Zivotofsky v. Kerry: Jerusalem status in the hands of SCOTUS

In October 2002, Menachem Zivotofsky was born in Jerusalem to American parents – a birth that would result in a major U.S. Supreme Court case ruling on the legal separation of powers and the political status of Jerusalem.

His birth certificate read simply: “Jerusalem.” Yet on September 30, 2002, President Bush signed into law the Foreign Relations Authorization Act, stating (section 214d) that for anyone born in Jerusalem, the Secretary of State “shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.” Accordingly, his parents requested that “Israel” be added to the place of birth on his passport. After all, and according to his lawyer, “That’s been the State Department’s practice.  The general rule for American citizens born abroad is that their passport list only a country of birth. […] So if a citizen is born for instance in Paris, it says France. If they’re born in Tel Aviv or Haifa, it says just Israel. If you’re born in Jerusalem, instead of saying the country, the city is listed — just a city – Jerusalem.”

{mosads}But much to the Zivotofsky family’s dismay, the State Department rejected their request that had just been permitted by the Foreign Relations Authorization Act. The Zivotofsky family sued then-secretary of state Hillary Clinton, and the Supreme Court ruled the Foreign Relations Authorization Act unconstitutional, as it infringed on the rights of the executive branch and the president to conduct foreign affairs.

The Supreme Court will return to this case on Monday, November 3, 2014 with the new title  “Zivotofsky v. [John] Kerry.” While the ruling is being discussed in the Supreme Court as a separation of powers issue, the case has clear political ramifications for the status of Jerusalem.

Some academics argue that this case is strictly legal, that argument is void. Although the Supreme Court may say differently, the Federal Appeals Court deems this is a political question, not a legal one. In addition, the Supreme Court blog shows that political organizations have gotten involved, namely American Jewish Committee, the Anti-Defamation League, Endowment for Middle East Truth (EMET) and the Louis D. Brandeis Center for Human Rights Under Law, and most recently, the American-Arab Anti-Discrimination Committee.

With Arab and Israeli activists getting involved, how is this case not political?

Furthermore, this case involves one of the most flammable disputes in the entire Israeli-Palestinian conflict. Israel claims that Jerusalem is rightly theirs as a result of the 1967 war that forced Israel to defend itself.  The international community’s response was Resolution 242 requiring Israel to withdraw from territories gained in the 1967 war, but not necessarily Jerusalem.

Thus, the decision will likely reflect which way the U.S. government leans on the status of Jerusalem since 1967. If the courts decide to grant Zivotofsky’s request, then Jerusalem will legally be under Israeli sovereignty. Even more, the Obama administration declared in 2011that to list Israel as the place of birth would be “tantamount to recognizing Jerusalem as the capital of the country.” On the other hand, denial of the request would constitute U.S. rejection of Israel’s annexation of Jerusalem. If that occurs, Israel supporters will likely question the U.S.’s respect for Israel’s rule and right in light of the self-defensive war of 1967. In short, the U.S. is stuck between a rock and a hard place, as the government has always pretended to be neutral on the status of Jerusalem.

Because both Israel and the Arabs claim sovereignty over Jerusalem, the decision of this case will likely affect the peace process either way the case goes. As a Columbia University Law School professor and former counselor on international law at the State Department, Sarah Cleveland told CNN, this case contains an “extremely important geopolitical issue and a very sensitive foreign relations issue for the United States.” After all, the case regards one of the most disputed cities in all of recorded history; and as such, it doesn’t really matter whether the case was intended to be political—it simply is.

Rudee is a contributor to the Franklin Center for Government & Public Integrity. She is a graduate of Scripps College, where she studied International Relations and Jewish Studies. Follow her @ellierudee.

Tags Hillary Clinton

The Hill has removed its comment section, as there are many other forums for readers to participate in the conversation. We invite you to join the discussion on Facebook and Twitter.

More Judicial News

See All
See all Hill.TV See all Video

Most Popular

Load more


See all Video