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Jewish Journal

Supreme Court rules federal courts can consider Jerusalem passport issue

by James Vicini, Reuters

March 26, 2012 | 2:06 pm

Photo courtesy of U.S. Military

Photo courtesy of U.S. Military

American parents of a boy born in Jerusalem can go to court to argue that their son’s U.S. passport can list Israel as his birthplace, the U.S. Supreme Court ruled on Monday in a setback for the U.S. government.

Since the founding of Israel in 1948, successive American governments have declined to recognize any country as having sovereignty over Jerusalem, which is home to the holiest sites in Judaism and Christianity and to the third holiest site in Islam.

The State Department, applying long-standing U.S. policy, insisted that nine-year-old Menachem Zivotofsky’s birth certificate, and thus his passport, show Jerusalem - with no country specified - as the place of birth.

It rejected his mother’s request that it also list Israel.

The parents, Naomi and Ari Zivotofsky, filed a lawsuit in 2003 challenging this in federal court in Washington, D.C., basing their argument on a 2002 American law, passed just before Menachem was born.

This law included a provision allowing Israel to be listed as the place of birth on the passport of any American born in Jerusalem.

A Federal judge and then an appeals court dismissed the lawsuit on the grounds that judges have no authority to order the federal government to change U.S. foreign policy.

LOWER COURTS ‘MISUNDERSTOOD ISSUE’

However on Monday, the Supreme Court ruled that lower courts had misunderstood the issue and said the case was merely whether Zivotofsky could have the right “to have Israel recorded on his passport as his place of birth.”

“Zivotofsky does not ask the courts to determine whether Jerusalem is the capital of Israel,” Chief Justice John Roberts said in an opinion. Justice Stephen Breyer dissented.

Previous U.S. Presidents George W. Bush and and current President Barack Obama both refused to follow the 2002 law on the grounds that the U.S. Congress unconstitutionally infringed on the president’s power to formulate foreign policy.

Nathan Lewin, a Washington D.C.-based attorney who represented the Zivotofsky family before the Supreme Court, said Congress had the power to control a passport’s contents.

The ruling could affect approximately 50,000 American citizens who have been born in Jerusalem, giving them the option of listing Israel as their birthplace.

Zivotofsky was born on Oct. 17, 2002, in a hospital in west Jerusalem. His U.S.-born parents moved to Israel in 2000. Because his parents are U.S. citizens, Menachem is also a U.S. citizen.

While Israel calls Jerusalem its eternal and indivisible capital, few other countries accept that status. Most, including the United States, maintain their embassies to Israel in Tel Aviv.

Palestinians want East Jerusalem, captured by Israel in 1967, as capital of the state they aim to establish in the West Bank and Gaza Strip, alongside Israel.

The Supreme Court case is Zivotofsky v. Clinton, No. 10-699.

Additional reporting by Jeremy Pelofsky; Editing by Howard Goller and David Brunnstrom

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