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Born in Jerusalem, and Israel?

November 3, 2014

Twelve-year-old US-Israeli citizen Menachem Zivotofsky was born in Jerusalem, as it states on his US passport. His parents would like his place of birth to read "Israel" instead - a potentially prickly political appeal.

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Grundsatzurteil USA zur Patentierung menschlichen Erbguts
Image: Getty Images

The US Supreme Court appeared divided on Monday (03.11.2014) as it opened a hearing asking whether American citizens born in Jerusalem should have their place of birth listed as "Israel," as opposed to "Jerusalem," on their passports. The specific case was filed by Ari and Nomi Zivotofsky, on behalf of their son Menachem. Lower courts refused to rule on the matter, given its sensitivity.

Jerusalem's status internationally is problematic; Israel recognizes the entire city as its capital, while Palestinians hope in time for East Jerusalem to be named the capital of an independent Palestine. Like many international actors, the US has not officially recognized either claim to the city, holy to three faiths. Most international embassies to Israel, the US one included, are located in Tel Aviv instead.

The case pits a 2002 Congressional order signed just before Zivotofsky's birth, ordering that Jerusalem-born citizens should have their place of birth marked as Israel, against the reservations held by both Barack Obama and his predecessor George W. Bush. When Bush signed the broader Foreign Relations Authorization Act into law, he issued an executive "signing statement" saying that he would not comply with Section 214 on the Jerusalem passport issue.

"Section 214, concerning Jerusalem, impermissibly interferes with the president's constitutional authority to conduct the Nation's foreign affairs and to supervise the unitary executive branch," Bush wrote. Bush also said that the proposal, "if construed as mandatory rather than advisory," could limit a president's powers to "determine the terms on which recognition is given to foreign states." Obama has not changed this position since taking office.

Division among the judges, verdict expected next year

During an hour-long opening argument in Washington on Monday, the nine Supreme Court judges seemed divided in their initial interpretations of the case.

Conservative judge Antonin Scalia seemed to favor the Zivotofskys' case, rejecting the State Department's claims that the change would be poorly received among Palestinians and could cause "irreversible damage" to Washington's ability to broker future peace efforts.

"This is not recognition. It just has an effect on the State Department's desire to make nice with the Palestinians," Scalia said, also questioning whether foreign policy concerns should impede on the legislative's powers. "If it is within Congress' power, what difference does it make whether it antagonizes foreign countries?"

However, Obama appointee Elena Kagan, one of three Jewish justices at the Supreme Court, warned that the recent violence in the region showed the sensitivity of even minor matters concerning Jerusalem. She alluded to the recent violence in the city, and the resultant, brief closure last week of the religious site known to Jews as the Temple Mount and to Muslims as the Noble Sanctuary.

"Right now Jerusalem is a tinderbox," she said. "History suggests that everything is a big deal with respect to Jerusalem." Kagan also noted that Jerusalem-born US citizens of Palestinian heritage did not have the option of listing their place of birth as "Palestine."

Reports out of Washington suggested that Justice Anthony Kennedy, often the "swing vote" on the nine-judge panel in close decisions, might again hold the decisive ballot. A ruling is due by the end of June next year.

msh/bk (AFP, AP, Reuters)