By Susan B. Tuchman, Esq.
NEW YORK — The United States Supreme Court in Washington D.C. will be hearing an important
case this fall that could affect the right of U.S. citizens born in Jerusalem,
Israel’s capital, to formally identify with their birthplace in the State of
Israel. In 2002, Congress passed legislation permitting American citizens born
in Jerusalem to have “Israel” recorded as their birthplace on their passports
and other documents. President George W. Bush signed the legislation into law.
Prior to 2002, when Americans born in Jerusalem obtained their U.S. passports,
the State Department would list their birthplace as “Jerusalem” only, with no
country of birth. The law is clear, mandating the State Department to list
“Israel” if a Jerusalem-born American requests it
Menachem Zivotofsky, whose case will be heard on November
7th by the Supreme Court, was born in Jerusalem after the law’s
passage, the child of parents born in the U.S. When the State Department denied
his parents’ request to have “Israel” listed as Menachem’s birthplace on his
U.S. passport, they filed suit. Separately, the ZOA sued on behalf of another
American citizen born in Jerusalem whose statutory right to have “Israel” on his
passport was also violated. The ZOA was the only Jewish organization to take
formal legal action to implement the law. The two cases were consolidated in
the federal district court in Washington, D.C., and the Zivotofsky case made its
way to the Supreme Court. One of the issues that the Court will be addressing
is whether the law impermissibly infringes on the president’s power to recognize
foreign sovereigns.
To help show that the law does not impermissibly infringe on
any presidential power, the ZOA filed an amicus (“friend of the court”)
brief with the Supreme Court on August 5th, revealing that many
departments and agencies in the Executive branch regularly refer to Jerusalem as
part of Israel. For example, on the White House Web site, photos are posted
that were taken on Vice President Joe Biden’s trip to the Middle East last
year. One photo was captioned: “Vice President Joe Biden meets with Israeli
Prime Minister Benjamin Netanyahu in Jerusalem, Israel, March 9, 2010.”
Another photo’s caption read: “Vice President Joe Biden laughs with Israeli
President Shimon Peres in Jerusalem, Israel, March 9, 2010.” A third
photo’s caption said: “Vice President Joe Biden has breakfast with Former
British Prime Minister Tony Blair . . . in Jerusalem, Israel, March 10,
2010” (emphasis added regarding all three captions). Each of these photos is
identified as an “Official White House Photo.”
Just days after the ZOA filed its brief with the Supreme
Court, the White House suddenly changed its Web site to remove the references to
“Jerusalem, Israel.” Now the captions for the photos from the Vice President’s
trip simply say “Jerusalem,” with “Israel” deleted. There’s little doubt that
the government will probably try to cleanse from the Internet all the other
references to “Jerusalem, Israel” that have been made by various U.S.
departments and agencies over the years, as described in the ZOA’s brief.
Nevertheless, the point has been made and will surely not be lost on the Supreme
Court: Given the federal government’s many routine references to “Jerusalem,
Israel” in reports, tables and other documents, it is difficult to believe that
permitting Americans born in Jerusalem to identify with Israel by recording
“Israel” as their birthplace on their passports – which is their legal right –
will have any impact on the president’s power to recognize foreign
sovereigns.
It is also difficult to believe that concerns about foreign
sovereignty are really what is driving the State Department when it refuses to
list “Israel” on the passports of Jerusalem-born Americans who request it. When
Americans who were born in areas that are indisputably part of the sovereign
state of Israel do not want to identify with Israel, the State Department
will disregard Israel’s sovereign status and defer to those Americans’ personal
preferences. U.S. citizens born before 1948 in what is now sovereign Israel can
choose to have “Palestine” listed as their birthplace on their passports
instead, even though “Palestine” is not and never has been a sovereign nation.
U.S. citizens born in or after 1948 in sovereign Israel can choose to have their
city of birth listed on their passports, instead of “Israel.”
The personal preferences of Americans born in Jerusalem who
do want to identify with Israel should be given the same respect. After
all, the Jerusalem Embassy Act of 1995, which became law after being passed by
overwhelming majorities in the House and the Senate, specifically provides that
it is U.S. policy that Jerusalem should remain undivided and recognized as the
capital of Israel. The State Department should record “Israel” as the
birthplace on the passports of Jerusalem-born Americans who request it,
consistent with the 2002 law that Congress passed and President Bush signed.
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Tuchman is director of the Zionist Organization of America’s Center for Law and Justice