After a firestorm of criticism aimed at a new religious-freedom law,Indiana legislative leaders are heading back to the drawing boardto clarify the law so that it cant result in discrimination, including denial of services to gays and lesbians.

Supporters of gay rights have denounced the law, which sets a legal framework for people to challenge government laws that hinder their practice of religion. Some have argued that the law would allow businesses, like bakers and florists and others that cater to weddings, to decline to work with gays and lesbians.

Does the law as already passedmake it easier for businesses or individuals to discriminate against gays and lesbians?

Lets try to unpack this.

I. The Federal Religious Freedom Restoration Act

The Indiana law and similar laws adopted by 19 states are modeled on the Religious Freedom Restoration Act, a 1993 federal law introduced in the House by then Rep. Chuck Schumer and signed by then-President Bill Clinton.

The RFRA essentially said laws that substantially burden a persons exercise of religion shall not stand, unless the government can show that the burden is necessary in order to further a compelling governmental interest and that achieving that interest is done in the least restrictive way possible. That legal standard is known as strict scrutiny.

Legal experts say that the federal law was enacted in response to a1990 ruling by the U.S. Supreme Court calledEmployment Division v. Smith. The court upheldOregons refusal to give unemployment benefits to two Native Americans fired from their jobs at a rehab clinic after it was found they had smoked peyote in a religious ceremony. In that case, the court did not apply strict scrutiny.

In other words, the original federal RFRA had little to do with gays and lesbians. It has more with shoring up protections for those less widely practiced religions whose unusual rituals, like smoking peyote during ceremonies, might otherwise be rendered illegal.

II. State Religious Freedom Restoration Acts

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Unpacking Indianas Religious Freedom Law