No regrets for Jerusalem passport lawsuit

Two weeks ago our amazing 12-year journey, in which we had the privilege to represent tens of thousands of American-Israelis, came to an end.

Israeli passport [Illustrative] (photo credit: INGIMAGE)
Israeli passport [Illustrative]
(photo credit: INGIMAGE)
Two weeks ago our amazing 12-year journey, in which we had the privilege to represent tens of thousands of American-Israelis who were either born in Jerusalem or whose child was born in Jerusalem, came to an end. The saga saw us in front of the US Supreme Court twice, where we were fortunate to be represented by the talented father/ daughter legal team of Nathan and Alyza Lewin. The ending was not what we had hoped for, nor what we had expected; we are thus both disappointed and surprised.
Ever since the 6-3 decision striking down the Jerusalem passport law, people have been asking us if, in hindsight, we now regret bringing the lawsuit.
The short answer is an unequivocal “no.” We brought this lawsuit because as proud Americans who now live in Israel we were delighted to have a child born in Israel, a country to which the Jews have prayed to return for 2,000 years. The US policy that an American born in Jerusalem may not have his place of birth listed as “Israel” struck us as ludicrous. As now 12-year-old Menachem is wont to say: “Where do they really think Jerusalem is?” Or, as Justice Antonin Scalia phrased it (page two of his dissenting opinion): “The political branches of our Government agree on the real-world fact that Israel controls the city of Jerusalem.”
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This policy seems like a sloppy attempt by the US State Department bureaucrats to have their idealized world view supersede reality. We were thus gratified that Congress, who represent the will of the US people, saw it that way as well and, shortly before Menachem was born, passed a law not forcing, but merely enabling, a US citizen born in Jerusalem to request that his passport reflect the present-day reality that he was born in Israel. We thank Congress for taking that action 12 years ago. We also thank them for standing up again to harshly criticize the current policy in the wake of the recent decision. We similarly thank the US Senate, and each individual senator, for the outstanding amicus (“friend of the court”) brief filed in the Supreme Court on behalf of all 100 Senators in support of our position.
They were not alone; tens of Jewish and non-Jewish organizations, leading legal scholars and individuals, and even the attorney general for the State of Texas filed similar, compelling briefs on our behalf, and we are grateful to each and every one of them.
The reasonableness of the congressional bill that was passed by an overwhelming majority seemed so simple to us non-lawyers and non-politicians that we could never have imagined that the State Department would make a “federal case” out of it and that we would be before the district court twice, the court of appeals thrice and the Supreme Court twice. In the end, the Supreme Court concluded that Congress overstepped its bounds, and that this was a constitutional question unrelated to the status of Jerusalem.
Yet strangely, at the oral arguments those justices who, it would later emerge, were in the majority asked our counsel, Alyza Lewin, time and again about the sensitive nature of Jerusalem and whether a decision in our favor would not result in Arab violence, as the government repeatedly claimed. Connecting the dots it almost seems as if the court’s opinion, while couched in legal terms, was one more example of sacrificing Western values on the altar of fear.
Congress’ 2002 statute appears remarkably simple. It merely provides for substitution of one word, “Israel,” for another, “Jerusalem,” on a document, a passport, which is rarely opened. Such a simple request and yet it has now received worldwide attention from all levels of government.
The Supreme Court’s decision highlights what can only be described as an absurd policy. When Justice Ruth Bader Ginsburg visits Jerusalem and goes shopping, she will use Israeli shekels; should Justice Elena Kagan then telephone her for a consult she will use the Israeli country code of +972. Justice Anthony Kennedy may one day request the extradition of an American criminal hiding out in Jerusalem and he will surely contact the Israeli police. Or as Justice Scalia pointed out, goods imported from Jerusalem are taxed as those imported from Israel.
Who does the president and State Department think they’re kidding when they assert that Jerusalem is not part of Israel? Even the White House website displayed photos of US administration personnel meeting Israeli counterparts in the Israeli capital that were labeled as taking place in “Jerusalem, Israel” – until they were sanitized as our case headed to the Supreme Court the first time around. (Is that not tampering with evidence?) To further highlight the absurdity of the situation, our son was born in what is called by the US government “western Jerusalem”; the portion of Jerusalem that has been part of Israel since its founding in 1948. While the eastern part is called “occupied” by the State Department and the president has at times criticized Israeli construction there, no such complaints have ever been leveled against Israel regarding the western part. There is no reasonable person who does not concede that it will remain in Israel even after any negotiated settlement.
Yet the US persists in asserting that to acknowledge that it is part of Israel would be biased.
Do we regret bringing the suit? No.
The decision has not changed anything on the ground. The nonsensical US policy remains in place. We are still immensely proud to have a son born in Jerusalem, something that would have made my grandparents cry with joy and envy. And with or without the approval of the US State Department, we and all honest people know that Menachem was born in the State of Israel. And we believe that an undivided Jerusalem is and will remain the capital of Israel. But if nothing has changed that does not mean the lawsuit was in vain. Just the opposite; the lawsuit has raised awareness of US policy to unprecedented heights. Senators have begun to speak out. Presidential candidates have taken note. Representatives have appealed to the president. The people of Israel are now aware of exactly where the US stands. Hopefully, with this new awareness real change in policy can be implemented and not merely the symbolic change of one clerical word that a Supreme Court victory would have granted us.
The author and his wife, Naomi, came on aliya to Israel and in 2002 asked the US embassy officials in Tel Aviv to list ‘Jerusalem, Israel’ as the place of birth for their newborn son Menachem on his US passport. The result was a lengthy court battle that went to the US Supreme Court, which ruled earlier this month in favor of the US policy to not list “Israel” as a birthplace for Americans born in Jerusalem.
Ari Zivotofsky is a professor of brain sciences at Bar-Ilan University.