Jerusalem on Trial

How often does a United States Supreme Court decision affect you personally? The decisions of the Supremes certainly touch our lives, but usually without the immediacy of one case now awaiting decision.

Here in Israel, we have been blessed with the birth of a grandson, and his arrival brings not only great joy but also the confusion that has engendered the case of Zivitofsky v. Kerry. Our grandson was born in Jerusalem, and, under current US consular practice, his place of birth will be recorded on his American passport as “Jerusalem,” and not as is done elsewhere in the world, with the country name rather than the city name. Indeed, if he had been born in Tel Aviv or Ramat Gan, his place of birth would be recorded as “Israel.” Not so in Jerusalem, capital of Israel for, oh, going on 3000 years and the focal point of the impending holiday of Chanuka.

This discrepancy exists because, as is well known, official US policy does not recognize Jerusalem as the capital of Israel, notwithstanding repeated promises and Congressional legislation to move the American embassy to Jerusalem. What is less known, and outrageous, is that official US policy does not even recognize Jerusalem as a city in Israel. That is a remarkable incongruity. Jerusalem is considered to be a disputed city whose ultimate fate is yet to be negotiated, and those born there, apparently, are stateless.

A number of years ago, the Zivitofsky family (Rabbi Dr. Ari Zivitofsky, the father, is a tremendous resource to the Jewish people in the realms of halachaminhag, science and now law) sued to have their Jerusalem-born son’s place of birth on his US passport be recorded as “Israel.” Their appeal was first denied by the Consulate, and a sympathetic Congress then passed a law mandating that any American child who is born in Jerusalem shall have his passport state that he was born in Israel. (That happened in 2002; the child in question is already Bar Mitzvah age, so long has the matter been meandering through the legal and political system.)  The bill was signed into law by President Bush, who nonetheless attached a signing statement arguing that this Congressional act was an unconstitutional violation of the president’s right to conduct foreign policy. The State Department, on those grounds, refused to implement the law. The Zivitofsky’s sued in US federal court, and the denial of their right to sue was upheld until the Supreme Court in 2011 ordered that the matter be decided on the merits.

When it was finally heard, their claim was systematically rejected on the grounds that this was a political/diplomatic question, and therefore solely the purview of the President. The appeal of that ruling is now pending before the Supremes.

How will the case be decided? The lamentable rule of thumb has usually been that “the Jews lose.” Most cases in memory of parochial Jewish interest have been decided against what could be called “the Jewish side.” It certainly does not help that the three Jewish justices who currently sit on the Court (Ginsburg, Breyer and Kagan) were notably hostile to the appellant’s case. When one adds to that number the clear opposition to the law of Justice Sotomayor, it means that the Zivitofsky’s have to run the table – gain the support of all five other justices – in order to prevail.

It is certainly possible, although, as is frequently the case, Justice Kennedy might again prove to be the swing vote. Three other justices (Roberts, Scalia, and Alito) appeared to be favorably disposed to the law and appellant’s arguments (with Justice Thomas reticent as always). How is this for irony? If the Zivotovsky’s prevail, it will be because five Catholic jurists outvoted three Jews and upheld the Jewish connection to Jerusalem!

At first glance, the case appears to be unwinnable. The recognition of foreign governments and their territories is a presidential prerogative. The president is the official who is primarily responsible for the conduct of foreign policy, with Congress playing a subordinate role. Here, too, the government argued that registering the birth of an American citizen in Jerusalem as “Israel” would negate one of the norms of US foreign policy since 1948: that the status of Jerusalem is to be determined through negotiations between the parties and not unilaterally by either side. Recording in a passport that, in effect, Jerusalem is Israel (even so-called West Jerusalem), would undermine that, and presumably ignite the tinderbox that is the Middle East.

What are the counter-arguments? (The oral argument before the Court can be read and even heard in full; it makes for fascinating reading and listening.) Issues were raised by some of the justices in support of the law that even appellant’s attorney did not mention in oral argument. For example, the passport would simply record “Israel” (not Jerusalem, Israel), same as for a child born in Tel Aviv. There is nothing on the face of the passport that makes any kind of political statement; a reader would not even know that the child was born in Jerusalem.

Justice Kennedy suggested attaching a disclaimer to the passport to avert the political problem – to the effect that nothing recorded on the passport should be perceived as tantamount to recognition by the United States of Jerusalem as the capital of Israel. Such is done with Taiwan, which is not recognized as a country by the US but whose US citizens born there are listed as having been born in Taiwan, not, if appropriate, Taipei the capital.

Appellant argued in the alternative – that the information on an individual’s passport is a personal choice and therefore does not at all imply any formal diplomatic recognition, and that even if it does imply recognition, Congress has the right to override the president’s view, as was done more than a century ago when the Congress recognized Cuba over President McKinley’s opposition. (He later came around.)

Justice Scalia, logical as always, questioned whether recording a geographical fact in an official document amounted to formal diplomatic recognition, and asserted that Congress had the right to pass a law even if it angered the Palestinians or anyone else.

Indeed, Justice Alito underscored the farcical nature of this diplomatic dance by asking, rhetorically, does the United States recognize a birth certificate issued by Israel for those born in Jerusalem? Of course. Does the United States maintain that Israel is not sovereign in Jerusalem, such that Israel would have no right to prosecute a crime committed by an American in Jerusalem? Of course not. Additionally, diplomats and presidents who wish to visit with Israeli leaders and speak before its Parliament all go to Israel’s capital.

It emerges then that obviously some – in fact, many – attributes of sovereignty are exercised by Israel in Jerusalem and accepted by the United States – despite the State Department’s refusal to recognize the births of Americans there as occurring in Israel. As such, it falls under the purview of a congressional statute that should be enforced, regardless of the diplomatic consequences.

Appellant further claimed, slightly less persuasively, that individuals have the right to self-identify on their passports. The point was to negate the argument that recording “Israel” was the equivalent of recognition, but it leaves open the possibility of “Palestine” someday appearing on American passports as well.

Clearly, if the Court wished to do so, there are ample legal grounds to uphold the statute. There are also compelling logical grounds: for how long will the United States tap dance around the reality that Jerusalem is a city in Israel, much less its capital? Even farce should have its limits. We are no longer in1948. We are 47 years past the reunification of Jerusalem as one city under the sovereignty of Israel. If Barack Obama or John Kerry faced a Final Jeopardy question with their fortunes at stake that asked for the capital of Israel, they would both know what to answer. So,  why not stop the charade already?

In a week or so, hundreds of Jewish bigwigs will descend on the White House for the annual Chanukah party. Rather than making small talk with the President, half of the VIPs should ask him to free the ailing Jonathan Pollard and the other half should ask him to recognize Jerusalem as a city in the State of Israel. That would be an effective and intelligent use of their face time, perhaps accomplish some good, and vitiate the need for the Court to decide.

It would also justify the party itself, for Chanuka without Jerusalem is lame – just as Israel without Jerusalem is missing its soul. Let us hope that the people who attend and the Jewish organizations they represent can save one soul and redeem one holy city.

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6 responses to “Jerusalem on Trial

  1. Dr. Michael Oren, Israel’s former ambassador the United States, said last week that:
    “the left in Israel has crashed, because it has not yet internalized that the Palestinians are not part of the negotiations, and not interested in being so,” adding that:
    “the Palestinians have chosen a different path, the destructive path of delegitimization of Israel.”

    SOURCE: HaModia, Week in Review, 2014 Dec 10, page 62

  2. Without understanding Arab/Muslim honor,
    you cannot understand the Middle East:

    http://elderofziyon.blogspot.com/2014/07/without-understanding-arab-honor-you.html

  3. 7 Reasons Why Liberals are Incapable of Understanding the World:
    http://www.youtube.com/watch?v=YjfAFnw39qo

  4. Today, in 2014, it is possible to live in a fantasy world which treats A as B, even though the actual facts on the ground mark it A. Treating Jerusalem as though it was not Israel’s capital, when quite plainly it is, is one example. Another, which prompted this thinking, is the way left-wing organizations operate with the rest of Israel. Look at Wikipedia, an organization whose writers are thoroughly dominated by leftists. Read its posts on Hebron, Jerusalem, or countless other areas, and there is hardly any mention that they are in ISRAEL. You read of the West Bank, East Jerusalem, etc etc, but you’d never know anything about Israel. Of course, after the current fashion of anti-Semitism, this is always “sourced” in this Accord or that Agreement – whatever. They wish to transform their dreams into a self-created simply by pretending things aren’t there. This is also the way they hope to create a Palestinian state – treat it as though it is, and de facto it will become one.

    it’s useless and pointless to waste time arguing with such people, of course. The point is simply to be aware of the tactic for what it is. By the same token, Israel has (correctly) annexed certain areas, which is a form of the same tactic under a different name, and should be doing more of that for other areas. Stop calling them “disputed”, even if they are disputed, and start exhibiting signs of ownership.

    Regards, and HC.

  5. “Increasing number of Jewish Democrats disillusioned with Obama”
    SOURCE: Title of article by Isi Leibler, seen in
    The Manhattan Jewish Sentinel, 2014 December 12th, page 3.