After twice refusing to hear the case, the United States Supreme Court has agreed to hear Zivotofsky v. Secretary of State, Case No. 13 628. This case will decide the constitutionality of a 2002 law that directs the U.S. State Department to designate Israel as the country of birth on both passports and birth certificates of U.S. citizens born in Jerusalem.
When Menachem Binyamin Zivotofsky was born in Shaarei Zedek Hospital in west Jerusalem in 2002, his American parents invoked the new law and asked that their son’s place of birth be listed as Jerusalem, Israel. The State Department refused, claiming that the new law was unconstitutional and infringed on the President’s authority to recognize foreign sovereigns. The family sued, and the case has been in U.S. courts for a decade.
At issue now are the questions of separation of powers between the U.S. executive and legislative branches, and whether the President has exclusive authority to conduct U.S. foreign relations. The Obama administration argued in a 2011 hearing on this case that listing Israel as the country of birth for U.S. citizens born in Jerusalem would be “tantamount to recognizing Jerusalem as the capital of the country.” Identifying the city of Jerusalem as “disputed territory,” the U.S. is claiming a “neutral” stance by refusing to identify Jerusalem as a city in Israel, pending final status peace negotiations between Arabs and Israelis.
Israeli law proclaims Jerusalem the capital of Israel. U.S. law recognizes Jerusalem as the capital of the sovereign state of Israel. The Jerusalem Embassy Act of 1995 (U.S. Public Law 104 45), affirms U.S. policy that Jerusalem remain an undivided city, and requires the U.S. Embassy in Israel be moved to Jerusalem (although the embassy has not yet been moved). Congress made explicit its reasoning for this law, stating that sovereign nations, under international law and custom, may designate their own capitals; recognizing that Jerusalem is the seat of Israel’s President, Parliament, Supreme Court, government ministries, and major social and cultural institutions; and acknowledging that the U.S. maintains its embassy in the functioning capital of every country in the world, except its “democratic friend and strategic ally, the State of Israel.”
According to the attorneys representing the Zivotofsky family (Lewin & Lewin LLP), the U.S. State Department has set a precedent for listing political areas that are not sovereign states as birth places on passports and birth certificates. The State Department allows U.S. citizens to remove any reference to Israel on their passports. U.S. citizens may request their place of birth be recorded as “West Bank,” “Gaza Strip,” or “Palestine” (for those born before 1948). Furthermore, U.S. law allows Americans born in Taiwan to list “Taiwan” as the “country of birth” even though the U.S. does not recognize Taiwan as a foreign sovereign state, but rather as a part of the People’s Republic of China.
“Israel should insist that the US recognize the right of this one nation to choose its own capital, a right the U.S. administration has granted as part of normal diplomatic relations to all other countries,” declared Jeff Daube, Israel Office director of the Zionist Organization of America (ZOA), which has been advocating for the Zivotofsky family.
Scheduled for hearing this fall, a decision is expected by June 2015.
Written by: Aviva Adler, exclusive to United with Israel