My daughter, now 14, was born at Misgav Ladach Hospital in Jerusalem in 1996, while we were living in Israel. (Yes, she’s a sabra; no, she is not an Israeli citizen. Israel does not have “birthright” citizenship.) We went to the U.S. consulate in east Jerusalem to get her American birth certificate. Under city of birth it reads “Jerusalem.” Under country of birth — the line is blank.
That’s my personal link to a lawsuit that is heading to the Supreme Court this fall. American olim Ari Zivotofsky and Naomi Siegman are suing the State Department for refusing to abide by a 2002 law that directs consular officials to include “Israel” when documenting Americans born in Jerusalem. Like my daughter and some 50,000 other Jerusalem-born Americans, the couple’s son Menachem is, according to his U.S. passport anyway, a boy without a country.
Although the legal wrangling is complicated, it revolves around a law signed by George W. Bush in 2002 that permits officials to list “Jerusalem, Israel” on passports and such. However, Bush distanced himself from the bill even as he signed it and allowed the State Department to ignore it. The Obama administration followed suit, saying a unilateral declaration of Jerusalem’s status “would critically compromise” the United States’ ability to further the Middle East peace process. Both administrations have asserted that our foreign policy cannot be dictated by the legislative branch.
That’s the legal point the Supremes will debate. For Jewish groups watching the case, the real issue is whether the executive branch will do something it has long hesitated to do: officially acknowledge Israel’s claim to Jerusalem as its capital. As far as U.S. policy has it, the city’s status, even after 63 years of statehood, is a matter to be settled after negotiations between Israel and the Palestinians.
Obviously, this galls Jews across the board: You don’t have to be a Likudnik to concede that all or part of what currently constitutes Jerusalem will be the capital of the Israel that will emerge from a peace deal. So why the State Department’s obstructionism?
That’s certainly how the Anti-Defamation League sees it, in an amicus brief it joined with 10 other major American-Jewish organizations. “Americans born in Jerusalem should have the same right to indicate their country of birth on their passport that is currently available to other American citizens born abroad, and that is what Congress has mandated,” said ADL national director Abraham Foxman. “The purpose of a passport is for identification, and it is indisputable that Jerusalem is in Israel.”
The brief included an unusually broad spectrum of Jewish groups, from the liberal National Council of Jewish Women to the conservative Orthodox Union.
The notable holdout was the American Jewish Committee, hardly a bastion of the Left (or Right). It didn’t sign on, its counsel asserting that “all issues in the Israel-Palestinian conflict have to be settled at the negotiating table and not the U.S. Supreme Court or the UN with unilateral declarations.”
And while Jewish groups may consider Jerusalem’s status “indisputable,” no country on earth besides Israel agrees, as Forward contributor J.J. Goldberg points out.
Meanwhile, Richard Epstein of the conservative Hoover Institution suggests that while the plaintiffs are probably right on the law, precedent sides with the executive branch when it comes to setting foreign policy. He predicts that the Supreme Court will stick to earlier precedents that “are weighted heavily in favor of the president. On that view, Congress upsets the presidential prerogative by forcing the secretary of state to issue passports marked Israel for American citizens born in Jerusalem.”
The case is a dilemma for American Jews like me, who, as AJC put it, view Jerusalem as Israel’s capital but oppose unilateral moves that preempt negotiations.
I’m no legal scholar or diplomat, but I know that Republican and Democratic presidents have been loath to move forward on the status of Jerusalem, despite the passport law and another requiring they move the U.S. Embassy from Tel Aviv to Jerusalem. They worry that any unilateral move on Jerusalem — administrative or otherwise — could blow up any chances for a negotiated peace.
Jews like me may know in our hearts that Jerusalem is, was, and will be Israel’s capital. But what if the State Department is right? Is filling in the blank on the passport worth the risk of further inflaming a situation that seems always on the point of boiling over?
Nathan Lewin, Ari Zivotofsky’s lawyer, told the Times that his goals are personal, not political. “This client is representative of a large group of American citizens born in Jerusalem who are proud of the fact that they were born in Israel,” he said, “and they want their passports to reflect that fact.”
My daughter and we are intensely proud that she was born in Israel and would love her passport to confirm it. But our pride doesn’t come from what it says on a document, any more than it can be taken away by what it doesn’t say. If it means keeping the slim hope for peace alive, I am willing to keep the space blank for now.