.
Like many private employers, the J.M. Smucker Company required its employees to get vaccinated against Covid-19. Some of Smucker's employees did not like this policy, believed Smucker should have allowed for a broader religious exemption for the requirement, and filed suit. The problem with their suit, however, is they sought to raise constitutional claims against J.M. Smucker, and Smucker is not a state actor.
Chief Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit wrote for a unanimous panel in Ciraci v. J.M. Smucker Co. His opinion begins:
Four employees of the J.M. Smucker Company sought religious exemptions from the company's vaccine requirements. When the company refused, they filed this free exercise claim under the First Amendment against Smucker's. Constitutional guarantees conventionally apply only to entities that exercise sovereign power, such as federal, state, or local governments, and, in some other instances, tribal governments. Smucker's may be a big company. But it is not a sovereign. Even so, did Smucker's become a federal actor—did it exercise sovereign power?—for purposes of this free-exercise claim when it sold products to the federal government and when it imposed the vaccine mandate because the federal government required it to do so as a federal contractor? No, as the district court correctly held.
And here is how Chief Judge Sutton summarized the court's conclusions about why employees could not raise constitutional claims against a private company.
When Smucker's denied the claimants' request for a religious exemption, did it do so as a state actor? Not in our view. Smucker's does not perform a traditional, exclusive public function; it has not acted jointly with the government or entwined itself with it; and the government did not compel it to deny anyone an exemption. That Smucker's acted in compliance with a federal law and that Smucker's served as a federal contractor—the only facts alleged in the claimants' complaint—do not by themselves make the company a government actor.
Constitutions simultaneously empower and constrain. At the same time that they authorize various branches of government to exercise sovereign power, they limit that power in lots of ways, including through election requirements, tenure provisions, process-based requirements for making laws, and, most relevant for today, explicit constraints on the exercise of power. The first eight provisions of the Bill of Rights offer the most prominent example of constraints on government. Whether it is the Bill of Rights in general or the First Amendment in particular, these constraints typically protect citizens from the government, not from each other. Manhattan Comm. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019). It is the rare federal constitutional guarantee—the prohibition on involuntary servitude counts as a glaring exception, see U.S. Const. amend. XIII—that regulates solely private conduct.
Things could scarcely be otherwise with respect to most constitutional constraints. Take the Speech Clause. It forbids viewpoint-based limitations on speech, but private publications like the New York Times or Wall Street Journal may favor certain viewpoints or speakers. Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 258 (1974). The Free Exercise Clause likewise forbids discrimination based on religion, but the Catholic Church need not pick rabbis or imams to run its seminaries. Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2055 (2020). And so on and so forth. Applying ordinary First Amendment rules beyond the government would warp traditional principles of ordered liberty—impairing individual liberty and offering little order in return.
By way of contrast, many federal statutes regulate private conduct and some even protect certain values that the Free Exercise Clause protects. The claimants, for example, could have separately filed a claim under Title VII of the 1964 Civil Rights Act, Pub. L. 88-352, 42 U.S.C. § 2000e et seq. It bars private employers from discriminating against employees based on their faith, among other protected categories. 42 U.S.C. § 2000e-2(a). The claimants, notably, filed complaints with the EEOC under Title VII. At the same time, the claimants could have sued the federal government, which created the vaccine mandate for federal contractors. But they did not, requiring us to determine whether Smucker's counts as a government actor.
In holding the constitutional line between constraining government and constraining private entities, the federal courts ask whether "the specific conduct of which [a] plaintiff complains" is "fairly attributable" to the government. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 51 (1999); see Blum v. Yaretsky, 457 U.S. 991, 1004 (1982). Two sets of principles guide our answer. The first turns on the aggregated answers to three inquiries. Does the private company's conduct involve a traditionally exclusive governmental function? Halleck, 139 S. Ct. at 1928–29. Is that conduct "entwined with" government decisions or fairly attributable to the government based on a close "nexus" between the state and the challenged conduct? . . . Has the government compelled the company's action? . . . . The second cuts across all three inquiries and serves as something of a safe harbor. So long as a private company's actions turn on compliance with a state or federal law, that does not by itself make the company a state actor.
