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Op-Ed

Overturn the U.S. Court Decision: Jerusalem is Israel's Capital

Abraham H. Foxman
National Director of the Anti-Defamation League

This article originally appeared in Haaretz on July 25, 2013

The decade-long struggle to get the United States to allow “Jerusalem, Israel” on passports of U.S. citizens born in Jerusalem was dealt another blow this week, when a federal appeals court ruled that doing so would infringe on the U.S. president’s power to recognize foreign governments. As a consequence, “Jerusalem” will continue to stand alone on those passports without a country designation.

The decision by a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia stems from a lawsuit filed a decade ago by Ari and Naomi Zivotofsky, whose son Menachem was born in Jerusalem and is a U.S. citizen. The Zivotofskys sought to identify Israel as the birthplace on their son’s passport.

This should not be a question of technicalities or legalities or separation of powers. It should be a question of sensible public policy – recognition of the special relationship between the U.S. and Israel.

Jerusalem was always the capital of Israel, since before the 1967 war and the reunification of Jerusalem. Yet the U.S. has been unwilling for 65 years to grant its number-one ally the courtesy and respect to say, “This is your capital.”

This response borders on the offensive: How has this issue become so political and so expedient when it needn’t be so?

In 2002, Congress passed Section 214(d) of the Foreign Relations Authorization Act, a law permitting an American citizen born in Jerusalem to identify him or herself as having been born in “Israel” – not “Jerusalem, Israel,” but simply “Israel.”

The State Department has since refused to enforce the law, and currently, citizens born in Jerusalem may only list “Jerusalem” on their passports, without a country.

Foggy Bottom insists that allowing this administrative act – a notation that reflects an individual’s self-identification and understanding about their place of birth – somehow unconstitutionally “usurps” the executive branch’s exclusive power to recognize, or decline recognition of, foreign sovereigns.

However, the State Department’s own Foreign Affairs Manual belies this claim. The manual clearly states that the “place of birth” designation merely “distinguishes that individual from other persons with similar names and/or dates of birth.” Permitting citizens to assert their self-identity can hardly be considered a usurpation of presidential powers.

But beyond simply allowing for this autonomy in self-identification, this congressionally approved ministerial act accomplishes another important function: It corrects the inherently discriminatory practice of forbidding Jerusalem-born American citizens to identify their place of birth as Israel.

The court’s decision invalidating the law effectively reinstates this discriminatory regime. Jerusalem-born American citizens who want to identify their place of birth as Israel are deprived of the right to identify themselves on their passports as they desire. This is a civil right endowed to American citizens born in territories not even recognized by the United States.

We hope that this reprehensible decision will be overturned on appeal.

Furthermore, the State Department maintains very different rules for those who object to identifying Israel as their birthplace on their passports than for those who wish to do so.

U.S. citizens born prior to 1948 in what is presently recognized by the U.S. as Israel, who object to having their place of birth recorded as Israel, may refuse to list it as their place of birth. Indeed, Americans may choose to identify their place of birth as “Palestine” - a country not recognized by the U.S. By contrast, those who are born in Jerusalem - even West Jerusalem, like Zivotofsky - who wish to record their place of birth as Israel may not do so.

In other words, an American citizen born in Tel Aviv or Haifa or anyplace else in Israel, but who objects for political reasons to listing his place of birth as Israel, is entitled to either list his place of birth as “Palestine” (if born before 1948) or, in any event, not have his or her place of birth listed as Israel – even though Israel has sovereignty over that city of birth.

In those instances, the State Department permits that citizen to self-identify in a way that contradicts both the executive’s recognition of Israel and the State Department’s general rule.

All other American citizens born abroad may choose to list a city or area of birth as they choose. Congress acted within its power when it gave individuals like the Zivotofskys the option to list their son’s place of birth as Israel.

Hopefully, the Supreme Court will now take up the case and compel the State Department to enforce this sensible law.

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"The court’s decision invalidating the law effectively reinstates this discriminatory regime. Jerusalem-born American citizens who want to identify their place of birth as Israel are deprived of the right to identify themselves on their passports as they desire. This is a civil right endowed to American citizens born in territories not even recognized by the United States."

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