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Technically, the Supreme Court Monday did not establish a constitutional right for same-sex couples to marry. It merely declined an opportunity to rule definitely one way or the other on the question.

But in the not-too-long run, the consequences may well be the same. Because the situation the court created — or acknowledged — will almost surely continue trending in favor of same-sex couples who want to marry.

Conversely, the legal ground is eroding for states that want to stop such marriages or deny them legal recognition.

As thousands more same-sex couples marry all over the country, this legal climate change becomes a kind of fait accompli.

For the moment, the court's denial of review means state-enacted bans on same-sex marriage in five states were wiped off the books. The denial meant lower court rulings that spiked those bans will now stand. Let's call them The Five.

So couples in The Five could begin marrying regardless of gender as of today — and some got licenses immediately.

In six other states that had banned the practice, further legal proceedings may be needed to apply the rulings of the relevant federal circuit courts of appeal. But because these six are connected to The Five through the federal circuit system (jurisdictions for the purpose of appealing federal court decisions) the same judgment will apply. Effectuating that judgment in these six states is a short step — and one that is already in motion.

Then they will be just like The Five.

That will bring the number of states where gay marriage has been legalized, either by the state itself or through these federal cases, to 30. And these states are home to the vast majority of the national population.

There are still ways for the Supreme Court to reassert itself in this debate. But the question is, do they want to?

Many legal experts have looked over the landscape and perceived both a trend in the federal system and a signal from the nine justices who sit at its zenith.

Amy Howe, the editor of the highly regarded SCOTUSBlog, told NPR's Nina Totenberg that the justices "are very smart people" and added, "I don't think they're going to be able to put the genie back in the bottle."

The genie got out back in June 2013, when the court decided Windsor v. United States, throwing out the 1996 Defense of Marriage Act, or DOMA. By smacking down this pivotal federal statute, the court threw wide the gates for other challenges to state laws barring gay marriage or otherwise treating gays differently.

Now, as those challenges come in waves, the federal courts at all levels are applying the reasoning from Windsor with great consistency.

If the high court wanted to use that as an occasion to declare a constitutional right, it could have taken one or more of the cases it denied today. But opponents of gay marriage had hoped the court would take such a case for precisely the opposite reason — to uphold the states' right to ban gay marriage.

Instead, Howe observes, the justices instructed their confreres at lower levels of the pyramid to "keep on doing what you're doing."

In other words, there isn't a clear majority of the nine to settle the matter with a landmark ruling one way or the other.

They could choose to re-enter the fray at some later point, perhaps when another circuit court of appeals weighs in with a ruling that supports the state's right to ban gay marriage. That would at least create a conflict for the Supreme Court to resolve.

Or it could revisit the issue later, perhaps when a clear majority has formed either to prohibit gay marriage or to permit it. That might require waiting until Justice Anthony Kennedy, a swing vote on such issues, declares himself. Or it could await the next retirement of a sitting justice and the confirmation of a successor.

But as the number of legal gay marriages skyrockets, and the practice becomes both legal and common across most of the states and most of the population, a future court is less and less likely to rescind it.

Or even take such a case.

U.S. Supreme Court

gay marriage

Democrats this election have done a good job attracting a lot of big donors, but Republicans appear to have the big advantage when it comes to big secret donors.

The strength of Democratic House and Senate fundraising committees — and their supporting superPACs — has been a surprise development this cycle, even as the Senate seems poised to flip to Republican control and the House is almost certain to remain under GOP leadership.

Now Republicans will get even more help from their big guns from the past two elections: the tax-exempt nonprofit groups Americans for Prosperity and Crossroads GPS.

Americans for Prosperity, founded by the industrialist billionaire Koch brothers, has already been running tens of millions worth of ads attacking Democratic senators in key states. Now it says it will also run ads specifically telling voters to defeat those Democrats on Nov. 4. It will not reveal how much it intends to spend, but earlier media reports suggest the group's total outlays this election could be near $300 million, although that figure includes voter registration and turnout efforts.

Crossroads GPS, co-founded by GOP operative Karl Rove, is on track to raise some $75 million this election, according to spokesman Paul Lindsay, and will spend at least $23 million of that in the final two months of the campaign in six states, including $9.5 million in Colorado alone.

Democrats and liberals, in contrast, have focused on superPACs that disclose the name of every donor who gives more than $200. Tom Steyer, the San Francisco investor and climate change activist, has given $40.9 million to his NextGen Climate Action Committee and $5 million to Senate Majority PAC, according to an NPR review of Federal Election Commission records. Former New York City Mayor Michael Bloomberg has donated $6.9 million to his pro-gun control Independence USA PAC and $2 million to Emily's List's Women Vote superPAC.

The 10 Biggest Super PAC Donors To Date

Donor

Super PAC

Amount

Thomas Steyer

NextGen Climate Action

$40,900,000

Michael Bloomberg

Independence USA PAC

$6,860,912

NextGen Climate Action

Senate Majority PAC

$5,500,000

Thomas Steyer

Senate Majority PAC

$5,000,000

Fred Eychaner

Senate Majority PAC

$5,000,000

Senate Majority PAC

Put Alaska First

$4,663,000

Michael Bloomberg

Senate Majority PAC

$2,500,000

Fred Eychaner

House Majority PAC

$2,500,000

Working for Working Americans

Senate Majority PAC

$2,250,000

Michael Bloomberg

Women Vote (EMILY's List)

$2,000,000

Source: NPR analysis of Federal Election Commission data

But in terms of groups that keep their donors secret, Patriot Majority USA and the League of Conservation Voters are the only Democratic-leaning nonprofits that have spent more than $1 million on election-related activity so far, with each reporting about $7 million in spending to the FEC.

How much these politically oriented nonprofit groups will actually raise and spend won't be known until next spring, when their annual filings to the Internal Revenue Service come due. But while those documents show how much was raised and how it was spent, the names of the donors will likely remain secret forever. That actually is the only advantage for donors — there is no tax deduction or other financial benefit to giving to these groups rather than to superPACs.

In the 2012 election cycle, for example, Crossroads GPS spent $71 million on ads directly advocating against a Democratic candidate or for a Republican one. But it spent $94 million on ads attacking President Obama and Democratic members of Congress.

The difference between the two approaches might be unnoticeable to the typical voter. A so-called "issue ad" will recite all the terrible things a senator has done, and then urge viewers to call that senator's office to register their displeasure. An "express advocacy" ad will recite those same terrible things, but then tell the viewer to vote that senator out of office.

Though slight, the distinction makes all the difference in the world, at least in the way the FEC and the IRS interpret election and tax law. By using words like "vote" or "defeat" or "elect," an ad is seen as attempting to sway an election. Ads that don't use those words are merely educating the public on "issues." The IRS has ruled that nonprofit groups must spend the majority of their money on "social welfare" functions — such as educating the public — in order to maintain the tax status that enables them to keep their donors' names secret.

Advocates of campaign finance reform and many Democrats argue that the loophole allows the wealthy to influence elections without public accountability, thereby undermining the "who-gave-who-got" premise behind disclosure laws. Many conservatives argue that disclosure laws unfairly silence their donors because they fear public criticism and boycotts of their businesses.

Senate Majority PAC

Crossroads GPS

Sitting in the empty auditorium, ten minutes before Yoram Bauman's set begins, I start feeling bad. Low turnout is hard on a stand-up comedian, but what was he expecting for a comedy gig at 6 p.m. on a Monday night ... at the Inter-American Development Bank, of all places?

When the event coordinator comes in to make an announcement to the six of us in the audience, I worry she's going to cancel the event.

"There's a bit of a hold-up at the entrance. The line's out the door, so we're going to wait a few minutes to get started."

Oh.

By the time Bauman takes the stage, the packed house — looks like at least 200 people — are cheering and clapping for the world's first stand-up economist. He grabs the mic and starts his set by admitting just how strange his profession is. When he told his dad that he wanted to use his Ph.D. in economics as the basis for a comedy career, his dad was unsure.

"He didn't think there would be enough demand."

On a Monday night, in the basement auditorium of a development bank, this is the kind of joke that kills. Bauman tries another.

"I told him not to worry. I'm a supply-side economist. I just stand up and let the jokes trickle down."

I'm not so sure about these economics puns myself, but the crowd is eating it up.

"I believe in the Laffer curve." Crickets. Bauman doesn't mind. He waves off the silence. "That's my test of how much economics you know. I give you guys a six."

Since that's roughly the grade I got on my Economics 101 final exam, I am understandably wary about a stand-up economist. But Bauman has managed to make a career out of economics-based humor, presenting at colleges, professional conferences and comedy clubs.

He's also the co-author of three cartoon textbooks: The Cartoon Introduction to Microeconomics, The Cartoon Introduction to Macroeconomics and, out this summer, The Cartoon Introduction to Climate Change.

"I'm not going to say it's a semester's worth of economics, but it's not bad," says Bauman in an interview before the show. The books have been translated into a dozen languages. The latest is Mongolian.

The comic has a serious side as well. One minute, he's making fun of Libertarians ("left-wing Libertarians want the freedom to do drugs, right-wing Libertarians want the freedom to use guns and neither of them believe in social security. Although with those interests, who is going to make it to 65?"). The next he's pitching you his idea about environmental tax reform. In addition to being a comedian and an economist, Bauman has committed his life to "using the tools of economics and the power of capitalism to protect the environment."

In fact, Bauman works with a group, Carbon Washington, that has a measure on the ballot in 2016 to implement a carbon tax in Washington state.

"If we had higher taxes on carbon and other types of pollution, we could afford to have lower taxes on things like income and investment," he says backstage. "Higher taxes on bads, lower taxes on goods. When I first saw that idea as an undergrad, I thought it was intellectually beautiful. Now, I'm spending my life working on it."

Even if you don't quite understand environmental tax reform (shame on you!), you find yourself nodding along and agreeing like it's a cheesy infomercial: I do want lower taxes on income! I don't want the earth to burn!

Bauman spent five months studying global warming in China, where he got the t-shirt he often wears onstage: the word "Capitalism" written in the Coca-Cola brand font.

"The tag says 'made in China,'" Bauman reads. "It's 80 percent cotton, 20 percent irony."

Tall and gangly, Bauman doesn't do much to subvert the physical stereotype of an economist. He wears the same short-sleeve, checkered button-down shirt to most of his shows, which he can unsnap at a moment's notice to reveal his punch line t-shirt. He may be funnier than most who study the "dismal science," but his fashion sense fits the bill, which he acknowledges.

"You might be an economist if you're an expert on money, but you dress like a flood victim." Delivered with his self-deprecating shrug, even knock-off Jeff Foxworthy jokes get a laugh from the crowd.

A development bank is the perfect setting for Bauman, where he can make jokes like this one: When life gives you lemons, development economists take 50 Kenyan villages, split them into two random groups, see how one group responds to lemons, and then write an article for the Journal of Economic Development.

The woman sitting behind me had to leave the room to compose herself, she was laughing so hard.

But he doesn't always hit the mark. When he submitted an idea about hyperinflation in hell for the humor column he edits for the journal Economic Inquiry, his editor asked: "Are we to assume that the dead have lost their ability to innovate?"

stand-up comedy

Yoram Bauman

economics

In the 1950s, four people — the founder of the birth control movement, a controversial scientist, a Catholic obstetrician and a wealthy feminist — got together to create a revolutionary little pill the world had never seen before.

They were sneaky about what they were doing — skirting the law, lying to women about the tests they performed and fibbing to the public about their motivations.

"They absolutely could've been imprisoned for some of the work they were doing," journalist Jonathan Eig tells Fresh Air's Terry Gross. "These guys are like guerrilla warriors — they're always having to figure out ways to do this thing that will attract the least attention. ... They can never really say they're testing birth control."

The Birth of the Pill

How Four Crusaders Reinvented Sex and Launched a Revolution

by Jonathan Eig

Hardcover, 388 pages | purchase

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Read an excerpt

Eig tells the history in his new book The Birth of the Pill: How Four Crusaders Reinvented Sex and Launched a Revolution.

The four people who created this revolution were: Margaret Sanger, who believed that women could not enjoy sex or freedom until they could control when and whether they got pregnant; scientist Gregory Pincus, who was fired from Harvard for experimenting with in-vitro fertilization and bragging about it to the mainstream press; John Rock, who was a Catholic OB-GYN and worked with Pincus to conduct tests of the pill on women; and Katharine McCormick, who funded much of the research.

In the '50s, selling contraception was still officially illegal in many states.

But Sanger and McCormick, a feminist who had been active in the suffrage movement, wanted women to enjoy sex — without fear of getting pregnant.

After McCormick's husband died, McCormick got in touch with Sanger.

According to Eig, McCormick said, "What's the most important thing we could possibly work on?"

"Sanger said, 'The best thing we could possibly do is work on this pill, this miracle tablet ... something that would give women the right to control their bodies for the first time.' And McCormick said, 'I'm in: Whatever you need.' "

Interview Highlights

On why Eig wanted to write the book

I was listening to a rabbi's sermon — this was maybe five or six years ago — and he began by saying that the birth control pill may have been the most important invention of the 20th century. My immediate reaction was, "That's nuts. That can't possibly be. I can think of six things off the top of my head that seemed more important than that." But it stayed with me. I kept thinking about it.

A couple of years went by and I was still thinking about it. His case was that it had changed more than just science, more than just medicine. It had changed human dynamics. It had changed the way men and women get along in the world. It changed reproduction, obviously, but it also created all kinds of opportunities for women that weren't there before, it had spread democracy. ...

If it really was the most important invention of the 20th century, and maybe he was right, why don't I know how we got there? I don't know the inventor of the pill. I can tell you the inventor of the telephone and the telegraph and the light bulb, but I have no idea where the pill came from.

i i

Margaret Sanger was considered the founder of the birth control movement. General Photographic Agency/Getty Images hide caption

itoggle caption General Photographic Agency/Getty Images

Margaret Sanger was considered the founder of the birth control movement.

General Photographic Agency/Getty Images

On American Birth Control League founder Margaret Sanger seeking a "magical pill"

Sanger's story is personal in some respects. She had seen her own mother die after having given birth to what she felt like were far too many children and far too great a sexual drive on her father's part. She went to work in the slums of New York City where women were having eight, nine, 10 children with no idea how to stop it, other than having abortions, which were often poorly performed and very dangerous. So she saw this stuff very up close. ...

There had been this backlash against the control of fertility in the late 1800s and early 1900s, where it had been made illegal even though the fertility rates had been dropping over the course of the 18th century.

But by the time you get to Sanger and she's a young woman working in New York City, it's very hard for women to get any kind of education even about birth control, much less birth control products. She has this plan to improve education for women. But her dream, and it's really just a dream, is that there should be some kind of magical pill — something that would allow women to turn on and off their reproductive systems.

On scientist Gregory Pincus and his controversial work

Pincus was fired from Harvard. In fact, he was denied tenure because he was far too controversial. In the 1930s, he was not only experimenting with in-vitro fertilization, he was bragging about it to the mainstream press, which is something serious scientists weren't supposed to do.

“ The laws and the ethics of science were very different in the 1950s than they are today — you didn't have to give informed consent. ... So in a way, we do have women being treated like lab animals so that we may find a form of birth control that frees them.

Instead of just publishing his results in medical journals, he was taking them to popular magazines and saying, "This is the brave new world!" And people were scared of the Brave New World because of the Huxley book, but Pincus didn't mind the comparisons. He said, "Someday we will control [how] babies are born. We might not even need men in the process. We will be able to control the giving of life through science." This scared the hell out of people.

Harvard, which had once hailed Pincus' research as some of the most important research it had ever done, suddenly quit on him, cut ties completely and he was unable to find a job anywhere else in the world of academics. He ended up working out of a garage for a little while, out of a barn for a bit, and then founded his own scientific institution on really a wing and a prayer, going door-to-door in the community of Worcester, Mass., knocking on doors, asking people to contribute to his scientific foundation. So he was a real fringe character at the point that Margaret Sanger and Katharine McCormick found him.

On Pincus working with fertility gynecologist, John Rock, testing injections on unknowing women

There's a lot of lying in this process of creating the first oral contraceptive. That's what they have to do. You can really have a wonderful ethical discussion and debate about whether it was worth it, whether they were doing things that were beyond the bounds. The laws and the ethics of science were very different in the 1950s than they are today — you didn't have to give informed consent, you didn't have to have anybody sign forms giving away their rights, telling them about what these experiments are for. So in a way, we do have women being treated like lab animals so that we may find a form of birth control that frees them. There's a great irony there.

On how they sought Food and Drug Administration approval

This is the first pill ever created for healthy women to take every day. There's never been anything like this and the idea of seeking FDA approval for something women are going to take every day without studying it for years and years and checking out the long-term side effects, this is scary stuff! But Pincus also feels like he's racing the clock, that if the word gets out about this and the Catholic Church and the federal government realize what they're doing, the opposition will mount and he'll have no chance of getting it through. ...

i i

Author Jonathan Eig is a former reporter for The Wall Street Journal and has written three other books about Al Capone, Lou Gehrig and Jackie Robinson. Steven E Gross/Courtesy of W.W. Norton hide caption

itoggle caption Steven E Gross/Courtesy of W.W. Norton

Author Jonathan Eig is a former reporter for The Wall Street Journal and has written three other books about Al Capone, Lou Gehrig and Jackie Robinson.

Steven E Gross/Courtesy of W.W. Norton

In 1955, when they've really only tested the pill on maybe 60 women for more than say, six months or a year, Pincus goes to a conference and declares victory. He declares that we've invented the pill. The media picks up on this and it becomes this huge story. ... Thousands of women are writing to their doctors and writing directly to [Pincus and Rock] saying, "I've heard about this pill and I need it, I need it now!" ... There was this huge outpouring and it had a huge effect on Pincus and on the other scientist working on this because they began to see there was an enormous demand for this and they began to see they had to push harder, they had to go fast. When you go fast in science, you're taking great risks. ...

It's one of the great bluffs in scientific history. [Pincus] knows that he has the science. He's not sure that it's really ready; he hasn't tested it on nearly enough women. His partner John Rock is saying, "Don't you dare announce that we're ready to do this yet. If you do, I'm out." He's furious with Pincus. But Pincus does it anyway. He realizes that they've got some momentum and they need to keep it going, this whole thing could fall apart if too much opposition is raised.

On manufacturing the pill

As a result of all of the publicity, the G.D. Searle pharmaceutical company agreed to manufacture the pill and to apply to the FDA for approval, but Pincus and Searle come up with yet another sneaky but brilliant idea. They decide, "We're not going to ask the FDA to approve it as birth control because that will raise a whole bunch of other issues. ... Let's just ask them to approve it for menstrual disorders." ... Almost any woman can go into her doctor and say, "I've got an irregular cycle. I'd like to have this new pill." And that's exactly what happens. The pill has a label on it that says, "Warning: This pill will likely prevent pregnancy." And it's the greatest advertisement they could ever have — because this is what women want.

On McCormick realizing her accomplishment

One of the scenes in this book that I love is — Katharine McCormick, who is even older than Sanger, she's 80 now and the pill is approved, it's available, and she goes into the drugstore with a prescription from her doctor and asks for it. This 80-year-old woman is going in and asking for a prescription for the birth control pill and obviously she wasn't planning to use it — she just wanted to be able to buy it. It meant so much to her to know this was available now to women, 60 years too late for her, in many ways, but she had done it and that was an amazing accomplishment.

Read an excerpt of The Birth of the Pill

the pill

Birth Control

Women's Health