U.S. Supreme Court Could Decide Nation Status of Jerusalem

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(Photo by Omer Messinger/NurPhoto/Sipa USA) (Sipa via AP Images)

Author's update: Congress cannot force the executive branch to recognize Israeli sovereignty in Jerusalem, the Supreme Court ruled yesterday. The 6-3 decision in Zivotofsky v. Kerry was a narrow separation-of-powers victory for the presidency in setting foreign policy. It was also a major defeat for the Israeli government and the American Israel Public Affairs Committee (AIPAC) in their Congressional strategy-bypassing the White House and attempting to set American policy toward Israel via Capitol Hill.

The case dealt with a 2002 provision that required the State Department to register the place of birth of U.S. citizens born in Jerusalem as Israel, if so requested. In an article last fall (below), before oral arguments in Zivotosky, I explained the case, the law and the policy that Congress tried to change.

My children were born in Jerusalem-to be precise, in West Jerusalem. As dual citizens, they each have an Israeli passport and an American one. In the Israeli documents, their birthplace is listed as Israel. On their U.S. passports, on the line for place of birth, "Jerusalem" appears instead of the name of a country. They applied for their passports at the U.S. Consulate in Jerusalem-which, unusually enough, is not under the auspices of an embassy but reports directly to Washington. The United States does not recognize Jerusalem as being a de jure part of any country.

Occasionally, I get a chuckle out of the absurdity of this policy. But then, I think of the pride and wonder that my great-grandfather-who lived and died under the czar, in the condition called golus, exile, in Yiddish-would feel if he saw "Place of birth: Jerusalem" in his descendants' passports. Who could possibly object to being identified as being born in Jerusalem?

Quite a few people. Next Monday, the U.S. Supreme Court will hear arguments in the case of Zivotofsky v. Kerry, capping an 11-year legal battle by the parents of Menachem Binyamin Zivotofsky to have "Israel" rather than "Jerusalem" listed as his place of birth. A host of organizations have filed amicus curiae briefs. If the present American policy is peculiar, it doesn't begin to match the absurdities-not to mention the recklessness-of the lawsuit and the law on which it is based.

Some history: When the United Nations voted in 1947 to partition British-ruled Palestine, it stipulated that Jerusalem would become an "international city." The area designated by the U.N. decision was much larger than the city, though. The map was clearly drawn to keep Christian holy sites from falling under Jewish or Muslim rule. So, for example, "Jerusalem" included the town of Bethlehem. A faint whiff of the Crusades rose from the maps.

United States Government

As things turned out, though, the United Nations didn't get a chance to implement partition. War, followed by armistice accords, determined the borders of the new State of Israel. Under the 1949 Israeli-Jordanian agreement, the armistice line cut through Jerusalem. What was henceforth known as East Jerusalem was under Jordanian rule. West Jerusalem was Israeli, and Israel declared the city its capital.

U.S. policy, as a former American diplomat explained to me this week, eventually treated all territory on Israel's side of the armistice line (a.k.a. the Green Line) as sovereign Israel-with the glaring exception of West Jerusalem. In 1949, America supported U.N. Resolution 194 as the basis for Arab-Israel peace. That resolution again called for establishing a "permanent international regime for… Jerusalem." The United States therefore regarded West Jerusalem as being under de facto-but not de jure-Israeli rule. Sovereignty, America insisted, was in abeyance.

In 1949, perhaps internationalizing Jerusalem sounded plausible. As time passed, treating West Jerusalem as if it weren't Israeli territory defied logic and reality. But then, in 1967, Israel conquered the West Bank in the Six Day War. It quickly "united" Jerusalem-actually annexing land well beyond East Jerusalem's city limits-and declared that the whole city was its capital. Eventually, Israel moved some of its government offices to East Jerusalem.

Since 1967, logical inconsistency has become diplomatic necessity. Quite reasonably, President Obama has stated that the baseline for negotiations on a two-state agreement is the Green Line. Yet his administration, like its predecessors, treats the part of Jerusalem on the Israeli side of that line (the part where, as it happens, I live) as not being part of Israel. This is nutty, but quite pragmatic. Any change in U.S. policy toward the city would reverberate internationally, and especially in the Arab world, as accepting the annexation. In theory, America could still recognize West Jerusalem alone as Israel's capital. Practically, the subtlety would be missed, given Israeli insistence that there is only one city. Until an Israeli-Palestinian peace agreement is reached, no responsible U.S. administration will change the policy.

Enter Congress, with the American Israel Public Affairs Committee talking forcefully in its ear. In September 2002, Congress passed the Foreign Appropriations Act for fiscal 2003. Section 214 addresses U.S. policy "with respect to Jerusalem as the capital of Israel." It defunds the Jerusalem consulate unless it is put under the supervision of the U.S. ambassador to Israel. It also requires the State Department to register the place of birth of U.S. citizens born in Jerusalem as Israel, if the citizen or her guardian so requests.

In a seeming effort to resolve the old absurdity, the law introduces new madness: It doesn't say what "Jerusalem" means

. Remember, the boundaries of the city are a subject of international dispute. (If you want a clearer picture of the multiple borders of Jerusalem, click the map.) Does the law require the State Department to treat West Jerusalem as part of sovereign Israel, creating a consistent policy that the Green Line is Israel's border? Or has Congress told State to recognize Israel's annexation of East Jerusalem? Laws are often unclear. In this case, though, the ambiguity is either invidious or reflects legislative negligence.

Both the Bush administration and the Obama administration have ignored Section 214, asserting that constitutionally, the executive branch alone has exclusive power to recognize governments and borders. The Zivotofsky test case was filed in 2003, and has bounced up and down the judicial ladder since. Part of the argument has centered on the constitutional issue. Allow me to the leave that issue to constitutional experts, because other facets of the case demand attention.

For instance, there are the friend-of-the-court briefs from U.S. Jewish organizations, all but one backing Zivotofsky. Formally, each group has to explain its interest in the case. Legally, the explanations matter little. As public statements, they matter a great deal. In the joint brief of more than a dozen organizations, B'nai B'rith International identifies itself as "the global voice of the Jewish community." When, I must ask, did the Jews of the world grant it that power of attorney? The Union of Orthodox Jewish Congregations of America bases its interest in the case on the "symbolic value" of Jerusalem for Orthodox Jews, who pray thrice daily facing the city. As an Orthodox Jew, I am baffled as to how an American passport impinges on that symbolic value.

But I do think the word "symbolic" says a great deal about all these groups' involvement in the case: They desire the symbolism of American recognition-and pay much too little attention to the potential impact of the court's decision on the actual city, which is fragile and flammable. I fear they are more concerned with the ethereal Jerusalem than the real Jerusalem.

The latest brief filed in the petitioner's name, by the way, asserts that the constitutional issue is not the core of the case. "Our primary contention," his attorneys write, "is that the designation of a birthplace on a passport does not implicate recognition" of sovereignty. The real issue-as they indicated in an earlier brief-is that Congress has given Americans born in Jerusalem "the right" to list Israel as their birthplace. Or, as one of the amici briefs says, it's all about the "right of a US citizen to identify the country in which he or she was born."

There are two ways to read this, and both are absurd. One is that the U.S. government really, deep down, already recognizes that Jerusalem is sovereign Israeli territory, and is just being ornery about writing this in passports. The other is that citizens can decide for themselves what country their birthplace is in-and have that country listed in their U.S. travel document. I once debated an American-born resident of the West Bank settlement of Efrat who insisted she lived in Israel, even though the Israeli government itself does not claim sovereignty there. If she gave birth at home, should she also have a right to list her child's birthplace as Israel, because that's how she sees it?

Or there's a third reading: Congress has recognized Jerusalem - whatever it means by that - as part of Israel, and Menachem Zivotofsky's parents and their supporters are asking the Supreme Court to enforce that decision, whatever the consequences. I'm sure the justices will weigh the legal issues, but it's naïve to believe they'll shut out the policy issue. They don't need to rule in favor of executive power to rule against the petitioner. There are other grounds (that's another story) for throwing the case out. I can only hope that we don't face yet another absurdity: the U.S. Supreme Court deciding the status of Jerusalem.

Click here to read Justice Anthony Kennedy's majority opinion in Zivotofsky v. Kerry, and click here to read Chief Justice John Roberts' dissent.