What a week it has been for Jerusalem

The President of the United States arrived, transformed the King David Hotel into his (and his entourage’s) home away from home, and then began a series of meetings and visits – to the official residences of President Shimon Peres and Prime Minister Bibi Netanyahu, to the Israel Museum and the Shrine of the Book, to the Jerusalem Convention Center, to Mount Herzl, Yad Vashem, and to the grave of former Prime Minister Yitzchak Rabin.  All of these sites are in Jerusalem. 

But are they in Israel?

According to the U.S. State Department they are not.  

The State Department refuses to recognize Jerusalem as being in Israel and says that the city’s status must be determined in future peace negotiations.

My father (i.e. the article's writer Alyza D. Lewin), Nathan Lewin, and I were in court this week – the day before President Obama arrived in the Middle East – on a case that concerns this very issue.  The case is Zivotofsky v. Secretary of State, and it involves the right of a Jerusalem-born American citizen to self-identify as born in “Israel” on his or her U.S. passport and birth certificate.

The general rule for American citizens born abroad is that their U.S. passports list their country of birth as their place of birth.  So American citizens born in Paris, have “France” listed as their place of birth on their passports.  Citizens born in Rome list “Italy.”  Those born in Tel Aviv or Haifa list “Israel.”  But because the U.S. does not recognize Jerusalem as being in Israel, the State Department lists the city – “Jerusalem” – instead of the country as the place of birth for Jerusalem-born American citizens.

Most people do not know that the State Department permits American citizens who wish to remove any reference to “Israel” from their passports to do so.  For example, American citizens born in Tel Aviv or in Haifa may choose to list their place of birth as “Tel Aviv” or “Haifa” instead of “Israel” if they are offended by having “Israel” listed on their passports.  The U.S. also permits “West Bank,” “Gaza Strip,” and “Palestine” (for those born before 1948) to be listed as “place of birth” on a U.S. passport.  The State Department refuses to be equally accommodating to individual convictions, however, when it prohibits American citizens born in Jerusalem to list “Israel” as their place of birth.

In 2002, Congress passed a law that directed the Secretary of State to record the birthplace of American citizens born in Jerusalem as “Israel” on the U.S. passports and birth certificates of those who so request.  Since the bill’s enactment, 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.”

Our client, Menachem Binyamin Zivotofsky, was born in October 2002 in Shaare Zedek hospital (just a few weeks after the law was enacted).  His parents invoked the new statute and asked that his place of birth be listed as “Israel.”  The State Department refused because it claimed that Congress’ law was unconstitutional, and it listed his place of birth as “Jerusalem.”  Zivotofsky then became our firm’s youngest pro bono client when he (and his parents) sued in September 2003 to compel the State Department to comply with the law. 

Tuesday (March 19) marked the third time in this case’s 10-year history that our firm presented arguments in the case before the U.S. Court of Appeals for the District of Columbia Circuit. Last year, following our written briefs and oral argument, the U.S. Supreme Court agreed with us, by an 8-1 vote, that the D.C. Circuit was obliged to rule on whether Congress’ law is valid.It rejected the State Department’s argument that our lawsuit raised a “political question” that the courts should not address.

The government’s claim that the law should be nullified can be summed up as follows:

(a). listing “Israel” as the place of birth on the passport of a Jerusalem-born American citizen (as required by the statute) is tantamount to the United States formally recognizing Israel’s sovereignty over Jerusalem;

(b). “recognizing foreign sovereigns” is a power that belongs exclusively to the President of the United States;

(c). therefore the statute is unconstitutional because Congress trenched on a power that belongs only to the President when it passed the law.

Interesting revelations, right? But, this is not all. Read more at BRANDEIS CENTER.

NOTE:

Alyza D. Lewin: The article's writer, Alyza D. Lewin, is currently the President of the American Association of Jewish Lawyers and Jurists.

Nathan Lewin:  is nationally recognized as one of the outstanding authorities on constitutional law, particularly as it pertains to religious rights and freedoms. He is President of the International Association of Jewish Lawyers, American section; Vice President of COLPA (National Jewish Commission on Law and Public Affairs); and has taught constitutional law at several leading American law schools, including Columbia, University of Chicago, Georgetown, and Harvard. An articulate advocate for religious Jewry, Mr. Lewin has argued a number of landmark cases before the United States Supreme Court.

Lewin's individual clients have included Attorney General Edwin Meese III, whom he represented while he was serving as Attorney General, President Richard Nixon, Jodie Foster, John Lennon, nursing home owner Bernard Bergman, Congressman George Hansen, Teamsters president Roy Williams, and Israeli war hero Aviem Sella.