WASHINGTON, D.C. (Press Release)–On Tuesday, July 22, 2014, the Zionist Organization of America (ZOA) filed a 30-page amicus brief with the U.S. Supreme Court, urging the Court to uphold the right of American citizens born in Jerusalem to have “Israel” listed as their birthplace on their passports, certifications of nationality and registrations of birth. The brief supports Menachem Binyamin Zivotofsky, an American born in Jerusalem who was denied a passport listing “Israel” as his birthplace, in violation of a federal law enacted in 2002.
Zivotofsky filed suit in 2003 to enforce the law, which mandates the State Department to list “Israel” as the birthplace of Americans born in Jerusalem if they request it. The ZOA filed its own legal action to enforce the law in 2003, which was consolidated with Zivotofsky’s. In refusing to enforce the law, the State Department claimed it would interfere with the President’s power to recognize foreign sovereigns, in violation of the U.S. Constitution. (The U.S. has not officially recognized Jerusalem as Israel’s capital.)
This is the second time the Zivotofsky case is before the Supreme Court, and the third amicus brief the ZOA has submitted in support of Zivotofsky. The Court will now be deciding whether the law is constitutional.
In its brief, the ZOA argues that the law is constitutional because enforcing it would have no impact on a presidential recognition power. Passports that list “Israel” in compliance with the law would not link Jerusalem to Israel. No city would be listed on the passports and they could thus belong to Americans born in Tel Aviv or any other city indisputably within sovereign Israel.
The ZOA also argues in its brief that passports listing “Israel” would be no more an articulation of U.S. policy regarding the status of Jerusalem than the statements of the U.S. government itself. The ZOA’s brief provides example after example of how departments, agencies and members of the Executive branch repeatedly refer to Jerusalem as part of Israel, without any impact on the President’s constitutional powers. It is thus difficult to conceive of how passports listing “Israel” would have any such impact.
When the Zivotofsky case was before the Supreme Court for the first time in 2011, the ZOA’s amicus brief also documented the many “Jerusalem, Israel” references by departments and agencies in the Executive Branch, including by the State Department. After the brief was filed, the government scrubbed the “Jerusalem, Israel” references from many of those documents. Nevertheless, several remain and have been added since the filing of that brief.
The ZOA also argues that enforcing the law would simply require the State Department to accommodate the personal preferences of Jerusalem-born Americans who want to identify with Israel, in the same way that the State Department already defers to the personal identity preferences of Americans who do not want to identify with Israel. Passport applicants born before 1948 in an area that the U.S. recognizes as part of Israel are not required to list “Israel” as their birthplace if they object to it. They can have “Palestine” recorded instead – even though “Palestine” is not and never has been a sovereign nation. Passport applicants born in or after 1948 in an area that is also indisputably part of Israel are also not required to list “Israel” on their passports. The State Department will permit them to list their town or city of birth instead. The ZOA urges in its brief that the personal preferences of Americans born in Jerusalem who want to identify with Israel should likewise be honored and respected.
Morton A. Klein, the ZOA’s National President, and Susan B. Tuchman, Esq., the Director of the ZOA’s Center for Law and Justice, stated: “The ZOA is the only Jewish organization to have taken formal legal action to uphold and enforce the so-called ‘passport law.’ Jerusalem is indisputably Israel’s eternal and undivided capital. Enforcing the law – which President Bush actually signed instead of vetoing it – will not amount to a declaration of U.S. policy regarding the status of Jerusalem. It will simply permit Americans born in Jerusalem to identify with Israel, if that is their wish.
“We thank the Zivotofsky family and their distinguished lawyers, Nathan Lewin, Esq., Alyza Lewin, Esq., and Chaim Z. Kagedan, Esq. (of counsel) for their commitment to protecting the rights of American citizens born in Jerusalem, Israel’s capital. We are also grateful to two ZOA Board Members: David I. Schoen, Esq., counsel of record on the ZOA’s brief, and Edward M. Siegel, Esq., for all their support and vital input on the ZOA’s brief.”
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Preceding provided by the Zionist Organization of America