In an unprecedented lawsuit that could affect over 50,000 Jerusalem-born Americans, the US Supreme Court has agreed to hear the case of a Jerusalem-born American boy whose parents are demanding consular officials record Israel as his country of birth on official documents.
American olim and Jerusalem residents Ari Z. Zivotofsky and Naomi Siegman Zivotofsky have been fighting for their son Menachem Binyamin’s passport and other documents to show Israel as his birth country even since he was born in Jerusalem’s Shaare Zedek hospital eight years ago.
Currently, in line with US policy, Menachem Binyamin’s passport and Consular Report of Birth Abroad (equivalent of a birth certificate) only show that the boy was born in Jerusalem – but omit the country, his parents say.
As Menachem Binyamin’s parents are both Americans, he is automatically a US citizen and entitled to a US passport and other official documents.
US State Department policy is to record the city and country of birth on these documents for US citizens born overseas. However, this rule does not apply for American citizens born in Jerusalem, as the Zivotofskys discovered when they applied to the US Embassy in Tel Aviv for a passport and a Consular Report of Birth for their newborn son back in 2002.
Menachem Binyamin’s mother, Naomi, says she specifically requested that consular officials list her son’s place of birth as Israel.
Consular officials refused this request, the Zivotofskys say.
Instead, Menachem Binyamin’s passport shows only that he was born in Jerusalem.
“If a US citizen is born in Tel Aviv, his passport will designate his place of birth as Israel. But in the case of Jerusalem, the US Consular Department will not give the country of birth as Israel,” Menachem Binyamin’s father told The Jerusalem Post
The US State Department’s refusal to allow Jerusalem-born American citizens to list Israel as their country of birth on official documentation stems from the US’s official position of not recognizing Jerusalem as the capital of Israel.
“Even though our son was born in Shaare Zedek Hospital, which is in West Jerusalem, the US Consular Department does not recognize it as being Israel,” added Ari Zivotofsky.
“And on his Consular Report of Birth, it’s even more blatant – the document is supposed to list both the city and the country of birth, and in Menachem Binyamin’s case, the country field has been left completely blank.”
The State Department’s policy is still implemented despite legislation passed by the US Congress in 2002 that said Jerusalem-born US citizens could list Israel as their country of birth on passports, Zivotofsky noted.
Yet though the law was signed by president George Bush, in practice neither he nor current US President Barack Obama have permitted US consular officials to record Israel as the birth country for Jerusalem-born Americans.
According to the US State Department, this is because the so-called “Jerusalem passport law” infringes on the president’s power to determine whether a particular territory is part of a country – and the US does not recognize Jerusalem as part of Israel.
However, the Zivotofskys say this policy harms their right to show their identification with Israel.
This is the issue that will be debated in the US Supreme Court.
In their brief to the US Supreme Court, the Zivotofskys argue that the US State Department’s policy “discriminates against supporters of Israel who would like personally, or through their children, to be identified with the State of Israel.”
The Zivotofskys’ lawyers, Nathan Lewin and Alyza Lewin of the
Washington, D.C.-based law firm Lewin & Lewin, LLP, argue in the
Supreme Court brief that American citizens born in Tel Aviv or Haifa
after 1948 can ask the Consular Department not to record “Israel” as the
country of birth, if they object to Israel having sovereignty in those
And Americans born in Jerusalem or anywhere else in Israel before 1948
can request that their country of birth be listed as “Palestine” on US
passports and other documents, including death certificates.
Attorney Nathan Lewin told The Jerusalem Post
Wednesday that the case was important “to American citizens born in
Jerusalem and to all supporters of Israel who view Jerusalem as an
integral and eternal part of the State of Israel.” Lewin added that the
case also addressed important constitutional issues, and noted that the
Supreme Court’s decision would likely set an important precedent in this
“difficult and contentious area of defining the powers that the
President and the Congress have over American foreign relations.
“More broadly, from an American constitutional perspective, it presents
very important constitutional issues relating to separation-of-powers in
the American governmental system. Does the president have exclusive
authority over foreign relations if his judgment conflicts squarely with
Congress’s? Does the president have exclusive authority to “recognize
foreign sovereigns?” What does this “Recognition Power” mean? Does it
include exclusive authority to determine that a particular city or
territory is within a sovereign’s borders?” said Lewin.
Meanwhile, the Zivotofskys say their son Menachem Binyamin is not alone in his plight.
According to data collected by the Zivotofskys’ legal team, the US
government stated that in a 10-year period, it had issued 99,177
passports listing “Israel” as the holder’s place of birth, and 52,569
passports that only listed “Jerusalem.”
With so much at stake, the Zivotofskys’ story has sparked a rapidly-growing grassroots movement in the US and Israel.
Led by the National Council of Young Israel and the International Israel
Allies Caucus Foundation, the movement – dubbed The Association of
Proud American Citizens Born in Jerusalem – has launched a campaign in
support of the Zivotofskys’ lawsuit.
Via its website, www.borninjerusalem.org, the movement is asking asking
Americans in the US and Israel to lobby their senators on behalf of
“In the last week alone, more than 4,000 letters were sent to Capital Hill on the subject,” said Ari Zivotofsky.
The Anti-Defamation League (ADL) is also championing the Zivotofskys’
cause, and is asking other Jerusalem-born Americans to join an amicus
brief (a legal opinion given by an expert who is not party to a lawsuit)
it is submitting to the US Supreme Court. According to the ADL, that
brief will be filed to the Supreme Court on Friday.
ADL National Director Abraham H. Foxman slammed the US State
Department’s policy not to record the birth country of Jerusalem-born
Americans as “insulting.”
“This has long been one of the most offensive, harmful and insensitive actions of the American government,” said Foxman.
“Unfortunately, it has been tolerated and defended for so many years
regardless of what administration was in office. It’s insulting that the
State Department refuses to make this simple change to identify
American citizens as having been born in Jerusalem, Israel. It borders
on the irrational, and it’s time it ended. We hope the Supreme Court
will see the fairness and reasonableness of this lawsuit, and set it
The suit of Menachem Zivotofsky vs. Hilary Rodham Clinton is set to be heard in the US Supreme Court in November.
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