US Supreme Court to hear dispute over 'Jerusalem, Israel' as birthplace

The US Supreme Court on Monday agreed to take up the case of an American couple who want their son’s passport to show his birthplace as “Jerusalem, Israel,” despite a US State Department policy barring any identification of the disputed territory of Jerusalem as being part of Israel.

Menachem Binyamin Zivotofsky was born in 2002 and is now 11 years old. Shortly after his birth in a hospital in Western Jerusalem, his mother requested that the US government’s Report of Birth Abroad reflect that Menachem was born in Jerusalem, Israel.

The mother also requested that the same designation be noted on her son’s US passport.

US officials refused, noting that longstanding US policy has been to record US-citizen births within the disputed city as having taken place in Jerusalem, with no designation of a country.

The policy was enacted in part for diplomatic reasons to avoid sending a signal to one side or the other that might undercut the US government’s ability to act as an honest broker for peace in the Middle East.

Mrs. Zivotofsky and her husband were not impressed. They argued that Congress had recently passed a statute that requires the State Department to list their son’s place of birth as Jerusalem, Israel.

The statute says in part: “For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary [of State] shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.”

Armed with the newly passed statute directly on point, the couple took their fight to federal court. After several rounds of litigation, including multiple appeals, the question now arrives at the US Supreme Court.

At issue before the court is whether the 2002 statute is unconstitutional because it impermissibly intrudes on the executive branch’s exclusive authority to recognize foreign governments.

“There is explicit and square disagreement between the Executive and the Congress over a recognition issue – a legal question that this court has never heretofore directly addressed,” Washington Appellate Lawyer Nathan Lewin said in his brief urging the high court to take up the case.

“The court should not be swayed by the government’s effort – repeatedly made at each stage of this litigation – to intimidate the judiciary by emphasizing the ‘sensitivity’ of Jerusalem’s status,” Mr. Lewin wrote.

US Solicitor General Donald Verrilli had urged the justices to reject the Zivotofskys' petition to hear the case, in part, by emphasizing the potential foreign policy complications of the place-of-birth issue.

“The status of the city of Jerusalem is one of the most sensitive and longstanding disputes in the Arab-Israeli conflict,” Mr. Verrilli wrote in the opening sentence of his brief.

“Any unilateral action by the United States that would signal, symbolically or concretely, that it recognizes that Jerusalem is a city that is located within the sovereign territory of Israel would critically compromise the ability of the United States to work with Israelis, Palestinians, and others in the region to further the peace process,” the solicitor general said.

“Israeli and Palestinian leaders are currently engaged in such negotiations on a number of key issues, including the future status of Jerusalem, in significant part because of the intensive United States diplomatic efforts,” Verrilli said. “These efforts are predicated on the need for the two sides to reach mutually acceptable solutions.”

The solicitor general told the court that recording “Israel” as the place of birth of a US citizen born in Jerusalem “would be perceived internationally as a reversal of US policy on Jerusalem’s status dating back to Israel’s creation” and would be immediately recognized as such throughout the volatile region.

He added: “That reversal could cause irreversible damage to the United States’ ability to further the peace process.”

The case is Zivotofsky v. Kerry (13-628). It will likely be set for oral argument during the court’s new term next fall.