WASHINGTON - American parents of a boy born in Jerusalem can go to court to argue that their son's US passport can list Israel as his birthplace, the US Supreme Court ruled on Monday in a setback for the US government.
Since the founding of Israel in 1948, successive American governments have declined to recognize any country as having sovereignty over Jerusalem, which is home to the holiest sites in Judaism and Christianity and to the third holiest site in Islam.
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The State Department, applying long-standing US policy, insisted that nine-year-old Menachem Zivotofsky's birth certificate, and thus his passport, show Jerusalem - with no country specified - as the place of birth.
It rejected his mother's request that it also list Israel.
The parents, Naomi and Ari Zivotofsky, filed a lawsuit in 2003 challenging this in federal court in Washington, DC, basing their argument on a 2002 American law, passed just before Menachem was born.
Menachem Zivotofsky with his father (Photo: AP)
This law included a provision allowing Israel to be listed as the place of birth on the passport of any American born in Jerusalem.
A Federal judge and then an appeals court dismissed the lawsuit on the grounds that judges have no authority to order the federal government to change US foreign policy.
However on Monday, the Supreme Court ruled that lower courts had misunderstood the issue and said the case was merely whether Zivotofsky could have the right "to have Israel recorded on his passport as his place of birth."
"Zivotofsky does not ask the courts to determine whether Jerusalem is the capital of Israel," Chief Justice John Roberts said in an opinion. Justice Stephen Breyer dissented.
Previous US Presidents George W. Bush and current President Barack Obama both refused to follow the 2002 law on the grounds that the US Congress unconstitutionally infringed on the president's power to formulate foreign policy.
Nathan Lewin, a Washington DC-based attorney who represented the Zivotofsky family before the Supreme Court, said Congress had the power to control a passport's contents.
The ruling could affect approximately 50,000 American citizens who have been born in Jerusalem, giving them the option of listing Israel as their birthplace.
Zivotofsky was born on Oct. 17, 2002, in a hospital in west Jerusalem. His US-born parents moved to Israel in 2000. Because his parents are US citizens, Menachem is also a US citizen.
The Anti-Defamation League (ADL) welcomed the US Supreme Court's decision. "We are gratified that the Supreme Court will let the Zivotofskys pursue their effort to list 'Israel' as their son's place of birth on his American passport. Even though Congress passed a law granting them this right a decade ago, the State Department has refused to enforce it – and up until now lower courts have declined to get involved," Director Abe Foxman said.
"We are pleased that the Supreme Court has directed a lower court to review the law's constitutionality. The lower court should find, as we argued in our coalition brief, that the purpose of a passport is for identification, not to set or implement foreign policy. Congress acted within its power when it gave individuals like the Zivotofskys the option to list their son's place of birth as Israel."
While Israel calls Jerusalem its eternal and indivisible capital, few other countries accept that status. Most, including the United States, maintain their embassies to Israel in Tel Aviv.
Palestinians want est Jerusalem, captured by Israel in 1967, as capital of the state they aim to establish in the West Bank and Gaza Strip, alongside Israel.
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