American parents often have children while living in other countries. Those children are by all rights American citizens. Their U.S. passport will show the foreign country as the place of birth, unless it is Jerusalem. The Supreme Court has discussed the issue of American born in the holy city before. But, the U.S. Supreme Court is taking up the issue once again tomorrow and presumably deciding whether people born in Jerusalem can claim Israel as the country of birth on their passport.
The case in question involves 12-year-old Menachem Binyamin Zivotofsky. The boy’s passport has been a bone of contention for most of his 12 years. His parents applied for a passport and “consular report of birth abroad” when he was 2 month’s old. They wanted the passport to say “Jerusalem, Israel” or just “Israel.” They refused to accept “no country” as the entry on the passport.
Since then, the child was 11 months old, their case has been up and down the federal court system. The courts ruled that they lacked standing on what was essentially a political issue.
Now, Menachem and his U.S.-born parents have wanted the Supreme Court to uphold a law Congress passed in 2002 that allows Americans who are born in Jerusalem to list Israel as their country of birth on their passports. Since then, Republican and Democratic administrations have refused to enforce the law on the belief that it conflicts with U.S. policy that does not recognize any nation’s control over Jerusalem.
To avoid deciding something that could become an international crisis, U.S. policy is to list Jerusalem as if it is a city/state since the creation of Israel in 1948. At that time, Jerusalem was divided in two and a disputed territory. Israel captured East Jerusalem in the 1967 war, and the city became even more of a lightning rod for religious tension and political strife.
Since then, the State Department policy has been to benignly list Jerusalem as the place of birth on passports for people born there. Their manual specifically states, “Do not write Israel, Jordan or West Bank for a person born within the current municipal borders of Jerusalem.” The rule is based on the belief that allowing Jerusalem-born passports to list Israel as the country of birth would be regarded internationally as a taking sides on the peace process and a reversal of U.S. policy on Jerusalem.
However, with Congressional backing, the Zivotofskys have charged that the policy on passports is “unjust and discriminatory.” They maintain that changing it would not affect America’s foreign policy or finding a peaceful solution in the Middle East.
Lower courts called the matter a political question for Congress and the president to resolve, not a legal matter. When the suit first reached the Supreme Court in 2012, Chief Justice John Roberts crafted an opinion for the majority that rejected that stance. His opinion expressed belief that the courts could capably determine whether the statute should take “effect, or instead must be struck down in light of authority conferred on the executive by the Constitution.”
When the case then went back to the federal appeals court, the court struck down the law as unconstitutional since it intrudes on the president’s authority in matters of foreign relations. That sent the bouncing ball of the Zivotofskys’ lawsuit back to the Supreme Court, because it generally has the last word when an appeals court invalidates a federal law. So, on Monday morning, the U.S. Supreme Court will hear oral arguments in the suit, which could result in the judges deciding if Jerusalem is indeed in Israel.
By Dyanne Weiss