NEW YORK - Parents of a Jerusalem-born American boy who want "Israel" listed as their son's country of birth on his passport have been dealt another blow with the dismissal of their case by a US court of appeals.
The E. Barrett Prettyman Federal Courthouse.
Photo: Courtesy
The US Court of Appeals in Washington, DC, on July 10 upheld a lower court's decision that the courts lack jurisdiction in the matter because foreign policy - including the recognition of foreign governments - belongs exclusively in the domain of the executive branch. According to the State Department, US passports for those born in Jerusalem do not list a country because doing so would interfere with and pre-judge Israeli-Palestinian negotiations.
The case had been filed by an American couple living in Israel, Ari and Naomi Zivotofsky, on behalf of their son, Menachem Binyamin Zivotofsky, born in 2002.
Reached by telephone during a recent trip to Ethiopia, Ari Zivotofsky told The Jerusalem Post that though his son's American passport is valid, the outcome of the case is laden with symbolism. "This is about the US recognizing the sovereignty of Israel over any [part] of Jerusalem," he said. "We like to believe the US is our strongest ally, yet something so fundamental like this, even that little bit, our strongest ally refuses to recognize, it just sends a message," he said.
The Zivotofskys have two older children who were born in the US. An attorney for the family, Nathan Lewin, said they were mulling an appeal to the US Supreme Court. "I'm appalled by the decision," he said. "The court is clearly wrong that it's a political question... It's clearly a matter of law."
The lawsuit argues that a 2002 law authorizes the State Department to designate Israel as the place of birth in the passports of Jerusalem-born Americans.
Lewin said changing Zivotofsky's passport is not a foreign policy decision. "It's not saying the US formally recognizes Jerusalem as being in Israel. On a passport, that's simply a means of identification."
Indeed, he noted, Arab citizens born in Tel Aviv or Haifa may choose to omit Israel from their passports. "The Arabs can strike Israel off the passport, but the Jews cannot put it on the passport," he said.
The case was thrown out twice before, in 2004 and in 2007, by Judge Gladys Kessler. In 2006, the DC Court of Appeals overturned Kessler's 2004 ruling and sent the case back for a fact-finding mission to determine the possible consequences of including "Israel" on the passport. But in 2007, Kessler said the State Department's refusal to list Israel on the passport was a "nonjusticiable political question."
In her decision, Kessler argued that the US courts should not get involved in the dispute. "Such conflicts are best resolved through political means," she wrote.
The Zionist Organization of America criticized last week's decision. The group's national president, Morton A. Klein, pointed to the US Jerusalem Embassy Act of 1995, which recognizes sovereign nations' right to designate their own capitals.
"American citizens like Menachem Binyamin Zivotofsky, who are born in Israel's designated capital, should have the right to have that fact reflected on their official documents," he said in a statement.
In recent years, Canada faced a similar issue when a Jerusalem-born teenager living in Toronto asked to have "Jerusalem, Israel" listed on his passport. Eliyahu Veffer's petition was denied, and he subsequently filed a legal challenge to the Canadian passport agency's policy. "My religion teaches me that Jerusalem is the capital of Israel," Veffer said in an affidavit.
However, a federal court judge in 2006 dismissed his application to review the passport agency's policy, ruling that "passports do not deal with, nor are they a reflection of, a person's roots, heritage or belief."
In February 2008, Canada's Supreme Court refused to hear an appeal.
"Canada has a general passport policy of allowing the name of the country inscribed in the passport to be that which the applicant has provided in the application. Jerusalem is an exception to this general policy," David Matas, who as senior legal counsel for B'nai B'rith Canada filed an appeal on behalf of Veffer, said at the time. "This exception has an adverse discriminatory impact."
In the US, there is no legal precedent for the Zivotofsky case, Lewin said. The closest parallel involves Taiwan. In 1994, Congress passed a law allowing the State Department to designate "Taiwan" as the birth country in a passport when requested to do so by applicants born there, rather than China.
