Suit: U.S. Discriminates Against Jerusalem in Passport Dispute

Major Jewish groups were set to file legal briefs this week in an upcoming U.S. Supreme Court case with Jerusalem at its core, one that will test anew America’s stated goal of being an honest broker in the Israeli-Palestinian conflict.

The case revolves around the seemingly routine stamping of a passport, but it touches on such issues as control of America’s foreign policy, the Middle East peace process, the enforcement of existing American law and Israeli sovereignty over Jerusalem.

The case, which the high court is expected to hear in the fall, comes as the Palestinians prepare to seek United Nations recognition as a state with Jerusalem as its capital, and as the U.S. is seeking to convince Israelis and Palestinians to resume peace negotiations.

At issue is the right of Naomi Zivotofsky to insist that the American passport she requested for her son Menachem from the U.S. Embassy in Tel Aviv list “Israel” as his place of birth. He was born in Jerusalem in October 2002, about three weeks after President George W. Bush signed a bill directing the State Department to list “Israel” on the passports of American children born in Jerusalem if their parents requested it.

But the State Department denied the request, citing Bush’s comments at the bill signing in which he said the law “impermissibly interferes with the president’s constitutional authority to conduct the nation’s foreign affairs…”

Menachem’s parents, Naomi and Ari Zivotofsky, are both American citizens and they sued the State Department the following September to compel it follow the law.

“When we received the passport we were not surprised because they had pretty much stated [the place of birth would be listed as Jerusalem] when we filled out the form,” Ari Zivotofksy said in an e-mail. “Even though we insisted to the clerk that it was now the law that they can write Israel, they insisted otherwise. We were thus disappointed, but not shocked. … We are gratified that this matter has captured the attention of the Supreme Court, and pray that the Court will reject the State Department’s effort to overrule Congress.”

The Supreme Court’s decision is expected to affect an estimated 50,000 Americans who were born in Jerusalem.

Menachem’s grandparents, Bernie and Gitta Zivotofsky, are residents of West Hempstead, L.I. Bernie noted that his grandson “caught wind of the case just recently” when he heard other students talking about it in school. He said Menachem has not yet visited the United States, and that when he pointed out to him that his older brother and sister — who were born in the U.S. — have visited, the child replied: “Well, they weren’t born here.”

“National pride has gotten to him,” Zivotofsky said. “He understands what is happening; he is a proud Israeli.”

The Supreme Court said it would consider whether a lower court was right in saying political issues are not subject to judicial review and whether Congress impermissibly infringed on the president’s power to recognize foreign sovereigns.

The government argues that agreeing to such a change now would in effect compel the president to recognize Israeli sovereignty over Jerusalem — “one of the most sensitive and longstanding disputes in the Arab-Israeli conflict” — resulting in major foreign policy ramifications.

But Alyza Lewin and her father, Nathan, who are representing Menachem, said in court papers filed last Friday that the government’s claim is “greatly exaggerated.” They pointed out that the U.S. in 1994 enacted a “virtually identical statute” regarding Taiwan over the vehement objections of China, which claims sovereignty over the island.

“The Department of State altered its earlier rule to comply with the statute and there was no perceptible effect on United States’ foreign policy,” according to their court papers.

At the same time, the brief said, Israel is “a recognized nation that Palestinians and the Arab world have learned to accept. … [The State Department] bars only supporters of Israel — overwhelmingly Jews who have a religious attachment to the land — from identifying their birthplace in a manner that conforms with their convictions.”

The U.S. government must file its brief by Sept. 23; the Lewins’ reply is due Oct. 24.

A number of Jewish organizations, including the Anti-Defamation League, the Zionist Organization of America and the American Association of Jewish Lawyers and Jurists, are submitting “friends of the court” briefs due this week. A number of other groups, including the Union of Orthodox Congregations and the National Council of Young Israel, are signing on to at least one of those briefs. But there is not unanimity in the Jewish community over this issue. Marc Stern, associate general counsel of the American Jewish Committee, said his organization believes “all issues in the Israel-Palestinian conflict have to be settled at the negotiating table and not the U.S. Supreme Court or the UN with unilateral declarations. For that reason we not participating in this case because we think it is inconsistent with our general view that peace will come to the Middle East at the negotiating table and at no other forum.

“It doesn’t mean that we don’t think West Jerusalem isn’t part of Israel,” Stern continued. “We do and we have our office there, and we say it is Jerusalem, Israel. But this is about official declarations, and official declarations don’t come about because somebody goes to court.”

Abraham Foxman, national director of the ADL, told The Jewish Week that he found the passport issue to be “one of the most offensive, harmful and insensitive actions of the American government, which has been tolerated and defended for so many years regardless of what administration was in office.”

“It’s insulting and has been insulting all these years,” he added. “It borders on the irrational, and it is so appealing to the Palestinian narrative and demand. … It’s time it ended. Maybe the court will see the fairness and reasonableness of [this suit] and set it straight.”

Rabbi Pesach Lerner, executive vice president of the National Council of Young Israel, noted that when his 4-month-old Israeli grandson Shlomo prepared to come here to visit for Passover, his parents were also sent an American passport that listed Shlomo’s place of birth as Jerusalem, despite their request that Israel be listed.

“He’s a man without a country, even though both his parents are American and he is an American citizen,” Rabbi Lerner said. “I could be born on the steps of the Knesset and the U.S. government would say [sovereignty over] that land is not yet decided. … We’re not creating policy; it’s a statement of fact. Even in the worst-case scenario, Hadassah Hospital will still be in Israel.”

He pointed out that his organization and the International Israel Allies Caucus Foundation created a website, www.borninjerusalem.org, that asks all Jerusalem-born American Jews to join for free the ad-hoc Association of Proud American Citizens Born in Jerusalem, Israel. Several hundred had joined within a week, Rabbi Lerner said.

She dismissed the argument that the court would be deciding a political question by saying the suit simply asks the court to determine if the law signed by Bush is constitutional.

“If it is, the State Department has to follow it,” Lewin said. “Nobody is asking the court to make any independent political decisions.”

The Lewins in their court papers pointed out also that those born in the West Bank or Gaza Strip may also opt to list those areas as their place of birth even though neither is a “sovereign that the United States has ever recognized.”

In its brief, the ADL pointed out that the State Department’s own manual “acknowledges that the purpose of the place of birth designation in the passport is simply to identify the citizen and distinguish him or her from other citizens with similar names or dates of birth.”

Steve Greenwald, president of the American Association of Jewish Lawyers and Jurists, said his group’s brief would point out that “Congress has specific constitutional power to regulate the issuance of passports, a power that has been recognized by the Supreme Court, and when it acts pursuant to such power in a manner that is constitutionally valid, as it has done in this case, the Executive branch may not act in conflict with the congressional mandate.”

As a result, he said, the State Department “may not disregard or fail to act [regarding] … directives imposed by Congress on the issuance of passports.”


And rather than being a political document, “that implicates foreign policy considerations,” it merely “controls exit and entry from and to the country.”