WASHINGTON — Confronting an issue fraught with Middle East politics, the Supreme Court has agreed to hear for the second time a passport dispute centering on whether Americans born in Jerusalem may list their place of birth as Israel.
The court said Monday it will review a lower court ruling that struck down a 2002 law that authorized identifying Jerusalem as part of Israel on U.S. passports. The law was passed over the objection of President George W. Bush, and the lower court said the law impermissibly infringed on the president’s power to recognize foreign governments. The Obama administration has taken the same position as its predecessor.
The U.S. has refused to recognize any nation’s sovereignty over Jerusalem since Israel’s creation in 1948.
The justices previously ruled on a different aspect of the case.
The challenge to the passport rule was brought by parents of an American boy named Menachem Zivotofsky, who was born in a Jerusalem hospital soon after the law was passed.
The law was part of a large foreign affairs bill that Bush signed into law. But even as he did so, he issued a signing statement in which he said that “U.S. policy regarding Jerusalem has not changed.”
Had Zivotofsky been born in Tel Aviv, the State Department would have issued a passport listing his place of birth as Israel. The regular practice for recording the birth of a U.S. citizen abroad is to list the country where it occurred.
But the department’s guide tells consular officials, “For a person born in Jerusalem, write Jerusalem as the place of birth in the passport.”
Ever since President Harry S. Truman recognized Israel upon its declaration of nationhood in 1948, no president has accepted permanent Israeli rule over the entirety of Jerusalem. Since Israel’s victory in the 1967 Six-Day War brought the entire city under Israeli control, U.S. policy has regarded the sensitive status of Jerusalem as something ultimately to be determined in talks between Israel and its negotiating partners. The U.S. Embassy remains in Tel Aviv.
In 1995, Congress essentially adopted the Israeli position, saying the U.S. should recognize a united Jerusalem as Israel’s capital. Shortly before Zivotofsky’s birth, lawmakers passed new provisions urging the president to take steps to move the embassy to Jerusalem and allowing Americans born in Jerusalem to have their place of birth listed as Israel.
Zivotofksy is now 11, and his Washington lawyer, Nathan Lewin, said when he filed the Supreme Court appeal that he hoped the boy’s passport could be changed to reflect Israel as his place of birth before his bar mitzvah. Jewish boys have their bar mitzvah at the age of 13.
The court will hear the case in the fall and should hand down a decision by June 2015. Zivotofsky will turn 13 four months later.
The case is Zivotofsky v. Kerry, 13-628.