Joe Bierowski is an intern with Washington Legal Foundation. Mr. Bierowski, who is a junior at Roger Williams University majoring in political science and legal studies, is interning at WLF during his spring 2023 semester through the Washington Internship Institute.
When drafting the Bill of Rights the Framers had a specific goal in mind—limit the power of the federal government. Because of this, the Bill of Rights intended to constrain the actions of state, not private, actors. Lately, that distinction, and the reason for it, have at times been forgotten or ignored. For instance, as animosity toward corporate entities has risen in the U.S., talking heads and politicians have increasingly accused businesses of treading on Americans’ constitutional rights. One recent example of this is crusaders against “big tech censorship” accusing internet platforms of violating American’s First Amendment free-expression rights through content moderation. Another is businesses that deny an employee’s request for a religious exemption from vaccinations allegedly running afoul of the Free Exercise Clause.
The latter of these two examples has made its way to the docket of the U.S. Court of Appeals for the Sixth Circuit and was recently decided. In Ciraci v J.M. Smucker Co., the Sixth Circuit unanimously decided, through an opinion authored by Chief Judge Jeffery Sutton, offers a timely reminder that private actions very rarely abridge constitutional rights.
In Ciraci, employees sued J.M. Smucker Co. (Smucker’s) for violating their First Amendment right to the free exercise of religion. Their claims arose from the implementation of COVID-19 vaccination mandate. In 2021, President Biden issued an Executive Order directing all federal contractors to “ensure that all employees [were] fully vaccinated” unless an employee was “legally entitled” to health or religious exemptions. Soon after the President issued the executive order, Smucker’s imposed a COVID-19 vaccination mandate, to which the plaintiffs sought religious exemptions. After Smucker’s denied plaintiffs’ requests, rather than sue the federal government or sue Smucker’s under a federal statute, the plaintiffs sued the company as if it were an arm of the federal government bound by the First Amendment.
The Sixth Circuit upheld the federal district court’s dismissal of the plaintiffs’ complaint. The court conducted an analysis of whether Smucker’s, at least for purposes of its vaccination mandate decision-making, was a federal government actor. Though Smucker’s acted in compliance with federal law and at one point in time was a federal contractor, the court reasoned those factors, on their own, do not make Smucker’s actions those of the government. Smucker’s did not act “jointly” with the federal government when enacting the vaccine mandate, nor was Smucker’s compelled into or conducting an “exclusive government function” when implementing the mandate.
The opinion explains that courts distinguish private from public entities by asking whether “‘the specific conduct of which [a] plaintiff complains’ is ‘fairly attributable’ to the government.” In answering the first of three questions—Does the conduct “involve a traditionally government function?”—the court looked at “the entity’s underlying service” (making jelly and other food products), not the “government’s regulatory mandate” (vaccination). The court cited private entities conducting public elections as conduct that courts have found converts a private actor into a public one. Making jelly, however, is not a government function, the court pointedly stated. Even if the underlying service was vaccination, that is not a public function performed only by government.
Next, the Sixth Circuit considered whether Smucker’s and the government engaged in collective state action. Such “entwinement” can occur, the court noted, “when a private entity partners with, directs, or is controlled by government officials.” Although Smucker’s was a government contractor, courts have held that factor alone doesn’t constitute entwinement and certainly doesn’t rise to the level of the collective action in cases like Brentwood Academy v. Tennessee Secondary School Athletic Assn., 531 U.S. 288 (2001), where “An athletic association becomes entwined with the government when public schools govern, operate, and fund it.”
Finally, in applying the third inquiry, the court determined that the federal government did not compel Smucker’s to implement its vaccine mandate. For this inquiry, the court asked whether the federal government, through the Executive Order, coerced Smucker’s into refusing a religious exemption. The Order, however, gave Smucker’s the discretion to determine what constituted a “legal” religious exemption. A grant of discretion is far from a coercion to act, the court concluded.
The court’s three-pronged analysis left the plaintiffs with only one argument: Smucker’s compliance with a generally applicable law converted it into a state actor. Chief Judge Sutton summarized decades of Supreme Court precedent to the contrary in a single sentence: “To be regulated does not make one a regulator.” If this were not the case, significant portions of the United States economy would become state actors. Such an outcome, the Sixth Circuit explained with reference to a 2019 Supreme Court decision, Manhattan Comm. Access Corp. v. Halleck, “‘would significantly endanger individual liberty and private enterprise.’”
Despite the ideologically charged nature of the context in which this conflict came to court, the outcome was frankly never in doubt. Smucker’s actions in denying a vaccination exemption from its own mandate so clearly did not rise to the level of state action that the Sixth Circuit could have issued a much shorter unpublished, unsigned opinion. Such an opinion would have resolved the dispute without creating a judicial precedent that parties litigating in the circuit could cite.
Instead, not only did the court stamp “Recommended for Publication” on the opinion, but Chief Judge Sutton also assigned himself authorship. His analysis was very workman-like, but he also took the time to explain the larger constitutional principles at stake. Also, he noted that suing Smucker’s for a free-exercise violation was not the plaintiffs’ only option. They could have sued President Biden under the First Amendment, or they could have sued Smucker’s under the Title VII of the Civil Rights Act. At a time when government has never been larger and its tentacles reach into ever more facets of American life, kudos to the Sixth Circuit and Chief Judge Sutton for explaining why that growth generally does not convert private businesses into state actors.