Published March 26, 2012
WASHINGTON – The Supreme Court ruled Monday that the federal courts should decide whether a law that would allow Jerusalem-born Americans to list Israel as their birthplace on their U.S. passport passes constitutional muster.
The justices, on an 8-1 judgment, overturned a lower court ruling that said the judiciary could not get involved in a political fight mixing Middle Eastern politics with a dispute between Congress and the president.
"The courts are fully capable of determining whether this statute may be given effect, or instead must be struck down in light of authority conferred on the executive by the Constitution," said Chief Justice John Roberts, who wrote the majority opinion.
But because the lower courts never actually ruled on the merits of the law giving Americans born in Jerusalem the right to have Israel listed as their birthplace -- only that judges should not get involved -- Roberts said the high court did not have enough facts to determine the law's constitutionality.
"Ours is a court of final review and not first view," said Roberts, who sent the case back down to the lower courts for rehearing.
The parents of Jerusalem-born Menachem Zivotofsky sued the State Department after it wouldn't issue the boy a passport showing he was born in Israel. The United States has refused to recognize any nation's sovereignty over Jerusalem since Israel's creation in 1948.
At the time, Jerusalem was divided, with Israel controlling the western part of the city and Jordan holding sway over the eastern sector that includes key Jewish, Muslim and Christian holy sites. Israel captured east Jerusalem from Jordan in the 1967 Mideast war, annexed the area and proclaimed the once-divided city as its capital. The Palestinians claim east Jerusalem as their capital.
The international community does not recognize the Israeli annexation and says the fate of the holy city should be resolved through negotiations.
Congress passed the law seeking to give Americans born there the right to have Israel listed as their birthplace in 2002; but Republican and Democratic administrations have refused to enforce it. The government said the passport policy is in line with longstanding U.S. foreign policy that says the status of Jerusalem should be resolved in negotiations between Israel and the Palestinians.
Justice Stephen Breyer was the only dissenter on the court, saying there is a "serious risk" that judicial "intervention will bring about `embarrassment,' show lack of `respect' for the other branches, and potentially disrupt sound foreign policy decision making."
The U.S. Court of Appeals for the District of Columbia Circuit agreed, saying that the federal judiciary has no authority to consider the matter, which they have labeled a political dispute that is best resolved by the other two branches of government without court involvement.
The Obama administration, like its Republican and Democratic predecessors, says it doesn't want to stir up anger in the Arab world by appearing to take a position on the ultimate fate of Jerusalem.
But Roberts said the question before the court is not a political one.
"The federal courts are not being asked to supplant a foreign policy decision of the political branches with the courts' own unmoored determination of what the United States policy toward Jerusalem should be," Roberts said. "Instead, Zivotofsky requests that the courts enforce a specific statutory right. To resolve his claim, the judiciary must decide if Zivotofsky's interpretation of the statute is correct, and whether the statute is constitutional. This is a familiar judicial exercise."
The passport restriction applies to people born anywhere in Jerusalem, including the hospital in the western part where Menachem was born in 2002.
In late 2002, Naomi Zivotofsky, Menachem's mother, showed up at the U.S. embassy in Tel Aviv to get her baby a U.S. passport, one that listed Israel as his birthplace. After State Department officials refused her request, the family sued.
The family argues that the State Department has made an exception for U.S citizens born in Taiwan. Their passports may list their place of birth as Taiwan, rather than China. They also note that the State Department gives people born before Israel's creation in 1948 the option to say they were born in Palestine.