Teaching the Obergefell case, in English, to Chinese Law Students.

In 2017 I was charged with teaching “The American Legal System” to both
undergraduate and graduate law students at Jiangxi University of Finance and Economics in
Nanchang, Jiangxi, People’s Republic of China. This was challenging. Teaching a foreign legal
system, in a foreign language, to students more interested in gaining understanding of their
own legal system, is foreign to almost all of us.

Like nearly all Chinese university students, my students have moderate command of
English, but they major in law- not English. Teaching these students requires one to speak
carefully and slowly, rachet down high-level vocabulary and legalese, and stop often to find out
if students understand what they are hearing. I had learned these skills previously. The
challenge this year was to figure out a way to make a topic like United States civil procedure
understandable and interesting.

Following one case from its origins as a local grievance all the way to the United States
Supreme Court can bring an abstract topic like legal process to life. Gideon’s Trumpet, Anthony
Lewis’s 1964 book that tracks Gideon v. Wainwright from a prisoner’s handwritten letter to Earl
Warren to a seminal Sixth Amendment Supreme Court decision, enthralled me 1. My goal in
2017 was to teach this process to foreign students. What are the steps from a dispute to a
resolution? What are the myriad of intermediate steps and what must lawyers and judges do
at each step? What issues need to be litigated and decided on the route to resolving the entire
controversy? In the abstract these steps can seem complicated and tedious, but when there is
a case there is a dramatic arch. We study a story; two heroes, a villain, building tension through
different steps, and finally a resolution.

Why teach Obergefell2? Well, Chinese students are interested in same sex relationships.
Homosexuality is a ‘hot topic’ in China. As early as 2011 students would ask me about it outside
of class. Obviously, as most reading this paper will assume, sex and sexuality is not taught in
middle school and is lightly taught in Chinese tertiary schools. Most schools simply assume that

1
1. Lewis, Anthony; “Gideon’s Trumpet, How one man, a poor prisoner, Took His Case to the Supreme
Court- and Changed the Law of the United States.” (1964) Random House Publishing.
2
Just for background, Obergefell is the famous ‘same sex marriage case.’ Obergefell v.
Hodges 576 U.S. 644 (2015). The opinion, delivered in 2015, held that denying same sex
couples the right to marry violated the equal protection clause of the 14 th amendment. The
court mandated that all states allow same sex couples to marry and access all economic and
social benefits available to married couples.
parents will teach their children about this subject. Many parents don’t and many young
people go to the internet to learn about the subject.

Same sex marriage has been legalized in Taiwan and ‘Gay Culture’ is out in the open in
Hong Kong, South Korea, Japan, and other countries in Southeast Asia. From at least 2009 on,
Chinese university students knew about this and were curious. Many students also expressed
to me their opinion that openness to homosexuality was a sign of progress and development.
Perhaps some see it akin to having multiple Starbucks in their city and multiple varieties of
Coca-Cola beyond Coke Classic.

I decided that Chinese law students’ interest in homosexuality could spill over into an
interest in the United States court system. I also knew that authorities or school administrators
could ask me why I was teaching a controversial topic. I knew I could always point to the
material in 90% of my power point slides which focused on civil procedure, 3 tell them that this
was a major judicial decision in the United States, and in the third and fourth slide I admonished
the students that the class’s purpose was to explore the United States legal system, not discuss
the pro’s and con’s of same sex marriage.4 I could even argue that the topic was incidental to
what I was teaching.

I also had to keep in mind that there are boundaries around what one can and should
say in the People’s Republic of China. A teacher needs to figure out these boundaries not only
to avoid offending the governing Chinese Communist Party and its campus representatives, but
also to not offend students who take pride in their country and its progress.

For those who do not know, the Obergefell case that arrived at the United States
Supreme Court was an amalgamation of over six lower court cases from five different appellate
circuits. I chose the case from Michigan, Deboer v. Snyder. I chose Deboer largely because the
3
Of course, I use Power Point Template when I teach the course. I do not translate
everything written on the .PPT; I translate key vocabulary and try to put that at the top of the
slide. It helps to orient students as to the topic. I also highlight key words and legal phrases
that I need to spend time explaining. For example, the word ‘settle’ when we say, “the lawyers
settled the case.” This just does not translate well into Chinese and I have to explain that
‘settle’ in this situation means the parties negotiate a solution to the dispute.
4
The third and fourth substantives power point slides I show to the students state that
this case study focuses on law, legal procedure, and the workings of the United States Federal
Court system. The slide further states that questions around same sex marriage being
recognized in China is a Chinese issue and something up to Chinese people. I wanted the
students to focus on the legal process and the step-by-step procedures I would teach them.
federal district court for Eastern Michigan made its docket easily accessible from the internet. I
was able to personally download nearly all the documents filed in court and read transcripts of
depositions and court proceedings. Also, I chose Deboer because I am in favor of same sex
marriage and find the facts generating that case to be especially persuasive for those in favor of
same sex marriage. The plaintiffs brought the case against Michigan to protect and bolster the
stability of their family, not because of any personal liberty interest.

April Deboer and Jane Rowse were pediatric nurses in Michigan and same sex partners.
They worked at the same Detroit area hospital. Prior to filing their case, Deboer and Rowse
adopted three children who had been abandoned at birth at the hospital in which Deboer and
Rowse worked.5 When the couple initially brought a lawsuit against the state of Michigan, they
complained that a Michigan law that prevented same sex couples from jointly adopting children
violated their rights to equal protection. Prior to the lawsuit, April Deboer was the sole
custodial parent for two of their children and Ms. Rowse was the sole custodial parent for the
third. Michigan law did not allow any legal relationship between Ms. Rowse and the two
children adopted by Ms. Deboer. Both women wanted joint custody of the three children.

I start out by introducing students to the multiple state level efforts from 2002 through
2008 to prohibit same sex marriage. Michigan passed one of these state constitutional
amendments in 2004 by 55% of the vote.

I begin by narrating for the students how Deboer and Rowse, the plaintiffs (I simply
translate this word on my power point) filed a complaint in federal court. I discuss with the
students why the Federal District Court for the Eastern District of Michigan had jurisdiction over
this matter and why this court was the proper venue for the controversy. The concept of
jurisdiction is not novel in China and students study Chinese laws concerning it. However,
federal courts in the United States have strict rules regarding which kinds of cases and
controversies they might hear. I dedicated an entire subsequent class to issues surrounding
jurisdiction of the different court systems in the United States. I folded other legal issues such
as ‘standing’ and ‘case in controversy’ into this.

Next, I discuss with students the complaint that the plaintiffs filed. In the introductory
class, I would post the complaint on the classroom screen and go through the caption,
identification of parties, identification of the court, the names of the defendants, and why it
was important to name the governor of Michigan and then state, “In his official capacity.” I

5
Deboer v. Snyder, 973 F. Supp. 2d 757 (E.D. Mich. 2014) and accessible at
https://casetext.com/case/deboer-v-snyder-1
would then scroll quickly through the complaint to its prayer for relief. The class would study
pleadings later.

During the class on pleadings, I would highlight for the students what material is
required in a complaint one files in federal court. The Federal Rules require three elements, but
typically, a complaint requires six requisite elements.6 I would print between five and six copies
of the Deboer complaint and pass copies out to small groups of students. I would have the
students read through the complaint and identify those six required elements. Of course, I had
sent a .pdf version to the class social media group so students could easily translate the
language.

After that I highlighted the response and responsive pleading offered by the defendant,
Governor Tom Snyder and Attorney General and the State of Michigan. As one can imagine, at
first Michigan responded that Ms. Deboer and Ms. Rowse had not stated a legally valid claim.
Then the state alleged that because this was a family law matter, federal court should refuse
jurisdiction. These issues would constitute material for two subsequent classes; one being a
class concerning jurisdiction and another initiating proceedings and responsive pleadings.

I then narrated the initial proceedings in the case including the first hearing on
Michigan’s responsive pleading. The judge in the case, Hon. Bernard Friedman, initially held
that he would not consider and rule on any Michigan adoption law and adoption procedures.
These are legal subjects United States Federal Courts are highly reluctant to address 7.
However, instead of dismissing the case, he told both women and their lawyers to file an
amended complaint challenging Michigan’s prohibition on same sex marriage. Essentially what
the judge did was counsel a party to a lawsuit on how to proceed with its case. I highlighted
this event in Deboer. If I had time later in the semester, or if students studied a later class on
the history of Anglo-American law, we would look back at this event from the case and consider
the role of the judiciary in the United States. I believe Judge Friedman’s advice to the plaintiffs
went far beyond “Calling balls and strikes.” However, I also believe the judge did the right thing
in this situation. Students and I would discuss the role of judges in the Anglo-American legal
system later.

Next, I showed students how the court ‘narrowed’ and defined the issues the court
would consider. I asked students what they thought the issues would be in this case. Obviously
6
Generally those six requisites are: 1. The identification of the parties, plaintiff and defendant 2. Identifying the
court 3. Invoking jurisdiction of the court 4. A statement of the facts which brought the plaintiff to court 5. A legal
theory explaining why the court could grant relief and 6. A prayer for relief. See Fed. R. Civ. P. 8(a).
7
Elrod, Linda; American Bar Association Journal; “Federalization of Family Law” 2009 Volume 36 accessed on
January 21, 2022 https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/
human_rights_vol36_2009/summer2009/the_federalization_of_family_law/
“What happened?” is clear in this case: the two women attempted to jointly adopt children and
were denied, then they asked Michigan to acknowledge their marriage and were also denied.
The issues revolved around whether Michigan’s denials violated Ms. Deboer’s and Ms. Rowse’s
rights under the equal protection clause.

That led into the next chapter, the witness list and who would testify. The testimony in
this case revolved around expert witnesses on both sides of the same sex parenting question.
These experts had research histories in sociology, economics, history, and even constitutional
law. I gave the students a witness list with brief biographies of each witness. I asked students
to meet in groups. I assigned each group an expert witness. I then assigned students
homework; write a paragraph speculating why their assigned witness was important to the
case.

Later I discussed the idea of evidence. I told the students that in the United States court
system, lawyers for the parties produce and introduce evidence in court. Unlike Continental
Europe and China, judges in the United States do not independently investigate any of the facts
of the case. This is very surprising for Chinese legal students. They are far more used to a
system where judges or their aides will pick up a phone and call a witness directly. I also
showed students the ‘foundational’ questions a lawyer must ask of an expert before that expert
may be qualified to testify as an expert. Students were completely baffled by this. I remember
one diligent student asking me, “Can’t the judge just look up the economist’s degree and
writings on the internet?” When I had a group of graduate students or students expressing
interest in overseas study, I gave downloaded transcripts of the expert witnesses testimony in
Deboer. Then I gave them a checklist of questions and answers lawyers must follow before
introducing a particular witness as an expert. I had the students compare the two lists.

I discussed the difference between direct testimony and cross examination. I also
explained the four different types of civil discovery; interrogatories, request for documents,
request for admissions, and depositions- and gave examples of each in this case.

I showed the district court’s ruling in the case. For those who do not know, district
court judge Bernard Friedman ruled in favor of Ms. Deboer and Ms. Rowse and against the
State of Michigan. He produced a document known as a “Rule 52 Findings of Fact and
Conclusions of Law.” In that document he summarized the facts as he understood them from
testimony and documentary evidence and applied the law to those facts. I discussed how the
judge’s decision, like all judicial opinions, are organized in a similar fashion. I also discussed
how applying the law (as the judge understands it) to the facts of the case is the essence of
legal decision making.
 After the Michigan district court issued its ruling, the Deboer case moved up to the 6th
circuit court of appeals. First, I taught the students how appellate courts operate far differently
from trial courts. I showed students the briefs and the way the appellate lawyers relied on the
facts and the record from the trial court. I even replayed (along with a transcription +
translation) a question and answer colloquy between an appellate justice to Michigan’s lawyer.
Then I discussed the 6th circuit’s ruling, that upheld same sex marriage prohibitions.

Afterwards I put up a map showing the different appellate circuits with their same sex
ruling decisions. Prior to the 6th Circuit Court of Appeals ruling the Tenth, Fourth, Seventh, and
Ninth Circuit Court of Appeals had all ruled same sex marriage bans were unconstitutional. I
asked the students, “what should happen when different appellate circuits come to opposite
conclusions regarding a legal issue?”

In every class where I taught this case, at least two students knew that issues like this
are ultimately resolved by the United States Supreme Court. So, I then discussed how the
supreme court granted certiorari.8 I had to demonstrate to the students how the United States
Supreme Court had to adopt a tailored process to hear this specific issue. I did demonstrate
how the Supreme Court normally brings a case into its calendar to hear. I asked the students to
speculate as to why the court adopted a tailored procedure before allowing the advocates to
bring the issues before the court for its decision.

Unfortunately, every time I taught this case, I ran out of time by the time I got to the
actual arguments and actions before the United States Supreme Court. I would have liked to
play edited segments of the oral arguments (along with transcripts) for the students. I gave
students a summary of the arguments made by both the opponents and supporters of same sex
marriage made before the court. I also showed the class all the amici curiae briefs different
interested groups submitted to the court.

8
Writ of Certiorari means a type of writ, meant for rare use, by which an appellate court
decides to review a case at its discretion.  The word certiorari comes from Law Latin and means
"to be more fully informed."  A writ of certiorari orders a lower court to deliver its record in a
case so that the higher court may review it.  The U.S. Supreme Court uses certiorari to select
most of the cases it hears. The writ of certiorari is a common law writ, which may be abrogated
or controlled entirely by statute or court rules.
In Obergefell, the supreme court deviated from its regular order of receiving an appellate
docket and instead directed attorneys in the matter to argue two legal questions relating to
same sex marriage and the equal protection clause of the 14th Amendment. Obergefell v.
Hodges 576 U.S. 644 (2015).
 Finally, I showed the class the court’s actual decision. That decision, including the
concurring and dissenting opinions, went well over 200 pages of texts. Fortunately, I was able
to find a very good summary of the decision and the dissents. I then finished the class by
discussing how this decision would be enforced at the state level. I had the students read a
short account of the Kim Davis affair (Davis was the religious clerk in Kentucky who was jailed
for refusing to acknowledge a same sex marriage.)

As I taught United States Federal Court Civil Procedure, I would return to the Deboer case and
relate a procedural issue back the history of Deboer. I already gave the example of complaint
writing. Another example concerned jury trials under Federal Rules of Civil Procedure Rule 38
and 39. I would explain the difference between common law and equitable remedies and ask
students why a jury would not have be proper in Deboer. I then moved on to teach the 7th
Amendment and the seminal case of Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959)

During my first year at the university, I taught civil procedure as part of my introduction
to American Courts class. Then I taught this case study. In the spring of 2018, I decided to
reverse the order and taught Deboer/ Obergefell as a case study first, then taught procedure. I
found that students were far more engaged not only during the classes when I taught the case
study, but also later as I taught procedure. I do not have any metrics to measure how well my
students performed on class examinations (mine are open note essay format), but the
examination papers I received seems better. I also had fewer questions leading up to the
examination. I have always held the opinion that teachers should constantly look for examples
of how the content of their curriculum operates outside of the classroom.

I hope post Covid, China and the United States will see a return to more student
exchanges, there are presently over 317,000 Chinese nationals studying in the United States.
(Statistica accessed 1/13/2022) If 2.5% of them are studying law, that means around one
thousand are studying law. I hope some of my former students will be among this cohort and
that they communicate with me while they are here studying.