U.S. Supreme Court divided on Jerusalem passport case

Reuters News
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Posted: Nov 03, 2014 11:30 AM

By Lawrence Hurley

WASHINGTON (Reuters) - The U.S. Supreme Court on Monday appeared closely divided as it weighed the constitutionality of a law that was designed to allow American citizens born in Jerusalem to have Israel listed as their birthplace on passports.

The case concerns the longstanding U.S. policy that the president, and not Congress, has sole authority to provide American recognition of who controls Jerusalem, which is claimed by Israelis and Palestinians.

Seeking to remain neutral on the hotly contested issue, the U.S. State Department allows passports to name Jerusalem as a place of birth, but no country name is included.

The State Department, which issues passports and reports to the president, has declined to enforce the law passed by Congress in 2002, saying it violated the separation of executive and legislative powers laid out in the U.S. Constitution.

During a one-hour argument, the liberal justices on the nine-member court signaled support for the government while conservative justices were more sympathetic to Ari and Naomi Zivotofsky, the parents of U.S. citizen Menachem Zivotofsky, who was born in Jerusalem in 2002. The parents would like their 12-year-old son's passport to say he was born in Israel.

Justice Anthony Kennedy, often the court's swing vote in close decisions, is likely to again find himself in that position in this case.

He signaled some support for the government, saying that if the case rests on who gets to recognize a foreign government's authority, the State Department "should be given deference."

However, he also indicated a possible compromise in which the law is enforced but the government adds disclaimers in passports saying the place of birth is not intended to recognize Israel's sovereignty over Jerusalem.

The State Department's position is that a loss for the U.S. government would be perceived around the world as a reversal of American policy that could cause “irreversible damage” to America’s power to influence the region's peace process, according to court papers.

The government has noted that U.S. citizens born in other places in the region where sovereignty has not been established, including the West Bank and the Gaza Strip, are similarly prevented from stating a country of birth on their passports.

While Israel calls Jerusalem its capital, few other countries accept that status. Most, including the United States, maintain their embassies to Israel in Tel Aviv. Palestinians want East Jerusalem, captured by Israel in the 1967 Middle East war, as capital of the state they aim to establish alongside Israel in the West Bank and Gaza Strip.

A ruling is due by the end of June. The case is Zivotofsky v. Kerry, U.S. Supreme Court, 13-628.

(Reporting by Lawrence Hurley; Editing by Will Dunham)