US Supreme Court begins hearing Jerusalem passport case

Parents demand Israel’s capital be listed as birthplace.

By REBECCA ANNA STOIL, JERUSALEM POST CORRESPONDEN
November 10, 2011 05:25
2 minute read.
Alyza and Nathan Lewin

Alyza and Nathan Lewin. (photo credit: Courtesy Lewin)

WASHINGTON – The US Supreme Court heard oral arguments earlier this week in the case known as Menachem Zivotofsky v. Secretary of State Clinton – a case in which nine-year-old Zivotofsky’s parents have sued for the Jerusalem-born child to have his birthplace listed as Jerusalem, Israel, in his US passport.

Lewin of Lewin & Lewin, LLP, have litigated the case pro bono for eight years. The Zivotofsky’s case centers around a law passed by Congress in 2002 that directed the secretary of state to record the birthplace of American citizens born in Jerusalem as “Israel” on these documents for American citizens who so request.

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But according to the Lewins, the executive branch has refused to enforce the law, claiming that to do so would infringe on the president’s authority to “recognize foreign sovereigns.”

Although president George W. Bush signed the law after it passed Congress, he initiated the practice of non-enforcement, explaining that it would limit executive authority to shape foreign policy.

During the oral argument on Monday, Supreme Court justices pressed Nathan Lewin on the question of the role of the legislature in dictating foreign policy.

Menachem Zivotofsky was born in Jerusalem shortly after the 2002 law was passed, and his parents requested that his place of birth in his US-issued documents be listed as Jerusalem, Israel. The State Department refused to do so, listing the place of birth as Jerusalem, without citing a country.

This is the standard State Department policy on Jerusalem, an accession to Washington’s continued reluctance to recognize the city as the capital of Israel. Despite periodical reports regarding the possibility of moving the Tel Aviv embassy to Jerusalem, Israel’s capital remains serviced by a consulate and not an embassy.

Nathan Lewin noted during his argument that “Congress recognized that with regard to the 50,000 people who have a passport that says ‘Jerusalem,’ they are being denied a certain sense of self-respect that they feel they should be able to have in terms of their own identification.

The Obama administration’s position opposes the Supreme Court challenge on two grounds: first, it is concerned that allowing “Jerusalem, Israel” to be written on passports could further destabilize the region, as well as set a precedent that the Supreme Court can rule on issues of foreign policy.

Speaking with the press after the argument, Ari Zivotofsky, Menachem’s father, explained that listing “Israel” as the place of birth on his son’s passport is significant for the family because “for us the modern State of Israel is historically and religiously significant. It was meaningful to us to have a son born in Israel and it is, therefore, important to us that he be allowed to identify himself as born in Israel on his American passport.”

A ruling on the highly charged challenge is expected in mid-2012.


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