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US Supreme Court to Resume ‘Jerusalem, Israel’ Passport Hearing

November 6, 2011

The U.S. Supreme Court will hear arguments Monday for a Jewish boy born in Jerusalem to have his birthplace in Israel’s sovereign capital listed on his U.S. passport.

The case, Zivotofsky v. Clinton, No. 10-699, began with a lawsuit filed in 2003 by Menachem Zivotofsky’s parents, Naomi and Ari.

The couple was incensed when the U.S. State Department refused to allow them to list “Israel” as the boy’s country of birth.

They were instead told that State Department policy requires that only “Jerusalem” be recorded as the place of birth for children born in Israel’s capital, because the United States does not recognize any country as having sovereignty over the city.

The Zivotofskys immediately went to federal court in Washington, D.C. over the passport rule, which insisted on neutrality for Jerusalem.

The judge dismissed the case because, he said, it involved a political issue beyond the judiciary’s power. Upon appeal, a second judge agreed, saying the judicial branch of government cannot order the executive branch to change foreign policy.

Undeterred, the couple has taken the case all the way to the Supreme Court.

Acting Attorney-General Neal Katyal has argued in the Supreme Court that “the status of Jerusalem is one of the most sensitive and long-standing disputes in the Arab-Israeli conflict,” according to Reuters. Katyal contended that the executive branch maintains sole power to decide the policy on passports for U.S. citizens born in Jerusalem, as this is an issue of foreign affairs.

Politico columnist Ben Smith observed over the weekend, “This is, legally, a fight over Congress’s power over the Secretary of State. Symbolically, it’s a back door into one of the charged, “final status” issues of the moribund Israeli-Palestinian peace procese (sic)…”

Smith noted that the stakes are “high, and so small things matter” – including things like the White House erasing the word “Israel” from a photo caption that originally had read “Jerusalem, Israel.” The columnist further investigated to see if the claim was a fluke, but discovered to his surprise, “the Obama effort to scrub it from past documents may be, as White House spokesman Matt Lehrich told Adam Kredo, of that first altered caption, in keeping with ‘U.S. policy for more than 40 years,’ but it also reflects a new level of interest in keeping that policy absolute.”

The hearing on Zivotofsky v. Clinton No. 10-699 resumes Monday. It is expected that the Court will reach a ruling during its current term.

The Palestinian Authority continues to claim a significant portion of Jerusalem – all of the areas restored to Israel’s capital during the 1967 Six Day War, in fact – to create a capital city for its own hoped-for independent state of Palestine.

Refusing to negotiate a final status settlement with Israel, the PA attempted a shortcut and tried to circumvent talks by applying to the United Nations for full membership and recognition as a sovereign state. The U.N. Security Council is due to vote on the matter November 11.

The United States has vowed to exercise its veto as a permanent member of the Council if the resolution is not voted down. France has said it will abstain in the vote.

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