Supreme Court—birthplace on passport is not political

Yesterday’s 8-1 U.S. Supreme Court decision determined that having Jerusalem, Israel on a citizen’s passport could be decided in federal court.

The opinion in Zivotofsky vs. Clinton, lauded by the Orthodox Union and the World Jewish Congress, overturned an earlier lower court statement that courts could not decide the case citing it as a political issue involving a foreign policy disagreement between Congress and the President.

NY-6 Congressional candidate Rory Lancman, Rabbi David Algaze and local Jewish leaders gathered in front of Congregation Havurat Yisrael in Forest Hills to call on the State Department to abandon its policy of pretending that Jerusalem isn’t a part of Israel. In light of the Supreme Court’s rejection of the State Department’s argument, Lancman, Algaze and other leaders called on the federal government to simply comply with the law and allow parents to include Israel as the place of birth for American children born in Jerusalem.

Jerusalem was divided between Israel and Jordan in 1947 and reunited and annexed by Israel following the Six Day War in 1967. Congress passed a law in 1995 that the United States should recognize united Jerusalem as the capital of Israel. In 2002, Congress passed a law allowing Americans born in Jerusalem to list Israel as their country of birth.

In December 2002, Naomi and Rabbi Ari Zivotofsky, olim from West Hempstead, applied for a U.S. passport for their son, Menachem Binyamin Zivotofsky, born in October 2002, and to record his birthplace as Jerusalem, Israel. U.S. diplomats said that “Israel” could not be included with “Jerusalem.” The Zivotofskys sued the Secretary of State but courts decided that the issue was a political question that could not be decided in court, saying that it would amount to taking sides in the dispute between Israel and the Palestinians.

Chief Justice Roberts said, “Zivotofsky does not ask the courts to determine whether Jerusalem is the capital of Israel. He instead seeks to determine whether he may vindicate his statutory right…to choose to have Israel recorded on his passport as his place of birth.” He sent it back to the lower courts for opinions on its “merits,” but said it was not a political question and thus could be judged in the courts.

“The Jewish connection to Jerusalem and Jerusalem’s place within Israel are both historic and holy,” said Nathan Diament, Executive Director for Public Policy for the OU. “The Congress has recognized this through several duly enacted statutes, including the one involved in today’s court case. “ Ronald S. Lauder, WJC president, noted that, “though these statutes have not been enforced by successive administrations under pressure from Arab countries, the decision clearly recognizes the Congressional policy on Jerusalem.”

“The State Department’s refusal to enforce the law not only denies families the proper documentation of their child’s birthplace, but by extension validates misguided Palestinian claims that Jerusalem is not the capital of Israel,” Lancman said.

“Although the Supreme Court reviewed the constitutional issue and not the merits of the case, this decision presents an important ruling,” said Eva Hefter, Esq. “For Menachem Zivotofsky, now 9 years old, the case is not over. Since the lower courts never reached the merits of the claim, the case was remanded by the Supreme Court to be decided by the lower courts. That future decision will be an important landmark for children born in Israel to American parents. For international political observers of the Arab-Israeli conflict, any hint of sympathy is likely to be interpreted as support for one side over the other. Nevertheless, the U.S. Supreme Court has spoken. Its decision is bound to have a significant ripple effect.”