Appellate and Constitutional Litigation

Mr. Codell brings to his appellate and constitutional litigation practice a background that includes clerking for U.S. Supreme Court Justice Ruth Bader Ginsburg and Judge David Tatel of the U.S. Court of Appeals for the D.C. Circuit and practicing law with Harvard Law School Professor Laurence Tribe, widely regarded as among the nation’s preeminent constitutional and appellate practitioners. Mr. Codell also served as Constitutional Litigation Director for the National Center for Lesbian Rights (NCLR) in precedent-setting constitutional litigation regarding LGBTQ rights.

Mr. Codell’s appellate practice has included state and federal court cases concerning a wide range of matters including constitutional law, employment law, entertainment law, insurance, securities law, banking issues, arbitration, property rights, tort law, the California initiative process, and civil rights. Mr. Codell has litigated in numerous states and in the U.S. Supreme Court and the U.S. Courts of Appeals for the D.C., Second, Third, Sixth, Ninth, and Tenth Circuits.

Mr. Codell’s constitutional practice has included successful litigation on behalf of the First Amendment rights of television networks, studios, writers and producers, as well as numerous cases in which he has successfully argued for precedent-setting rulings regarding civil rights.

A sample of the appellate and constitutional matters that David Codell has handled includes the following:

  • Along with other NCLR lawyers, as counsel in the Supreme Court for same-sex couples who challenged Tennessee’s refusal to recognize their marriages. The Supreme Court held that the U.S. Constitution requires that states throughout the nation must permit same-sex couples to marry and must recognize their lawful marriages entered into in other states. Obergefell v. Hodges, 576 U.S. 644 (2015).
  • Successfully defended on appeal a major television network and one of its large-market California television stations against purported race discrimination claims brought by a former news anchor after the station hired an anchor who is a member of a minority racial group. Hicks v. KNTV Television, Inc., 160 Cal.App.4th 994 (2008).
  • Successfully defended on First Amendment grounds a major television network, a television studio, and the creators of a hit television series that had been wrongfully accused of defamation and misappropriation of ideas.
  • Successfully represented in the U.S. Court of Appeals for the D.C. Circuit a District of Columbia executive who was terminated in violation of her constitutional due process rights. Campbell v. D.C., 894 F.3d 281 (D.C. Cir. 2018).
  • Successfully defended on appeal a major motion picture actor against allegations of fraud in connection with cast insurance coverage. Fireman’s Fund Ins. Co. v. De Niro, 2009 WL 1652971 (Cal. Ct. App. 2009).
  • Served as counsel for same-sex couples in Utah, Alabama, Florida, and Idaho who successfully challenged state laws excluding same-sex couples from marriage. Latta v. Otter, 771 F.3d 456 (9th Cir. 2014); Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014). In the Utah case, the holding by the U.S. Court of Appeals for the Tenth Circuit that the U.S. Constitution requires states to permit same-sex couples to marry was the first such holding by any federal appellate court.
  • Successfully represented state-wide LGBT organizations in California and New Jersey defending the nation’s first two laws prohibiting state-licensed therapists from trying to change the sexual orientation or gender expression of minors. King v. Governor of the State of New Jersey, 767 F.3d 216 (3rd Cir. 2014); Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2013).
  • Successfully represented numerous plaintiffs in litigation in which the California Supreme Court ruled that the state of California must permit same-sex couples to marry and that laws that discriminate based on sexual orientation are subject to the strictest level of constitutional scrutiny. See In re Marriage Cases, 43 Cal.4th 757 (2008).
  • In United States v. Windsor, 570 U.S. 744 (2013) (invalidating Section 3 of the federal Defense of Marriage Act), and Hollingsworth v. Perry, 570 U.S. 693 (2013) (regarding Proposition 8), co-authored amici curiae briefs submitted to the Supreme Court on behalf of legal scholars, the National Women’s Law Center, and other leading women’s legal groups, explaining that laws that discriminate based on sexual orientation should be subject to heightened scrutiny by the courts because such laws frequently are impermissibly based on gender-based stereotypes about women’s and men’s roles in relationships and families.
  • Successfully represented Equality California and numerous same-sex couples in trial-court and appellate litigation that resulted in repeated rulings in 2005 and 2006 upholding California’s historic domestic partnership statutes against constitutional challenges. Knight v. Superior Court, 128 Cal.App.4th 14 (2005).
  • Represented high-school students in the first case in the United States in which a court ordered a school district to permit a gay-affirming student club to meet on campus. Colin ex rel. Colin v. Orange Unified School District, 83 F.Supp.2d 1135 (2000).
  • Experience prosecuting and defending against anti-SLAPP motions.