Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman
Edited By: Kermit L. Hall
is the courtesy one jurisdiction gives by enforcing the laws of another jurisdiction. Comity is granted out of respect, deference, or friendship, rather than as an obligation. In American constitutional law comity has arisen in two ways. Historically important, although less common in the modern era, was the failure of comity in interstate relations. In the modern context comity is usually an issue that involves the federal courts’ willingness (or unwillingness) to rule on a state law in the absence of decision by a state court on the same issue.
In the antebellum period the status of slaves brought to free states raised particularly troublesome comity questions. Before 1830, courts in Louisiana, Kentucky, Mississippi, and Missouri gave comity to free-state and emancipated slaves who had lived or sojourned in a nonslaveholding jurisdiction. In Commonwealth v. Aves (1836), the Supreme Judicial Court of Massachusetts freed a Louisiana slave brought to Massachusetts by a visitor. In reaching this decision the court rejected arguments that Massachusetts ought to give comity to the slave laws of Louisiana. On the eve of the *Civil War some northern border states did allow masters to travel through their jurisdictions with slaves as a matter of comity; similarly, some southern states continued to recognize the free status gained by a slave who had lived in the North (see slavery).
But, the trend was clearly against comity. In Strader v. Graham (1851) and Dred *Scott v. Sandford (1857), the Supreme Court held that slave states were under no obligation to grant comity to free-slave laws but the Court was ambiguous about whether northern states were obligated to grant comity to southern laws regulating slavery. Symbolic of this denial of comity was Mitchell v. Wells (1859). In that case, Mississippi’s highest court refused to acknowledge the freedom of a slave whose owner had taken her to Ohio, where he legally manumitted her. In Lemmon v. The People (1860), New York’s highest court upheld the free status of slaves brought to New York City by a traveler who was merely changing ships for a direct boat to Louisiana.
Differences in state divorce laws have also led to denials of interstate comity. Despite claims that a divorce proceeding was an “act or judicial proceeding” that all other states were obligated to enforce under the Constitution’s *”Full Faith and Credit” provision in Article IV, various states have refused to recognize divorces granted under laws more lenient than their own (see family and children). In most areas of law, however, interstate comity has worked smoothly. Thus, states usually allow visitors to drive cars with drivers’ licenses from other states, usually recognize *marriages and adoptions in other states, and often grant professional licenses to migrants or visitors, as a matter of reciprocity and comity.
The concept of comity has also led to the modern doctrine of *abstention, which stems from the notion that the state and federal courts are equally obligated to enforce the United States Constitution. Justice Sandra Day *O’Connor noted in Brockett v. Spokane Arcades, Inc. (1985): “[T]his Court has long recognized that concerns for comity and federalism may require federal courts to abstain from deciding federal constitutional issues that are entwined with the interpretation of state law. … [W]here uncertain questions of state law must be resolved before a federal constitutional question can be decided, federal courts should abstain” from reaching a decision on federal issues “until a state court has addressed the state questions” (pp. 27–28).
Similarly, on grounds of comity and pursuant to federal law, the Supreme Court has generally refused to allow federal courts to intervene in pending cases in state courts absent a showing of bad faith harassment. As it noted in *Younger v. Harris (1971), comity is “a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. This, perhaps, for lack of a better and clearer way to describe it, is referred to by many as ‘Our Federalism,’ and one familiar with the profound debates that ushered our Federal Constitution into existence is bound to respect those who remain (p. 193) loyal to the ideals and dreams of ‘Our Federalism’” (p. 44).
Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity (1981).