Here is my quick answer to the "fairness" question:
True, secular preferences are not protected by the Free Exercise Clause. The idea is that religious liberty is in greater need of protection than mere secular preferences, because religious believers are subject to the law of both God and man. As Prof. McConnell once put it: "[F]ree exercise does not give believers the right to choose for themselves to override the socially-prescribed decision; it allows them to obey spiritual rather than temporal authority...The Free Exercise Clause does not protect the freedom of self-determination...; it does protect the freedom to act in accordance with the dictates of religion, as the believer understands them."
The idea goes back to Madison and the notion that religious believers are subject to two sovereigns--God and Caesar--and that God's claims on our behavior are "precedent both in order of time and degree of obligation, to the claims of Civil Society." Thus, Caesar is "under God." It is the same idea in the Pledge--one Nation under God. See quotation below.
And again, as Prof. McConnell puts it: "The Free Exercise Clause does not protect autonomy; it protects obligation....The concept is based on the view that the relations between God and Man are outside the authority of the state."
For example, what does a PFC in the army do when his General says "charge" and his Captain says "retreat"? Which of these inconsistent orders of senior officers must the private obey? As my friends in the military tell me, the military issue is more complex than a simple statement such as the one above. Suffice it to say, that once the Captain learns that his order is inconsistent with the General's order, the Captain will withdraw his order in recognition of the General's higher authority. Which is exactly what Caesar does under a Free Exercise regime--the Free Exercise Clause instructs the Captain (Caesar) to defer to the higher authority of the General (God).
Here is the money quote from "A Memorial and Remonstrance" by James Madison (1785):
1. Because we hold it for a fundamental and undeniable truth, "that Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence." The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the General Authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no mans right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority.
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