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U.S. won’t budge on Jerusalem, but attorney calls passport ruling ‘full victory’

April 2, 2012 | 10:40 am

Jerusalem, which the U.S. won't to say is in Israel. Photo by Berthold Werner

Jerusalem, which the U.S. won't to say is in Israel. Photo by Berthold Werner

Nathan Lewin didn’t ask the Supreme Court to come out and say directly that Jerusalem is in Israel, or that it is the capital of Israel. He did, however, get the decision he was seeking for 9-year-old Menachem Zivotofsky.

The prominent constitutional law attorney represents Zivotofsky’s parents, who sued the U.S. government after the State Department refused to issue their son a passport listing “Jerusalem, Israel” as his birthplace, rather than only “Jerusalem.” Lewin said in an interview with JointMedia News Service that the Supreme Court’s March 26 decision, stipulating that federal courts of Jerusalem-born Americans can determine the consitutionality of listing “Israel” as their birthplace on U.S. passports, was a “full victory” for the Zivotofsky family.

That “victory” may not seem so obvious at first, given that the Supreme Court did not make a final decision on the constitutionality of a 2002 law the State Department cited when denying the Zivotofsky family’s passport request, instead sending the case back down to lower courts for rehearing on that matter. Thus, the decision “does not and did not decide whether Jerusalem is in Israel or is the capital of Israel,” Lewin said.

Lewin, however, noted that the Supreme Court’s decision was exactly what he was seeking—he had asked the court only to decide whether or not the lower court’s previous refusal to hear the Zivotofsky case had been correct. The lower court had said it deemed the matter “a political issue.” The Supreme Court, by an 8-1 vote, now ruled that it “would be assisted by opinions of the lower court” and said the question of birthplace designation in U.S. passports “was not political.”

“The court’s decision clarifies the political question doctrine used by courts to avoid cases they don’t want,” Lewin said.

Lewin said the Zivotofsky case demonstrated “that there is a lot to be said” with regard to the issue of Jerusalem being recognized as a city in Israel, despite not reaching a final resolution on the matter.

Similar legal shifts cannot be found these days in the State Department, where a recent press release said that Secretary for Public Diplomacy and Public Affairs Kathleen Stephens will visit the Middle East, specifically to “Algeria, Qatar, Jordan, Jerusalem, and Israel,” thus identifying Jerusalem and Israel as separate entities. The wording was eventually changed to “Jerusalem and Tel Aviv,” but when pressed for a clarification on Jerusalem’s status, State Department Spokesperson Victoria Nuland said the issue will “be resolved through negotiations” and that the U.S. will not “prejudge the outcome of those negotiations, including the final status of Jerusalem.”

U.S. passport. Photo by Robert Rexach

In a statement addressed to JointMedia News Service, a State Department spokesperson said regarding Zivotofsky’s passport that “we do not comment on ongoing legal proceedings,” then did comment on the U.S. government’s Jerusalem policy, saying: “U.S. citizens born in Jerusalem may not have ‘Israel’ listed in their passports as their place of birth, [a policy] consistent with our longstanding, clear policy on Jerusalem, which is the same approach taken by prior U.S. Administrations.”

“We believe that through good-faith, direct negotiations, the parties should agree on an outcome that realizes the aspirations of both parties for Jerusalem and safeguards its status for people around the world,” the spokesperson said.

Lewin—a Polish-born, Harvard-educated lawyer who has worked for the State Department and was deputy assistant attorney deneral in the Department of Justice—has been in practice over 45 years and has argued before the Supreme Court approximately 30 times. Several of his cases have focused on issues of freedom of religion or religious practice affecting the Jewish community.

In its decision on Zivotofsky, explained Lewin, the Supreme Court “raised a second question, asking whether it was constitutional for the ‘stateless person’ to have the option of listing ‘Israel’ in his passport.” Doing so, he said, “went back to precedent and power of recognition.” As a result of the decision, the matter has now been returned to the Court of Appeals for the District of Columbia Circuit for argument.

The initial question concerning the Zivotofsky case was whether the Supreme Court would consider it important enough for consideration. Once the court took the case, Lewin said he “felt confident on the political issues.” With regard to the constitutional question, “there is more to be said,” according to Lewin. “I cannot be as sure of the outcome,” he said.

It is Congress that has the power to tell the Secretary of State what the law is regarding Jerusalem’s status, said Lewin. The action of the court, he said, “will not cause conflagrations or upset foreign policy.”

“Menachem is very proud of being born in ‘Jerusalem, Israel’—not in ‘Jerusalem,’ which according to the State Department is not part of any country,” Lewin said. Recording “Jerusalem, Israel” in his passport is “a declaration of what they believe to be true,” the attorney said of Menachem’s family.

Lewin explained that, “the State Department says, while we allow a citizen to self-designate, we don’t agree and say Jerusalem is not a part of Israel.” He understands the need to “give the State Department enough leeway,” noting that there have been “sympathetic voices” agreeing that “Jerusalem, Israel” should be the designated birthplace listing.

“I am confident that by the time of his bar mitzvah, Menachem will have a passport that says Israel,” Lewin said.

The Supreme Court’s March 26 decision “should not lead either side to be overconfident,” attorney Floyd Abrams, a well-known constitutional law expert, told JointMedia News Service.

There is “no doubt” that important barriers to Lewin’s ability to achieve the victory of legalizing “Jerusalem, Israel” on Zivotofsky’s passport were “wiped away by the [Supreme] Court’s ruling,” according to Abrams.

However, Abrams said, the question of whether Congress has the right to make a law that opposes the position of both the executive branch and the State Department remains.

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