Is Jerusalem in Israel? Supreme Court hears passport case

Ari Zivotofsky and his son Menachem speak to the press outside the U.S. Supreme Court Nov. 8. (Richard Greenberg)

The U.S. Supreme Court convened Monday to ponder the implications of a single word that is conspicuously missing from the passport of a 9-year-old boy who was born in Jerusalem.

His name is Menachem Binyamin Zivotofsky, the son of Ari and Naomi Siegman Zivotofsky, Americans who made aliyah in 2000.

Menachem was born at Shaare Zedek Hospital in western Jerusalem, but due to a controversial State Department policy, his U.S. passport does not designate “Israel” as his place of birth — despite a federal statute enacted in October 2002 that says Americans born in Jerusalem are entitled to have Israel listed on their official papers as their birth country.

The Zivotofskys want that law enforced so their son can claim what they feel is his birthright — the inclusion of the word “Israel” on his passport, a statement “that the land of Israel has centrality for the Jewish people,” the boy’s father, Ari Zivotofsky, told reporters after Monday’s court session.

“It’s a very personal issue,” he said.

A decision on the case is not expected for several months.

The arguments and counterarguments presented Monday before the high court focused on several key issues, including which branch of government has the authority to conduct foreign policy and whether or not the appearance of the word “Israel” on a passport is in fact tantamount to an expression of foreign policy.

It is not, argued attorney Nathan Lewin, representing the Zivotofskys. “It is purely a means of identification,” he explained in response to a question from Justice Elena Kagan.

The petitioners maintain that Menachem Zivotofsky is one of an estimated 50,000 Jerusalem-born American citizens who have been unfairly barred from listing their place of birth as “Jerusalem, Israel,” rather than simply “Jerusalem.”

The federal statute that grants those passport holders the right to essentially identify their place of birth as they see fit has been ignored by the administrations of both George W. Bush and Barack Obama, with Bush claiming that it infringes on the president’s authority to formulate foreign policy positions, such as the administration’s stance on the status of Jerusalem.

Secretary of State Hillary Rodham Clinton, the named respondent in the Zivotofskys’ litigation, heads the chief foreign policy arm of the executive branch. She has argued that the State Department’s regulations governing the passport designation of Jerusalem-born American citizens have rightly served to maintain U.S. neutrality on the sensitive issue of sovereignty over Jerusalem. The Zivotofskys contend that the policy is biased against Israel and against Jews who have a religious attachment to the land.

“Congress recognized that with regard to the 50,000 people who have a passport that says ‘Jerusalem,’ they are being denied a certain sense of self-respect that they feel they should be able to have in terms of their own identification,” Lewin told the court in reponse to a question from Justice Samuel Alito. “This is not a statute that is designed to create some political brouhaha or make a foreign policy statement.”

Arguing on behalf of Clinton, Solicitor General Donald Verrilli acknowledged that the position of the administration is that the status of Jerusalem is disputed, and he added: “A passport is not a communication by the passport holder. It’s an official United States document that communicates the position of the United States.”

In response to a challenge from Chief Justice John Roberts, Verrilli added: “I do think that this is an area in which the executive’s got to make the judgment because it’s of paramount importance that the nation speak with one voice.”

The executive’s handling of the Jerusalem issue, Verrilli told the justices, “is a very sensitive and delicate matter. This position was arrived at after very careful thought and it is enforced very carefully.”

The State Department has contended, according to the petitioners, that if American citizens who are natives of Jerusalem are permitted to self-identify as being born in “Israel,” that would create the misperception among Arab states that official U.S. policy on the sovereignty of Jerusalem had changed, which in turn could have serious foreign policy repercussions. The Zivotofskys, however, maintain there is no evidence that would happen.

Further exploring that issue, Kagan posed a hypothetical in an exchange with Verrilli. Suppose, she said, the law governing passports included a disclaimer that stated: “The recording of Israel as a place of birth on a passport shall not constitute recognition of Israel’s sovereignty over Jerusalem.”

“Would that be constitutional?” she asked.

Probably not, Verrilli responded.

Monday’s oral-argument session, which lasted for about an hour, was witnessed by a capacity crowd that included a sizeable contingent of spectators with head coverings.

Among them was David Poltorak, a 27-year-old law school graduate who lives in Washington.

“This is about the very essence of separation of powers,” he said prior to the start of the hearing.

“I’m not convinced that the president has the right to just not heed a law that’s been passed.”

Although Poltorak conceded that there are compelling legal arguments on both sides of the issue, “as a Jew,” he said, he was pulling for the Zivotofskys.

Following the hearing, on the sun-drenched courthouse plaza, Ari Zivotofsky, 48, a bearded and kippah-wearing neuroscience instructor at an Israeli university, was answering reporters’ questions. His son, Menachem, was busy trying to shun the limelight, his face nearly buried in his father’s side so that little more than his knit kippah was visible.

It was his first visit to the United States. Asked about his impressions of America, Menachem said quietly:”It’s bigger than I thought … but it’s not as fun as I thought it would be.”