concurring.
The provision in question in this case (the “statute”) states:
On the petition of either party to a marriage, the court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.
Tex. Fam.Code Ann. § 6.001 (Vernon 1998) (emphasis added). The dissent essentially concludes that because Texas courts have recognized marriage as having a religious component, the term “legitimate ends of the marital relationship” in the statute cannot be construed to exclude that religious aspect. I disagree.
Wherever possible, we are to interpret statutes in a manner to avoid constitutional infirmities. General Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex.2001). It is undisputed, indeed beyond dispute, that our state and federal constitutions prohibit courts from addressing matters of religious doctrine in any context. Moreover, the extent to which marriage has a religious component is purely a matter within the beliefs of each individual, not a matter of legal interpretation or legislation.
Although courts may observe as a factual matter that some individuals have religious beliefs concerning their marriages, and although courts are bound to protect every individual’s rights to have such beliefs, courts certainly could not make, and have not made, any legal decision regarding whether marriage has a religious component because that is neither a legal issue nor a matter that courts may constitutionally decide, contrary to the dissent’s numerous references to marriage as “a relationship that Texas case law recognizes as religious in nature,” to marriage as being characterized by our state courts as a divine institution ordained by God, to “a wealth of Texas jurisprudence characterizing ... marriage as having a religious component,” and the like. Because marriage cannot be, and has not been, held by the courts to have (or not have) a religious component, there was no such case law for the Legislature to be aware of in drafting the statute. Accordingly, there is no basis to infer that the Legislature intended the phrase “legitimate ends of the marital relationship” in the statute to include any religious determination by the courts.
Perhaps the non-religious scope of the provision could have been expressed more distinctly or conspicuously if words such as “secular” or “non-religious” had been included. However, rather than changing the meaning of the words actually used, any such terms would only have been redundant since it is manifest that the Legislature and courts have power solely over secular matters in the first place. Although courts will undoubtedly be called upon to interpret what the “legitimate ends of marital relationship” consist of in a secular context, that term is no more inherently or unconstitutionally religious in its scope than the various other terms the law uses, such as “best interest of the child,” which, despite potentially strong religious significance to some, can nevertheless be interpreted and applied by the courts without infringing upon the free exercise of religion.