ROYAL OAK, MI -- Gay rights activists all over Michigan are preparing celebrations in anticipation of an appeals ruling that could uphold the overturning of the state's ban against same-sex marriage.
But the ruling may go the other way.
Experts anticipate a split decision and say the swing vote from the three-judge panel of the U.S 6th Circuit Court of Appeals is unpredictable.
Three other federal appeals courts around the country have each ruled in favor of allowing gay marriage, leading to a Monday U.S. Supreme Court decision not to review any of the cases.
"I think that those of us who have been involved in this thought that the court was going to weigh in on this matter as soon as it could," said Robert Sedler, a Wayne State University law professor with expertise in same-sex marriage. "But if you look at what happens normally, when you have three courts of appeal reaching the same results, so that you have no conflict, it would be normal that he court would deny the petition of certiorari."
The Supreme Court did so without comment Monday, making it appear unlikely the high court would review Michigan's case in the event an earlier ruling that called the ban unconstitutional is upheld.
Gay rights groups celebrated the court's non-intervention Monday, and were preparing celebrations to take place whenever the 6th Circuit Court issues its ruling.
But if the appeals court becomes the first to rule in favor of states that fought to protect gay marriage bans, Michigan's case could indeed be destined for the Supreme Court, experts said.
"If the 6th Circuit would rule against (gay marriage advocates), you then have a conflict among the circuits, and that would be a very typical reason for the court to grant review," said Sedler.
Beth Rivers, a Royal Oak civil rights attorney, agreed, and said there is a general feeling that the 6th Circuit, which is considering gay marriage-related questions out of Ohio, Kentucky and Tennessee as well as Michigan, could be the first to reject a legal right to same-sex marriage.
"There is some feeling that this circuit could buck the current trend and rule in favor of the state," Rivers said.
"Usually when the Supreme Court takes a case, it's because there was a split in the circuits... I think that there was some hope that they would take it and resolve it nationally for all 50 sates. But they didn't see a need for it yet."
During oral arguments in Michigan's case, which took place in August, U.S. 6th Circuit Appeals Judge Martha Craig Daughtrey appeared to favor marriage rights for gay couples.
She hammered state attorneys with tough questions and demanded an explanation of the difference banning same-sex marriage and prohibiting interracial marriage, which was prevalent in many states until a 1967 U.S. Supreme Court ruling in Loving v. Virginia.
Judge Deborah L. Cook was relatively quiet during the hearing, and experts view her as a strong conservative who could decide in favor of the state to uphold the ban.
The third judge, Jeffrey Sutton, is viewed as the swing vote.
Sutton during the August hearing said that if the fundamental elements of marriage were to be viewed simply as "love, affection and commitment," the state's case would be difficult to support.
But he also challenged lawyers for the Hazel Park couple who sued the state, asking why Michigan's gay community has turned to the courts rather than the ballot box to legalize same-sex marriage.
"I really think the best way to get respect and dignity is through the democratic process," Sutton said.
The case was brought by April DeBoer and Jayne Rowse, a Hazel Park couple who sued the state because they can't jointly adopt their three children without a legal marriage in Michigan.
U.S. District Judge Bernard Friedman ruled in their favor in March, finding the 2004 voter-approved ban to be a violation of constitutional equal protection and due process rights after a nine-day trial in Detroit.
That decision was put on hold pending the state's appeal, in which Attorney General Bill Schuette argued that overturning voter-approved bans is "demeaning to the democratic process," citing a U.S. Supreme Court ruling on Michigan's affirmative action ban that was handed down earlier this year.
"A lot of other attorneys general have just stopped trying to defend it, recognizing the weight of the arguments, but Mr. Schuette seems determined to fight it all the way," said Rivers.
A decision on the appeal could come at any time, but Rivers warned that the same court has at times taken more than a year to issue rulings.
Michigan gay couples are also eagerly awaiting rulings on a series of motions argued in August in a separate, but related case.
Before Friedman's decision to overturn the ban was put on hold pending appeal, more than 300 same-sex couples obtained marriage licenses in March.
A group of those couples later sued the state for denying them spousal rights with the appeal of the DeBoer case pending.
A federal judge in that lawsuit has taken his time ruling a request for a preliminary injunction from the plaintiffs and a motion for dismissal from the states.
"Maybe today's decision will spur some action," said Rivers on Monday.
"We'll see."