And that point was echoed by one of the liberal justices Justice Stephen breyer. This shift which is without precedent is mostly a sign the court is likely to rule in favor of samesex marriage. Rose we conclude with part one of a twopart conversation with the Iranian Foreign minister javad zarif. What happens if these negotiations fail . Well, it wont be a disaster, but it would be a very important missed opportunity because its a unique opportunity. The people of iran went to the polls a year and a half ago and chose a president who was calling for engagement based on mutual respect. Now we have this opportunity that has been given to us, the iranian government, and the International Community by the people of riern to engage. If our people see the engagement will not produce the necessary reciprocal respect we expect this would be an extremely important missed opportunity that will not only prevent us from resolving this issue which, in our view is a nonissue because, ace told you, we didnt because as i told you we didnt have any program to develop Nuclear Weapons anyway, we consider them irrational and immoral. Rose samesex marriage and Iranian Foreign minister on nuclear negotiations. Coming up. Rose funding for charlie rose has been provided by rose additional funding provided by and by bloomberg, a provider of multimedia news and Information Services worldwide. Captioning sponsored by Rose Communications from our studios in new york city, this is charlie rose. Captioning sponsored by rose we begin this evening with Marriage Equality. The Supreme Court heard oral arguments today in a case that could resolve one of the greatest civil rights issues of our time. The justices are considering two questions whether the constitution requires states to license samesex marriages and if states must recognize the marriages performed in other states. The issues arise from four lawsuits brought by same sex couples. Joining me is adam liptak of the New York Times and david boies who successfully argued against california samesex marriage ban proposition 8, i am pleased to have both on this program this evening. Adam, set the scene for us. You were in the room at the Supreme Court building and watched the advocates make their case and listened to the questions of the justices as they tried to go through it. Tell me about it. The room was absolutely packed charlie. It was full of samesex couples gay rights leaders and i think they left feeling pretty good but not as good as they might have. The questioning was more mixed than they might have liked. Justice Anthony Kennedy asked some questions that he thought maybe the court was moving too fast in this area, that maybe it should hesitate to change a definition of marriage which he said weve had for millenia but in the second half of the argument made strong points about the dignity of gay families, the importance to children that their samesex parents have all the benefits of marriage. So i think, on the whole and given how much more emphatically he made the second set of points, its very likely Justice Kennedy whos written all three gay rights landmarks at the Supreme Court will continue down that path. But i will have to say the evidence is more mixed than i would have anticipated. Rose do you think adam is correct . No, it obviously would be very disappointing if we lost this case, but i think what Justice Kennedy was recognizing in the beginning was simply this is an important case that need to be decided and has nod been decided and this country has moved considerably. Public opinion has moved considerably. I think all of us look alt equal rights differently than we did when i was born. So i think what Justice Kennedy was doing in the beginning was simply recognizing the magnitude of this decision. I think the substance of what he says in the second half of the argument is very powerful. Remember Justice Kennedy just two years ago wrote the windsor decision. You cant read that reasoning, i believe, and come to the conclusion that you are not going to have a recognition of equal Marriage Equality today. I just dont see how you can reconcile those. Justice scalia, whom i dont always agree with but who is always perceptive and almost always right to the point, i think in his dissent, and windsor likely laid it out is the principles are the principles that compel a favor of Marriage Equality. Rose adam, speak to thanks i think david is quite right. Before the argument in the morning when all we knew was Justice Kennedys reasoning in his windsor decision, there was a lot of reason to think he was prepared to go all the way and would say so today. He stopped short of saying so today. Will he say so in june . I agree with david very likely yes. But his questioning suggested that he knows hes on the brink of a major transformation of American Society and one that would largely be accomplished by Court Rulings and not democracy and that seemed to make him a little bit nervous. Rose what more did you glean from watching this about the justices beyond kennedy and about the advocates . Both sides presented their arguments well. The lawyers were good. The more liberal justices were skeptical of the justifications the states offered for banning samesex marriage. The states said somehow in banning samesex marriage it would make traditional marriage more secure, it would make children better off and justices kagan, Ginsburg Sotomayor went after them on that saying whatever you say about traditional marriage, its not clear how banning samesex marriage will do any harm to that institution. Yeah, i grow with that. I yeah, i agree with that. I also thought it was interesting that you saw both in the chief justices comments and Justice Alitos comments a search to see whether there was some middle ground. One of the questions Justice Alito asked in the second half of the argument when they were talking about whether states had to recognize other states marriages, even if they did not recognize Marriage Equality in their own state Justice Alito said, well maybe theyve got enough of an interest not to have those marriages performed in their state but not enough of an interest to prevent recognition, full faith and credit, other states marriages. He said thats possible. Opinion thought it was interesting to see Justice Alito who i think a lot of people would say would be against Marriage Equality in any form trying to find in the civil rights area some middle ground that he could be comfortable with. Rose and where is that middle ground . I think the middle ground he was suggesting i dont mean to suggest hes going to come out here but i think the middle ground he was asking about was the middle ground between not having a right to marry in a particular state if the state doesnt want you to but that state has to recognize your marriage if you have been married someplace else. That was the second question the Supreme Court had set for review. And when the chief justice asked, well, maybe this is a violation of gender eequality because one man can marry a particular woman but could not marry another man and that is purely a sexual distinction which obviously has a very high bar to be justified. So i think it was interesting to see that a number of the justices that i think some people might have said were just going to be almost all automatically against the proponents of marriage eequality searching to see whether there was a middle ground or way to reach that. Rose rugh Bader Ginsburg and elena kagan said allowing samesex marriage would do no harm, which is the argument many people do make would do no harm to the marriages of oppositesex couples, its not going to destroy the traditional marriage. Its only going to make the institution of marriage stronger, children more healthier and stable and secure. I think that was one of the points Justice Kennedy was making so eloquently is this is an institution that is important for children. Marriage equality is important obviously for the two people involved in the marriage but also terribly important for the children being raised. I think that was one of the things Justice Kennedy mentioned two years ago in the windsor and perry arguments and came back to it again in the second half of the first argument today. I think thats a very powerful and important point. Against those benefits you dont have anything to bounce. The state doesnt have any interest in preventing Marriage Equality. Its not going to harm heterosexual marriages. Thats a silly argument at this point. If theres no harm in it, how can a state possibly have an interest in preventing something that simply increases peoples happiness and security . Rose solicitor general don varili said in the New York Times a decision based on equal protection would have more practical muscle in other areas of the law but a symbolic blow to gay rights for the court to stop short of saying directly that gay couples have a right to marry. I think hes saying if you have an equal protection argument, what hes saying is you have to treat people equally regardless of Sexual Orientation, and if that has impact outside of the Marriage Equality issue. On the other hand, one of the things one of the reasons i think were all interested in seeing a due process rationale as well is that that demonstrates that the state cannot deprive people based on Sexual Orientation of these important fundamental rights. Remember that loving against virginia in 1967 when the Supreme Court destroyed the ban invalidated the bans in interracial marriage was a cite on both grounds, due process and equal protection. Rose the solicitor general dferred from some of the arguments made by the plaintiffs attorneys in seriously of the arguments he was making. He was making a more narrow or focused argument which is not unusual for the solicitor general. In the perry case when he came in on our side he, nevertheless made a considerably narrower argument. But i think the important thing is going to be the result here. The important thing is to get recognition of Marriage Equality nationwide and then you want to have that, as much as possible based on a broad jurisprudence that says were putting this terrible chapter of discrimination behind us. Were moving on just as were trying to move on, not entirely successful, but just as were trying to move on from the period of racial discrimination. We need to move on from the time of discrimination against people based on Sexual Orientation. Rose im not sure if it even compares to it, but have you seen the country change on such a significant issue as it did. Its been terrific just to watch the change in this country. One of the things that has been most gratifying is the fact that the american people, when they focus on an issue and understand an issue really come out in favor of our basic principles of liberty and equality. I think the thing that happened over the last number of years is people have an opportunity to think about this question and look at it and consider their gay or lesbian friend, neighbor, doctor, teacher, student cousin father child and athese people deserve equality just like everybody else. Theyre no different than i am. They deserve no lesser rights. They do not deserve to have their own state discriminate against them and say youre not equal, youre not worthy of the institution of marriage. Rose chief Justice John Roberts had questioned before about the political power of samesex couples. Did that come up . It sure did and follows on to davids very good point that society is moving very fast. But in court that may cut both ways. If this issue can be resolved democratically at the polls through ballot referendums through elected representatives and legislatures, the Supreme Court could be a little wary of stepping in and putting an end to what chief Justice Roberts called a fastmoving debate and he referred to the Public Opinion polls. He said this is getting settled on the grouped. Is it really for us nine unelected justices, unrelated to the ballot box to step in and tell the American Public what they have to decide, what each state has to decide on these issues . And that point was echoed by even one of the liberal justices, Justice Stephen breyer. So this enormous societal shift which is really without precedent is mostly a sign the court is likely to rule in favor of samesex marriage but does give rise to an argument that cuts the opposite way as well. Rose go ahead. Something we have to focus on there, though, that is although Public Opinion has moved tremendously, there are a handful of states in which realistically, were not going to get Marriage Equality for a very, very long time, in the absence of a recognition of a constitutional right. And that was exactly the situation in 1967 in loving against virginia and its basically the same states. The same states that had to have a constitutional decision from the Supreme Court to say youve got to recognize racial equality in terms of marriage are the same states that have to be told constitutionally you have to recognize Marriage Equality based on Sexual Orientation. This is one constitution where one country, we are one constitution, we have one set of rights. People dont have less rights in alabama or georgia than they do in massachusetts or california. And the constitution is written and the court is there to enforce it for all the citizens of the United States no matter where they live. Rose adam, the liberal wing, you wrote, of the Supreme Court and we know who they are has played its cards brilliantly. How so . As recently as october, 19 states allowed samesex marriage. Were up to 36 or 37 now entirely a consequence of actions taken by the Supreme Court in not reviewing Lower Court Decisions and that means that the map of the United States has expanded to a point where, as david says it looks very much like it did when the court struck down bans on interracial marriage. When you have about 15 states left, thats when the court tends to act. Looks like brown v board of education went about 15 states. In staying out of the way long enough for the map to expand the court brought itself into line with historical practices and i think should it decide to establish a right to samesex marriage, it will be more easily accepted as a consequence of the recent rose okay but having said that, are you writing that, in fact, for everybody concerned it would be better for the congress to do this rather than the Supreme Court . Thats not for me to say but that was certainly the view expressed by several justices and not only on the conservative side. Rose not only on the conservative side. Justice breyer expressed some hesitation of being one of nine unelected judges to make this really transformational change from a room in washington rather than let people out in the land come to the conclusion for themselves. Rose whats the argument . The reason twheaft nine unelected justices is to enforce the guarantees of our constitution. If we were prepared to leave basic human and civil rights up to a majority vote in a state legislature or in the congress of the United States, we wouldnt need a written constitution. The reason that our founders insisted on a bill of right insisted on rights for all people, all americans, and insisted on courts to enforce those rights buzz was that certain rights, freedom of speech freedom of press freedom of religion, the right to go to the same schools and marry the person you love are so basic and fundamental that were not going to leave those to any majority vote. Thats what the court was there to do. Nine unelected justices decided we would end segregation. Nine unelected justices decided bans on interracial marriage was wrong. Nine unelected justices have led the way to rights of freedom of speech and press and all the rights we hold dear as americans. The fact that the constitution has given the court this responsibility and it is an awful responsibility is something i think every justice feels and i think they may comout differently but i dont think any justice will shrink from the duty to enforce the constitution simply because they say let somebody else do it. Rose good to have you david boies. Adam, thank you. Great to be here. Rose thank you for joining us. Be right back. Rose Mohammed Javad zarif is here. He served as his countrys ambassador to the united nations. Hes in new york this week for the summit. He met with secr