A US Supreme Court passport battle, courtesy of a lifelong friendship
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A US Supreme Court passport battle, courtesy of a lifelong friendship

Ari Zivotofsky might have never launched 12-year case that could change Washington's policy on Jerusalem had a lawyer friend not gotten interested in the 'arbitrary and anti-Israel' rule

Jessica Steinberg covers the Sabra scene from south to north and back to the center.

Menachem Zivotofsky, left, and his father Ari posing in front of the Supreme Court with their attorney Alyza Lewin and Lewin’s father Nathan, November 3, 2014 (Photo credit: Rikki Gordon Lewin)
Menachem Zivotofsky, left, and his father Ari posing in front of the Supreme Court with their attorney Alyza Lewin and Lewin’s father Nathan, November 3, 2014 (Photo credit: Rikki Gordon Lewin)

More than a few United States citizens born in Jerusalem over the last 12 years have the city of Jerusalem, rather than the country of Israel, listed as their place of birth on their American passports.

It’s a situation born of a thorny political issue — the US refusal to recognize Jerusalem as a part of Israel, Palestine, or any other nation. But the doggedness of a pair of Washington, DC, lawyers, coupled with one family in Israel, has brought the passport matter all the way to the Supreme Court.

It began with Ari Zivotofsky, a Bar-Ilan University neuroscientist, who moved to Israel from Silver Spring, Maryland, with his wife and two sons in 2001. Their third child, a boy named Menachem, was born in Jerusalem before they later moved to Beit Shemesh.

When Menachem was several months old, the Zivotofskys took him to the US Embassy in Tel Aviv in order to register him as a US citizen. His passport, issued then, listed Jerusalem rather than Israel as his place of birth. Passports of American citizens born abroad generally list country alone, not city of birth.

“Even before Menachem was born in Jerusalem, it always bothered me,” said Zivotofsky. “This [situation] seemed very arbitrary and anti-Israel.”

Any passport issued since 2002 to a US citizen born in Jerusalem lists the city rather than Israel, the country, as the place of birth (photo credit: Jessica Steinberg/Times of Israel)
Any passport issued since 2002 to a US citizen born in Jerusalem lists the city rather than Israel, the country, as the place of birth (photo credit: Jessica Steinberg/Times of Israel)

He was referring to a law passed in Congress in 2002 ordering the State Department to offer citizens the option to record Israel as the place of birth for American children, rather than Jerusalem. President George W. Bush signed the law but said he wouldn’t follow it because he felt it interfered with his involvement in the issue of the status of Jerusalem. President Obama took the same route.

It’s a longstanding US policy that the president, and not Congress, has the sole authority to offer American recognition of who controls Jerusalem, a city claimed by both Israelis and Palestinians. Accordingly, the US State Department, which handles the issuance of passports for American citizens born in Israel, has sought to remain neutral and simply lists Jerusalem rather than Israel as the place of birth for children registering as US citizens in the capital city.

That might have been the end of the story for the Zivotofskys.

But Alyza Lewin, a childhood friend of Naomi Siegman Zivotofsky, Menachem Zivotofsky’s mother, was also interested in the matter.

Lewin had recently partnered with her attorney father, Nathan Lewin, a well-known advocate for Jewish causes and a lawyer who has represented everyone from actress Jodie Foster — when she testified against her stalker, John Hinckley Jr., who tried to assassinate president Ronald Reagan — to the Satmar Hasidim in the fight for their Catskills public school district.

The elder Lewin also won a well-publicized $156 million judgment against two US-based Muslim charities on the grounds that they had helped underwrite Hamas terrorism. In total, Lewin has argued 28 cases in the Supreme Court.

When Congress passed the 2002 law, it was just as the Lewins had opened their joint law practice. An acquaintance of Nathan Lewin, who was a congressional representative involved in the legislation, was frustrated by the president’s stance on the matter, said Alyza Lewin.

“He wanted to know about legal action and my father said, ‘Well, maybe when it comes to passports… if you’re going to challenge it in court, this is the way we do it,’” said Lewin.

The law passed about listing Jerusalem rather than Israel as the place of birth for US passports was part of a much larger piece of legislation, Lewin explained, regarding a longstanding argument about situating the US embassy in a contested city like Jerusalem.

US President George W. Bush and First Lady Laura Bush at the Israel Museum in Jerusalem in 2008, for a welcoming ceremony of the US embassy. (photo credit: Yossi Zamir/Flash 90)
US president George W. Bush and first lady Laura Bush at the Israel Museum in Jerusalem in 2008, for a welcoming ceremony of the US embassy. President Bush was following standard procedure when he said he couldn’t follow the new passport law (photo credit: Yossi Zamir/Flash 90)

The law passed by Congress was narrowly aimed, said Zivotofsky, at pushing the State Department toward following the passport specification.

But “Congress has bigger intentions,” he said. “One justice said, ‘Who are you kidding? It’s part of broader legislation and that’s what will be talked about afterwards.'”

The passport question presented a case of individuals being denied their rights, said Lewin. That was easier to argue than the broader issue of the US stance toward Jerusalem.

The first thing the Lewins needed was a US citizen recently born in Jerusalem. They first asked a cousin in Jerusalem who had recently had a baby. The cousin demurred, concerned about the possible publicity.

Then they thought of Naomi Zivotofsky, Alyza Lewin’s childhood friend.

“My father went back to the old photo albums and found pictures from early birthday parties, dance classes together. We were together through ninth grade, and then again in college,” said Ms. Lewin. “So I called her and asked her.”

The Zivotofskys thought that it was something “worth fighting for,” said Ari Zivotofsky. “It didn’t occur to us that it would take 12 years and up and down in the court system, but yes, it was worth fighting for.”

They first brought the case before a district court judge in Washington, DC, but it became clear, explained Lewin, that only the Supreme Court had the authority to make a decision on the issue.

“It was a very narrowly focused petition on whether the court has the jurisdiction to decide this,” said Lewin. “It was unusual when the Supreme Court agreed to hear the petition, and when they did, they said it was granted on the political question [of Israel’s status] — but wanted me to include in my brief and address whether or not Congress had exceeded its authority [with the law]. They created this extremely unusual situation.”

The underlying issue related to the separation of powers — determining whether Congress has the authority to pass laws relating to foreign affairs that would affect the president and his powers.

The Lewins ended up arguing that the Supreme Court did not have to answer the question of separation of powers, that is, whether Congress has the authority to pass a law relating to foreign affairs, but had to decide whether what is listed on a passport should be considered formal US recognition of sovereignty.

“The general rule, when an American citizen is born abroad, is that the US passport lists the country as the place of birth,” said Lewin. “So if a baby is born in Rome, the passport lists Italy. If he’s born in Paris, the passport lists France.”

In fact, American citizens born in Tel Aviv or Haifa have Israel — and not the cities in which they were born — listed on their passports.

And one who was born in the country before 1948, when Israel was declared a state, can have Palestine listed as the country of birth.

Lewin argued that the 2002 law created an opportunity for those opposed to Israeli sovereignty — they could leave it off their passport — that wasn’t available to those who supported Israeli sovereignty, since they couldn’t have it listed. Hence the lawsuit.

“What you put on your passport gives an individual the ability to self-describe themselves for identification purposes,” said Lewin. “Within certain limits, it lets people describe where they were born, but that does not automatically grant [from the US] formal sovereignty to a country.”

And, in fact, Menachem Zivotofsky, the now-12-year-old boy who has been involved in this case since birth, feels quite strongly about his birthplace, said his parents and lawyer.

Ari Zivotofsky (right), stands with his nine-year-old son, Menachem, outside the Supreme Court in Washington, DC,  November 7, 2011. (photo credit: AP/Evan Vucci, File)
Ari Zivotofsky (right), stands with his nine-year-old son, Menachem, outside the Supreme Court in Washington, DC, November 7, 2011. (photo credit: AP/Evan Vucci, File)

“I think in some ways, it’s more about the actual child, Menachem Binyamin Zivotofsky,” said Lewin, who has four children of her own. She remembered wondering how Menachem would feel [about the case] when he wasn’t even a year old when they got started.

It turned out that the youngest Zivotofsky was proud to be the guinea pig for what may become a landmark case.

When the case was first argued in the Supreme Court, he was already nine years old, and “very proud of the fact that he’s the sabra of the family,” said Lewin. “It’s something he, as the youngest, has over his older siblings.”

He feels very strongly about being Israeli, and, in fact, wasn’t keen on leaving the country to travel to the US for the argument in court, said Lewin.

“I thought, ‘How about that?’” said Lewin. “He really ended up feeling very strongly about it, about being born in Israel.”

In fact, the two times Menachem Zivotofsky has been in the US were for Lewin’s arguments in the Supreme Court, said his father.

“He was reluctant to come to the US, because he had never left Israel before,” said Lewin.

For the family, the prolonged case is always “below the surface,” said Zivotofsky, who spends his free time outside the laboratory working on Halachic Adventures, a project dedicated to preserving ancient traditions such as researching biblical animals and discovering the source of techelet, the unique blue mentioned in the Bible for dyeing prayer shawl fringes.

The family pays attention to the case each time another round of arguments is approaching, and reads the rough drafts of the Lewins’ briefs each time, he said.

Ari Zivotofsky and one of his sons try out a locust, an ancient kosher delicacy that he has researched as part of Halachic Adventures, a side hobby Courtesy Halachic Adventures)
Ari Zivotofsky and one of his sons try out a locust, an ancient kosher delicacy that he has researched as part of Halachic Adventures, a side hobby (Courtesy Halachic Adventures)

“We don’t have too many comments on it. We don’t sit around talking about it all the time,” he said.

That said, having their case brought to the highest court in the US has been “exciting,” said Zivotofsky.

“It’s a very majestic place, you get swept away with it,” he said. “The court’s cases are very limited in number — less than 1% of those submitted get tried — and you realize that, and when you start reading the SCOTUS [Supreme Court of the United States] blog, you really get swept into the Supreme Court subculture.”

As for Lewin, what has kept her going is the 50,000 other US citizens with Jerusalem listed as their place of birth, as well as the overriding imperative she feels in response to the fact that most people had no idea that the US doesn’t officially recognize Israel’s sovereignty in Jerusalem.

“You start to see the editorials asking why, why are we still not recognizing Israel’s sovereignty?” asked Lewin.

Zivotofsky said that following the final hearing at the beginning of November, his family now senses the end of its Supreme Court journey.

“Now we feel like, wow, we have taken this all the way and it’s become a significant case and it will be significant in terms of its ramifications,” he said. “We’re cautiously optimistic, and if they rule in our favor, Alyza Lewin looks forward to sending out an email and telling people to go to the embassy and get their passports changed.”

Lewin said she is also cautiously optimistic that the court will find support for her arguments.

It’s an “absurd situation,” said Lewin. “It’s a misguided, faulty policy that should be changed and my deep, sincere hope is that this case will change that.”

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