Politics or policy?

Politics or policy?

High court hears potentially far-reaching Jerusalem passport case

Ari Zivotofsky and his son Menachem speak to the press outside the U.S. Supreme Court on Nov. 8 after justices heard oral arguments in the case the family brought. Richard Greenberg

WASHINGTON – The U.S. Supreme Court on Monday pondered 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, U.S. citizens 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 U.S. citizens 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 in the case is not expected for several months. The justices, by their questioning, seemed to suggest that they had come into the oral arguments stage leaning toward a decision in favor of the administration, albeit with reservations.

The debate before the high court focused on several key issues, including which branch of government has the authority to conduct foreign policy, and whether the appearance of the word “Israel” on a passport is 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 citizens of the United States 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 is the named respondent in the Zivotofskys’ litigation, because she 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 U.S. citizens have rightly served to maintain Washington’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 response 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 the administration, Solicitor General Donald Verrilli acknowledged that the U.S. position from 1948 to the present day 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 U.S. 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 example 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.

Following Monday’s oral-argument session, which lasted for about an hour, 48-year-old Ari Zivotofsky, a neuroscience instructor at an Israeli university, stood on the court steps outside answering reporters’ questions. His son, Menachem, was busy trying to shun the limelight, his face nearly buried in his father’s side.

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.”

JTA/Washington Jewish Week

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