Michael Fairman Sues his Chiropractor — in Part to Legitimize the Independent Scientology Movement?

by Tony Ortega

December 6, 2011

Michael Fairman, giving an interview to Mark Bunker for his documentary, Knowledge Report

We’ve said it before: Michael Fairman is one of our favorite former members of the Church of Scientology, and someone we’ve talked to quite a few times in recent months.

We were caught by surprise Sunday, however, when TMZ reported that Fairman, a familiar character actor and soap star, is suing his former chiropractor, claiming religious discrimination.

Earlier this year, Fairman announced that he had been excommunicated from the Church of Scientology. His chiropractor, an active Scientologist, then sent out a notice to Fairman and his wife that they were no longer welcome as patients. Fairman’s lawsuit points to California law, which says that chiropractors are among the businesses that cannot discriminate on the basis of religion.

Fairman didn’t return my phone call yesterday, which was a first — but I’ve been told that on the advice of his attorney, he can’t talk about the lawsuit.

I know enough about Fairman’s back story, however, and about the former Scientology executive he mentions in the lawsuit — Marty Rathbun — to know that this lawsuit is about more than the pain and suffering of being rejected by a neighborhood spine twister.

It also appears to be about legitimizing the independent Scientology movement.

First, as to the merits of his lawsuit. I asked Scott Pilutik to look over Fairman’s complaint and give me his thoughts. Pilutik is a Manhattan attorney who has watched Scientology closely for more than a decade, and who is often called upon to explain and interpret complex church legal cases for the Scientology-watching community at large.

He looked over the particulars of the complaint, which allege that since 2003, Fairman has been a patient of Charlene Thorburn and her business, Thorburn Chiropractic and Wellness Center in Burbank. Thorburn, the court document says, is an active Scientologist. Fairman himself has been a Scientologist since at least the early 1980s, and for a time was even the “face” of the religion, appearing on Scientology’s promotional films and television commercials.

In April, Fairman revealed publicly that he’d been declared a “suppressive person” by the church — excommunicated, in other words — because he had been spending time with former top Scientology executive Marty Rathbun. He reveals in the complaint that it was in January that he “became concerned about the manner in which the doctrines of the Church of Scientology were being applied” when he sought out Rathbun.

Fairman was subsequently declared an SP even though he, his wife Joy Graysen Fairman, and his daughter Sky Fairman, were still continuing “to use many of the teachings” of Scientology founder L. Ron Hubbard.

With Fairman and his wife leaving the church, “family, friends, and business associates who are Scientologists disconnected from them.”

Here at the Voice, we’ve written extensively about the way Scientologists who change their minds about the church are declared “suppressive,” and then all church members of good standing are required to cut off all ties from them in what is called “disconnection” — even if it means a mother turning her back on a son or daughter.

On October 1, Michael and Joy received a letter from Thorburn which said, “I will no longer be your treating Chiropractor effective 10 days from the date of this letter.” (I called Thorburn’s office yesterday and reached “Jobee,” the receptionist mentioned in the complaint. She took my number, saying she’d have Thorburn call me back.)

The Fairmans had heard earlier from another Scientologist, their dermatologist, Lisa Benest, that she was dropping them as patients, and they believe Benest advised Thorburn to do the same. (I have not received confirmation but suspect that a similar lawsuit will be filed against Benest.)

Fairman had not seen Thorburn for an appointment since 2008, but according to the complaint Joy saw the chiropractor regularly. And after receiving the letter, she called the Thorburn clinic to ask why they were being dropped but got no reply from Thorburn. The Fairmans then requested that their medical records be sent to them, but have heard no response.

The Fairmans are suing for unspecified damages, saying that Thorburn clearly dropped them as clients for religious reasons, which is a violation of California Civil Code sections 51 and 52 (the Unruh Civil Rights Act).

I asked Scott to assess the merits:

I think it’s a real good discrimination complaint, and I’m glad to see it’s been filed, as this sort of conduct has gone on for years without any penalty to the Scientologist discriminators. The California Civil Rights Act unambiguously makes all California “businesses” common carriers and prohibits them from discriminating on the basis of race/sex/religion/etc. Since Thorburn is a business and since the Fairmans allege discrimination as the basis for Thorburn’s refusal to treat, I think it should survive a motion to dismiss. It’s not a common discrimination complaint (for factual precedents I might look to lawsuits between warring Hasidic factions) but it appears to fulfill the criteria.

The most obvious legal question I can see is going to what basis Thorburn terminated its relationship with the Fairmans, as there’s only circumstantial evidence offered up at this stage, but I imagine it’s going to be very difficult for Thorburn to come up with a basis that doesn’t reek of a post-hoc pretext to avoid the real reason, about which I have little difficultly assuming the Fairmans are right (is there really any doubt though? Again, this sort of discrimination has been going on for decades without reprisal).

Thorburn will be hard pressed to allege that the termination was due to some other basis because other Thorburn employees can be interviewed and it’ll be near-impossible for them to get their pretext stories all straight. It also doesn’t help Thorburn that the termination letter was sent to both Michael and Joy, meaning that the basis — whatever they come up with — would have to explain why she can’t treat them both; it might be easier to come up with an explanation that Thorburn had, say, a personal falling out with one or the other.

The other way Thorburn’s defense might go is to say, “Yeah, I discriminated but only because the First Amendment grants me the religious freedom to discriminate. Disconnection is an important Scientology doctrine and the law cannot force me to be exposed to suppressive persons because it would harm my case and threaten my eternity.” Which isn’t that unlike the argument relied upon by Christian pharmacists who refuse to prescribe the morning-after pill. The problem for Thorburn, if she chooses to go this route, is that the Fairmans aren’t just SPs but also members of a protected religious class as Independent Scientologists. A judge will be wary of the case coming down to picking a winner between two religious groups; and especially if it means picking the one clearly violating the law.

For a long time I’ve promoted the idea of an Independent Scientologist suit against the IRS for disparately favoring Church of Scientology auditing deductions over Independent Scientologist auditing deductions (assuming the IRS rejected the latter), so I’m pleased to see the Fairmans take a similar route in alleging discrimination by a Church of Scientology member. Perhaps this will open the minds of other Independent Scientologists and prompt creative ways to legally redress the legal benefits uniquely and unfairly bestowed upon the Church of Scientology and its members only.

Well, that’s a densely packed final paragraph from Scott, but we have, indeed, discussed this before — the fact that members of the Church of Scientology enjoy special status with the federal government which allows them to deduct the cost of their auditing.

This was challenged by a Jewish couple who felt that they should be able to deduct the cost of religious schooling for their children under the same principle. Their case lasted 15 years, until the Supreme Court declined to hear it in 2009, preserving the special deduction only for Scientologists.

But if Scientologists enjoy special status, then why shouldn’t that status also be enjoyed by independent Scientologists, who also ascribe to L. Ron Hubbard’s ideas, do similar auditing, and would probably also like to deduct the cost of that auditing from their taxes? If a court agreed to that, it would give independent Scientologists a boost — and nothing, seriously nothing, would irritate church leader David Miscavige more, we figure.

Now, Fairman has found a similar test in a simpler setting. Taking nothing away from his discrimination claim, which is pretty basic — either Thorburn cut Fairman off because he was declared an SP or she didn’t — it’s no accident, it seems to me, that Rathbun is mentioned in the lawsuit, as well as this line from page 9…

Defendants Thorburn Chiropractic and Dr. Thorburn unambiguously discriminated against Plaintiffs for the express reason that Plantiffs are members of a class of persons who practice their religion, including Scientology, but not Scientology as applied by the Church of Scientology — and for that reason they are protected by the Unruh Civil Rights Act.

And there’s another reason why I think the “independent” angle is, for the Fairmans, an important part of this case: just days before this lawsuit became public, Fairman made a very public (and oddly timed, I thought then) declaration that he was now definitely back with Rathbun in the “indie” scene after previously walking away from it.

Fairman had seemed like a pretty typical case: after coming out of the church, he was outraged at the way it is currently being run by leader David Miscavige, as you can see from an interview we did with him in April. Like others who have been leaving the church in droves in the last few years, he walked away from the organization but not the ideas in it. Such “independents” — many of them rallying around Rathbun — continue to audit and otherwise practice Scientology outside the official confines of Miscavige’s organization.

And, like some others who come out as indies, Fairman then also gradually dropped Hubbard’s ideas and put away Scientology itself.

Then, on Friday, at Rathbun’s blog, Fairman published a statement, saying that he was back in the indie fold.

“I never wanted to look an e-meter in the face again because of what a drudge it had become,” he writes, explaining that after initially enjoying his time with Rathbun last year, he had gradually put away Hubbard’s technology. But then, recently, he decided to give it another shot, and planned another trip to see Rathbun.

“I decided on one more go-around with ‘the Tech’ and made plans for a trip to Texas,” he writes. And now, he’s back to the Hubbard way of thinking: “Those who disparage Hubbard’s technology, for whatever reason, no longer have any significance for me.”

Now that the lawsuit has been made public, the timing of Friday’s statement makes a lot more sense.

Having declared that he’s still an independent Scientologist, Fairman will ask a court to decide that David Miscavige’s church cannot discriminate — using its notorious disconnection policy — against Scientologists who have left the official church.

And this could get very interesting.

Tony Ortega is the editor-in-chief of The Village Voice. Since 1995, he’s been writing about Scientology at several publications.

@VoiceTonyO | Facebook: Tony Ortega

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