U.S. Supreme Court strikes down Jerusalem passport law

The U.S. Supreme Court struck down a law that would allow Jerusalem-born U.S. citizens to list their birthplace as Israel.

The bid to force the State Department to follow the 2002 law failed in a 6-3 vote announced on Monday.

The decision, a rare judicial branch foray into the centuries-old tension between the legislative and executive branches on how foreign policy is shaped, could have far-reaching consequences on the degree to which congressional legislation may determine presidential decisions on foreign policy.

Presidents George W. Bush and Barack Obama refused to apply the law, arguing that it infringed upon the president’s foreign policy prerogative. It has been U.S. policy since Israel’s founding not to recognize Jerusalem as Israeli.

Justice Anthony Kennedy, who has swung between the left and the right, wrote the majority opinion, backed by the bench’s four liberal judges, among them three Jewish justices, and one of its conservatives, Clarence Thomas. The three dissenters, Justices Antonin Scalia and Samuel Alito and Chief Justice John Roberts, all are conservative.

The focus of the case was Menachem Zivotofsky, now 12, whose parents sought the passport listing not long after he was born.

An array of pro-Israel groups backed the Zivotofskys in friend-of-the-court briefs, although at least one, Americans for Peace Now, supported the executive prerogative in determining foreign policy.

A spokesman for Israel’s Foreign Ministry following the decision said, “We do not react publicly to foreign court rulings.”

U.S. Supreme Court divided on Jerusalem passport case

The U.S. Supreme Court on Monday appeared closely divided as it weighed the constitutionality of a law that was designed to allow American citizens born in Jerusalem to have Israel listed as their birthplace on passports.

The case concerns the longstanding U.S. policy that the president, and not Congress, has sole authority to provide American recognition of who controls Jerusalem, which is claimed by Israelis and Palestinians.

Seeking to remain neutral on the hotly contested issue, the U.S. State Department allows passports to name Jerusalem as a place of birth, but no country name is included.

The State Department, which issues passports and reports to the president, has declined to enforce the law passed by Congress in 2002, saying it violated the separation of executive and legislative powers laid out in the U.S. Constitution.

During a one-hour argument, the liberal justices on the nine-member court signaled support for the government while conservative justices were more sympathetic to Ari and Naomi Zivotofsky, the parents of U.S. citizen Menachem Zivotofsky, who was born in Jerusalem in 2002. The parents would like their 12-year-old son's passport to say he was born in Israel.

Justice Anthony Kennedy, often the court's swing vote in close decisions, is likely to again find himself in that position in this case.

He signaled some support for the government, saying that if the case rests on who gets to recognize a foreign government's authority, the State Department “should be given deference.”

However, he also indicated a possible compromise in which the law is enforced but the government adds disclaimers in passports saying the place of birth is not intended to recognize Israel's sovereignty over Jerusalem.

The State Department's position is that a loss for the U.S. government would be perceived around the world as a reversal of American policy that could cause “irreversible damage” to America’s power to influence the region's peace process, according to court papers.

The government has noted that U.S. citizens born in other places in the region where sovereignty has not been established, including the West Bank and the Gaza Strip, are similarly prevented from stating a country of birth on their passports.

While Israel calls Jerusalem its capital, few other countries accept that status. Most, including the United States, maintain their embassies to Israel in Tel Aviv. Palestinians want East Jerusalem, captured by Israel in the 1967 Middle East war, as capital of the state they aim to establish alongside Israel in the West Bank and Gaza Strip.

A ruling is due by the end of June. The case is Zivotofsky v. Kerry, U.S. Supreme Court, 13-628.

Images, memories and sounds paint vision of my Israel

This is the second in a series of weekly columns celebrating Israel’s 60th anniversary, leading up to Yom HaAtzmaut, Israel Independence Day, in May.

Israel is…

Where I was born. Where I ate my first Popsicle and used a proper toilet for the first time. Where some of my 18-year-old friends spend their nights in bunkers sleeping with their helmets on. Where security guards are the only jobs in surplus. Where deserts bloom and pioneer stories are sentimentalized. Where a thorny, sweet cactus is the symbol of the ideal Israeli. Where immigrating to Israel is called “ascending” and emigrating from Israel is called “descending.” Where my grandparents were not born, but where they were saved.

Where the year passes with the season of olives, of almonds, of dates. Where the transgressive pig or shrimp dish speaks defiantly from a Jerusalem menu. Where, despite substantial exception, secularism is the rule. Where wine is religiously sweet. Where “Arabic homes” is a positive real estate term with no sense of irony. Where there is endless material for dark humor. Where there are countless words for “to bother,” but no single one yet for “to pleasure.” Where laughter is the currency; jokes the religion. Where political parties multiply more quickly than do people. Where to become religious is described as “returning to an answer” and becoming secular “returning to a question.”

Where six citizens have won Nobel prizes in 50 years. Where the first one earned an Olympic gold in 2004 for sailing (an Israeli also won the bronze for judo). Where there is snow two hours north and hamsin (desert wind) two hours south. Where Moses never was allowed to walk, but whose streets we litter. Where the language in which Abraham spoke to Isaac before he was to sacrifice him has been resuscitated to include the words for “sweatshirt” and “schadenfreude” and “chemical warfare” and “press conference.” Where the muezzin chants, and the church bells sound and the shofars cry freely at the Wall. Where the shopkeepers bargain. Where the politicians bargain. Where there will one day be peace but never quiet.

Where I was born; where my insides refuse to abandon.

This piece is an excerpt from Alan Dershowitz’s book, “What Israel Means to Me” (Wiley, $15.95).

Natalie Portman is an actress who has starred in many films, including “Anywhere But Here,” “Where the Heart Is,” “Closer” and the “Star Wars” prequels. She made her Broadway debut playing the title role in “The Diary of Anne Frank.” She was born in Jerusalem, speaks fluent Hebrew, and graduated from Harvard University.