Friday, June 12, 2015


Like many of you, I’m sure, I read about the Supreme Court’s recent decision regarding the status of Jerusalem—or rather, about the status of the Holy City as far as United States passports are concerned—with a sense of uncertainty about how exactly to react, and not least of all because this is a personal issue for me: my oldest son was born in Jerusalem and, indeed, although my passport says that I was born in the United States (a country) and Joan’s says she was born in Canada (also a country), Max’s says he was born in Jerusalem (not a country).

The hospital in which Max was born was indeed in Jerusalem: the Misgav Ladach Maternity Hospital was located on Chovshei Katamon Street in West Jerusalem in 1984, just half a block from the apartment we were living in at the time on Haportzim Street. (The hospital was originally located in the Old City, but moved to where it was in 1984 after the War of Independence ended with the Old City of Jerusalem remaining in Jordanian hands. It’s since moved to King Hezekiah Street, also in West Jerusalem.) And that specific building in which Max was born, later a synagogue and now a community center, is on property that has only been part of three jurisdictions since the sixteenth century. From 1516 until 1920, it was under the control of the Ottoman Turks. From 1920 to 1948, it was under the control of the British. And from 1948 until the present, it has been part of the State of Israel. All that being the case, you could reasonably ask why this is an issue at all.  It’s a good question!

The Supreme Court did not frame its judgment in terms of Israel’s sovereignty or lack of sovereignty over its own capital city, but rather in terms of the President’s right to set foreign policy and not be hampered in that effort by congressional legislation. The case itself was simple enough. In 2002, Congress passed a bill requiring the Secretary of State to list “Israel” as the country of birth of citizens born in Jerusalem if that request is formally made by them or, if they are children, by their parents. (Even that rankled a bit at the time—do Americans born in Paris have to ask formally for France to be given as their country of birth on their passports?) Still, that sounded as though it would settle the matter once and for all, but although President George W. Bush did sign the bill, he also issued what is called a “signing statement” in which he protested that that law interfered “with the President’s constitutional authority to conduct the Nation’s foreign affairs.” And then, as a result of the President’s statement, the Department of State proceeded to ignore the law and specifically not to accede to the requests of American citizens born in Jerusalem or their parents to have their passports list “Israel” as the country of their birth.

This did not sit well with the parents of Menachem Zivotofsky, American citizens whose son was born in 2002 after Congress passed its bill and who, perhaps naively, expected the government to obey its own law. Noting that Menachem is unambiguously possessed of American citizenship, his parents took issue with the government’s refusal to honor their request that their son’s passport reflect that actual circumstances of his birth—that it took place in the State of Israel—and not some fantasy-perception of how things are in the world that imagines that Jerusalem is not actually part of any country at all—surely not part of the Ottoman Empire or the British Mandate of Palestine, neither of which exists, but also not part of the State of Israel, which surely does.

The arguments on both sides were persuasive. On the one hand, the lawyers defending the Zivotofskys’ right to have the actual country of their son’s birth listed on his passport convincingly argued that no normal person would imagine that a thirteen-year-old’s passport possesses the magic power by its very existence to set American foreign policy or that the status of Jerusalem could possibly depend on minor administrative details like the specific way the country of a child’s birth is indicated on his or her passport. Furthermore, they argued, it is incontestable that Congress has the power to regulate passports, which right it seems odd to imagine does not include determining what data may or may not be recorded on them. On the other, the government’s attorneys argued forcefully that it would undermine the President’s power to set foreign policy were the government he heads to issue documents at odds with American foreign policy, thus further muddying waters that are already more than muddy enough, and that the fact that the United States does not recognize Israeli sovereignty over Jerusalem should be the determining factor and not a boy’s personal wishes or his parents’. Nor, apparently, the will of Congress.

Behind all the polite argumentation rest serious issues. Justice Sotomayor came as close as anyone to speaking honestly when she finally said that the real problem with the law Congress passed is that it requires the Secretary of State to say something untrue, and I quote, “that someone born in Jerusalem [was] actually born in the State of Israel.” And suddenly, after all that endless speechifying, there it was right out in the open, the issue behind the issue and the real reason this detail of how someone’s place of birth is or is not indicated on his or her passport matters in this specific context: that for Justice Sotomayor Jerusalem is not part of Israel and it does not behoove our government therefore to say that it is. What country she thinks it is part of, Justice Sotomayor didn’t say. It can’t be Palestine, because Palestine does not exist as a sovereign country. It could be Jordan, I suppose…but could that really be what the justice thinks, that the Six Day War unlawfully wrested control of Jerusalem from the Jordanians? But in that case, how could it not be relevant that Jordan never actually controlled West Jerusalem?

Other justices were just as blunt. Justice Scalia suggested that the government’s position was rooted in its wish not to irritate certain foreign nations, only rhetorically to pursue his own line of reasoning by asking why, if it undeniably falls within Congress’s power to regulate passports, it should matter whom Congress does or doesn’t antagonize by exercising that power as it sees fit. Most reasonably of all, Justice Kennedy asked why the State Department couldn’t simply comply with the law, list “Israel” as the country of birth of Menachem Zivotofsky and the other 50,000 Americans like him (including Max Pascal Cohen), and print some sort of disclaimer in his and their passports indicating that that listing was not meant to reflect the position of the United States government with respect to Jerusalem’s ultimate status.

Not everybody is born somewhere. There is a certain legal ambiguity that attends people born on ships at sea and on airplanes in the air. Eventually, I suppose, the law will have to deal with the citizenship of people born on space ships or on other planets. But it is already possible here on Earth to be born on dry land, but in no country at all.  People born in the various zones of occupation established by the Allies after the collapse of Nazi Germany, but before the establishment of its successor states in West and East Germany, were not born in any country, for example. But that is not the case here. Jerusalem is the capital of Israel in precisely the same way that Ouagadougou is the capital of Burkina Faso or that Bishkek is the capital of Kyrgyzstan: because its citizens chose it as their capital and regard it as such. That Israelis should be denied that basic right to establish their capital wherever they wish—a right denied as far as I can see to no other nation at all—needs to be defined not as a mere administrative detail or, more bizarrely, as the regrettable but unavoidable collateral damage brought on by some fancy legalistic wrangling between Congress and the White House, but rather as part of the larger effort afoot in the world to deny the Jewish people the basic right to self-definition accorded all other peoples. If the nation of Palestine ever actually comes into existence, then its citizens will have the same right to choose their capital and determine their own destiny. Why shouldn’t they? But denying Israel the basic right to construct its own society in a way that suits its national character, its sense of history and destiny, and the wishes of its people to live as they please is hardly a constructive step forward towards peace. Indeed, decisions like this week’s only add fuel to the fire fanned by the forces of anti-Zionism and anti-Semitism and make Jewish people like myself feel even less sure that the world truly endorses our right to chart our own course forward through history at all.

I wish I could take all of my readers along to Jerusalem when Joan and I go next month. At least some would be very surprised by what they’d find, I think, and particularly by the way that Jerusalem—or at least West Jerusalem and the Jewish Quarter of the Old City—are no less fully Israeli in their nature, tenor, and ethos than any other town or city in Israel.  To walk around the city, for example, and to see the full panoply of Jerusalem residents—sabras and olim, tourists and citizens,  religious fundamentalists and spiritual liberals, men and women, young and old, soldiers and students—to see all that and to experience it personally, and then to hear a Supreme Court justice announce blithely that Jerusalem isn’t really part of Israel…that opinion will strike any rational observer not only as being at odds with the facts in evidence but also silly and utterly wrong. For better or worse, Jerusalem is Israel no less meaningfully than Tel Aviv is or than Eilat is. Like any city, it has its issues to contend with.  And the Palestinians of East Jerusalem are certainly entitled to live as they see fit and to construct a cultural milieu as suffused with Arab values as West Jerusalem is with Jewish ones. But to contend that Max—or Menachem or any of the other 50,000 U.S. citizens born in Jerusalem—was somehow not born in Israel is not really a defensible argument except perhaps in the rarified realm of legal theory and certainly will have no cogency at all to anyone on the ground walking the city’s streets and seeing what I see every day I am present in that place.

Joan and I only own one home…and it is in Jerusalem, Israel. The Supreme Court’s decision to strike down the law that would have required the government to allow those two words—Jerusalem and Israel—to appear contiguously on 50,000 American passports seems to me somewhere between pernicious and foolish, and as indefensible as it is fully divorced from the reality I personally know.

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