The U.S. Supreme Court rules that the State Department can continue refusing to print ‘Israel’ as the place of birth for American citizens born in Jerusalem. ‘Neither Israel nor any other country is acknowledged as having sovereignty over Jerusalem,’ Justice Kennedy writes in the majority opinion.
By Lolita Brayman
The U.S. might be Israel’s strongest ally but that doesn’t mean Washington is willing to toe the Israeli line on the status of Jerusalem. For decades, the United States’ policy has been in line with the rest of the international community, not recognizing Jerusalem as Israel’s capital. The rationale is that since the city’s only internationally accepted legal standing is that of an international city, a product of the 1947 Partition Plan, its contemporary status must be determined via negotiations — and not unilateral declaration.
The U.S. Supreme Court made a historic decision on Monday that rightly placed the politics of foreign affairs, and the Israeli-Palestinian conflict, outside its sphere of objectivity. In a 6-to-3 vote, the majority of justices struck down a 2002 congressional regulation that allowed those born in the city of Jerusalem to record the place of birth as Israel in their passports.
The case was about Section 214(d) of the Foreign Relations Authorization Act, passed by Congress in 2002, which in contradiction of State Department’s guidelines allowed for listing only a city on a passport if a nation’s borders are in dispute. Moreover, under the U.S. Constitution, Congress is not permitted to interfere with the president’s authority to determine terms on which recognition is given to foreign states.
The validity of the congressional policy was brought to the Supreme Court by the parents of Menachem Binyamin Zivotofsky, who wanted their American son’s passport to list “Israel” as the place of birth and not simply “Jerusalem,” where he was indeed born in October 2002. When the case was first heard in 2012 by the Supreme Court, the majority opinion stated that the constitutionality of the statute could be resolved by the U.S. Court of Appeals because it was a separation of powers issue, even though such a decision might touch on political areas.
Fast forward to this Monday. The status of Jerusalem remains undetermined and the Supreme Court still refused — this time more definitively — to get tangled up in the weeds of diplomacy and foreign affairs. The State Department can continue to refuse to print “Israel” as the place of birth for U.S. citizens born in Jerusalem.
So what’s really the difference between writing “Jerusalem, Israel” and just “Jerusalem” on an American passport? Are the two not synonymous as far as the 1967 occupation of East Jerusalem is concerned?
Not to most Palestinians. Not to those who squarely deny Israel’s right to exist in any form. But most importantly in this case — not to the American government. Even if “West Jerusalem, Israel” was listed as the birthplace on Zivotofsky’s passport, the executive and legislative branches of the U.S. government would likely disagree on the implications of such a classification.
U.S. Supreme Court Justice Elena Kagan said it best: “history suggests that everything is a big deal with respect to the status of Jerusalem.”
The U.S. Supreme Court did not decide on the status of Jerusalem but it still got sucked into a political power struggle by simply uttering the name of the city. In Justice Kennedy’s opinion, which Justices Ginsburg, Breyer, Sotomayor, and Kagan joined, he blatantly said: “neither Israel nor any other country is acknowledged as having sovereignty over Jerusalem.” A neutral comment, but nonetheless loaded. When it comes to Israel and Palestine, going to court is never just about judicial redress — even in the highest of American courtrooms.
Justice Kennedy’s above admission on Jerusalem’s sovereignty was never a secret and always implicitly implied in U.S. and Israeli relations. In fact, all foreign embassies in Israel, including the American one, are located in Tel Aviv and not Jerusalem because no country in the world recognizes it to be Israel’s capital. The few embassies that remained in Jerusalem moved to Tel Aviv in the early 1980s in protest of the passage of a Basic Law in Israel declaring the Holy City the capital.
But despite there being absolutely no ambiguity on the issue, the Supreme Court’s decision will nevertheless be perceived as a blow to the Israeli lobby and Prime Minister Netanyahu will likely spin it as yet another instance of the world being against Israel. Moreover, pro-Israel lobby groups will almost certainly make this a significant issue in upcoming campaigns. Meanwhile, the American-Arab Anti-Discrimination Committee (ADC) has already issued a celebratory statement.
In his dissenting opinion, Chief Justice John Roberts minimized the majority’s concern to a mistaken understanding of the effect of the law, specifically that some observers overseas would interpret it as altering U.S. policy regarding Jerusalem: “expanding the President’s purportedly exclusive recognition power to include authority to avoid potential misunderstandings of legislative enactments proves far too much.”
Potential misunderstandings exist no matter the outcome, as is the nature of the conflict. But the dissenting justices fail to recognize that the main purpose of the 2002 congressional statute was to undermine the executive branch’s policy regarding Jerusalem. Moreover, it would be a violation of international law to recognize a unified Jerusalem as belonging wholly to Israel. In response to the Knesset’s adoption of the “Jerusalem Law” in 1980, which declared a complete and united Jerusalem as the capital of Israel, the UN Security Council subsequently and unanimously adopted Resolution 478 declaring the law void.
The U.S., of course, abstained from that Security Council vote, but over the years has dealt extremely vague interpretations of the status of Israel’s annexation of East Jerusalem and Jerusalem’s municipal boundaries. Since 1967, the U.S. viewed East Jerusalem as being under Israeli occupation but the Clinton administration changed that, stating its sovereignty was undefined. Since then Congress has repeatedly tried to unite Jerusalem legislatively, with the Jerusalem Embassy Act of 1995, and later again, albeit more subtlety, with the Jerusalem Passport Law in 2002. But presidents Clinton, Bush, and Obama refused to enact these laws, viewing them as constitutional violations of their executive authority — and ostensibly recognizing their potential to prejudge the outcome of the peace process.
Now that the Supreme Court has finally weighed in on the matter, Washington’s ambiguous stance on Jerusalem’s status will likely remain ambiguous. And while the U.S. legislative and executive branches continue to step on each other’s toes, the status quo in the region will also remain intact.
Lolita Brayman is a lawyer and former editor at Haaretz.com with an M.A. in conflict resolution and mediation from Tel Aviv University. Follow her on Twitter at @lolzlita.