Arthur Silber linked to this brief filed by the City of San Francisco in opposition to a conservative organization's request for a Temporary Restraining Order. For reader convenience (I know everyone hates pdf files!) here's a text "translation" of the pertinent language:

The availability of preliminary injunctive relief depends on two interrelated factors. First, "[ t]o qualify for preliminary injunctive relief, plaintiffs must show irreparable injury, either existing or threatened." (Cohen v. Board of Supervisors (1986) 178 Cal. App. 3d 447, 453.) Even if the plaintiffs satisfy this threshold burden, a court must balance that injury against the injury defendants and the public will suffer if injunctive relief is issued. (Socialist Workers etc. Comm. v. Brown (1975) 53 Cal. App. 3d 879, 888-889.) Second, a party may not obtain preliminary injunctive relief unless it establishes a reasonable probability that it will prevail on the merits. (Cohen v. Board of Supervisors (1985) 40 Cal. 3d 277, 286.) These requirements apply to a request either for TRO or preliminary injunction. (Code Civ. Proc. §527; First National Bank of Oakland v. Superior Court of Santa Clara County (1966) 240 Cal. App. 2d 109, 110.)

The showing of irreparable harm required is even greater where government action is involved. In such cases, "courts should not intervene unless the need for equitable relief is clear, not remote or speculative" (City of Vernon v. Central Basin Municipal Water Dist. (1999) 69 Cal. App. 4th 508, 517), and the plaintiff "must make a significant showing of irreparable injury." (Tahoe Keys Property Owners' Assn. v. State Water Resources Control Bd. (1994) 23 Cal. App. 4th 1459, 1473.)

Petitioners do not seriously attempt to show that they will suffer irreparable harm absent preliminary injunctive relief. They simply argue they are entitled to such relief because Code Civ. Proc. § 526a authorizes them to maintain an action based on the alleged illegal expenditure and waste of public funds. But Section 526a merely grants taxpayers standing to maintain an action and bring it to judgment permanently enjoining unlawful expenditures. (White v. Davis(2003) 30 Cal. 4th 528, 555, citing Blair v. Pitchess (1971) 5 Cal. 3d 258, 267-70.) Section 526a does not excuse taxpayers from complying with the traditional requirements for preliminary injunctive relief. See White v. Davis, 30 Cal. 4 th at 555-57 (affirming line of decisions holding taxpayers' interest in preventing unlawful expenditures cannot "' substitute for the high degree of existing or threatened injury required for [] prejudgment injunctive relief . . .'"; citing Cohen v. Board of Sups. (1986) 178 Cal. App. 3d 447, 454; Loder v. City of Glendale (1989) 216 Cal. App. 3th 777; and Leach v. City of San Marcos(1989) 213 Cal. App. 3d 648.) Accordingly, petitioners must demonstrate that they will suffer harm beyond the allegedly unlawful expenditure of public funds.

Finally, and at a very minimum, Petitioners are in no way entitled in this proceeding to a declaration passing upon the validity of the hundreds of marriages that already have taken place, regardless of whether an injunction might issue to restrain the continued issuance of marriage licenses to same-sex couples. A declaration of that sort would be inconsistent with the due process rights of every single married couple not before this Court. Equally fundamental, however, it would not be an appropriate exercise of this court's mandamus powers. "Mandamus will not as a general rule issue, where the rights of third persons not parties would be injuriously affected. Where questions of grave importance concerning rights of persons who have had no opportunity to be heard are involved in mandamus proceedings, the court, in the exercise of its sound judicial discretion, may refuse the writ, although it is an appropriate remedy." Cooper v. Gibson, County Treasurer, 133 Cal. App. 532, 959-60 (1933) (declining to order county treasurer to distribute surplus funds from delinquency sale of real property to holders of public bonds, when intervenor-seller contested delinquency sale's validity and purchaser was not a party to mandamus proceeding). See also Board of Educ. v. San Diego, 128 Cal. 369, 371 (1900) ("Mandamus will not lie were its effect would be inequitable or unjust as to third persons or will introduce confusion or will not promote substantial justice"). In the days ahead, there no doubt will be other proceedings in which one or more same-sex married couples who are not presently before this Court might litigate the legal validity of their marriage. In their absence, however, this is not the proper forum to determine their individual rights.

B. Plaintiffs Have Not Shown They Will Be Irreparably Harmed By The City's Grant Of Marriage Licenses To Third Parties.

The only other harm Petitioners cite is that "the Clerk is likely to issue thousands of marriage licenses to same-sex couples, who will in turn use those marriage licenses to initiate litigation . . . [which will] multiply the workload of already overburdened courts." (Pets. ' MPA at 11: 18-24.) This "harm" however is sheer speculation, on which this Court may not issue the requested relief. Volpicelli v. Jared Sydney Torrance Memorial Hosp. (1980) 109 Cal. App. 3d 242, 267. Petitioners make no effort to explain why a host of duplicative cases would be filed, much less how such litigation would harm them other than as taxpayers. Absent a showing that Petitioners will suffer real, tangible, imminent and irreparable harm, this Court must deny their request for preliminary relief, whether couched as a "stay," TRO or injunction.

A classic example is that of a neighbor in a property dispute who is about to cut down a row of stately old trees based on his belief they are his. Regardless of who owns the trees, if it turns out he doesn't own them, irreparable harm will have been done, and so the TRO will generally issue.

What interests me here is the nature of the irreparable harm. What is it? The key objection to same sex marriage is that it would "destroy" the institution of marriage. While I have previously voiced my concerns about same sex marriage (because it would tend to weaken my right to total autonomy by allowing family court jursidiction over my private life), the idea that they would "destroy" the marriages of other people strikes me as utterly absurd. The only people who can destroy a marriage are the people in it, and perhaps third party intermeddlers who directly interfere with the relationship. But strangers somewhere? How does that threaten marriages of others?

The argument is also made that it would "cheapen" the "institution" because making homosexual marriages legal would "send a message" or "create a climate" conducive to the belief that same sex marriage is "just as good" or "the moral equivalent" of opposite sex marriage. Sorry, folks, but that argument strikes me as a closed loop. To say that a thing is bad because the existence of the thing makes it appear good conceals (at least fails to address) the underlying assumption (that same sex couples are inherently "bad"), and is therefore as rhetorically dishonest as it is illogical. The argument relies on the premise that same sex coupling is bad; otherwise it makes no sense at all.

And even if the idea is to stop "bad" people from marrying (lest their marriage contaminate the marriage pool), then why stop with same sex couples? Plenty of other bad people are allowed to marry. Robbers, rapists, swindlers, even convicted serial killers on death row -- all of these and more are allowed, quite freely, to marry.

So, while I prefer the privacy loophole of not having the government's foot in my bedroom door via the legal fascism which would accompany same sex marriage, I am deeply distrustful of the rhetoric used by its opponents.

I find myself utterly alone in my thinking, too. (Sometimes I wish there was a movement I could join....)

But let me play the Devil's Advocate here. Suppose -- just suppose -- that same sex marriage will "destroy the institution" of marriage. How many marriages does it take for said destruction to be complete?

What if it's already a done deal?