True Torah Jews File Amicus Curiae Brief on Zivotofsky Case

Sep. 30, 2014

True Torah Jews has submitted an amicus curiae brief to the U.S. Supreme Court expressing its position on Zivotofsky v. Kerry - the case of a U.S. citizen born in Jerusalem who requests that his passport display "Israel" as his birthplace instead of "Jerusalem."

The brief, drafted by attorney Philip Fertik of Chicago and funded by Satmar and other non-Zionist Jews, argues that the court should dismiss the case on procedural grounds: the petitioner has suffered no cognizable “injury in fact" from the fact that the passport does not say "Israel" and therefore has no standing to sue under the Supreme Court's interpretation of Article III of the Constitution.

The brief cites a 2013 decision of the court in which they wrote that Article III of the Constitution “confines the judicial power of federal courts to deciding actual ‘Cases’ or ‘Controversies.’ One essential aspect of
this requirement is that any person invoking the power of a federal court must demonstrate standing.to do so... The plaintiff must have suffered an ‘injury in fact’—an invasion of a legally protected interest which is . . . concrete and particularized."

In a lengthy "interest of amicus curiae" section, the brief begins by stating, "TTJ's interest as amicus curiae is rooted in a deep commitment to the teachings of traditional Judaism—and it sees Zionism as running contrary to those teachings by pursuing a political (and military) solution to the problem of Jewish exile."

It goes on to explain that True Torah Jews are concerned that 1) Zionists should not be seen as speaking for traditionally Orthodox Jews, 2) this is especially true in the case of expansionist Zionists and those supporting the settler movement, for whom recognition of Israeli sovereignty over Jerusalem is an important step toward the goal of legitimizing all Israeli expansionism, and 3) U.S. foreign policy should be made in the interest of the United States; Jews should not seek to influence the foreign policy of the United States to conform to any outside agenda. This is in keeping with the command of the prophet Jeremiah, "Seek the welfare of the city to which I have exiled you."

"In TTJ's view, Jews are endangered by the widespread misconception that (nearly) all Jews support the State of Israel, whatever it may choose to do," reads the brief. "...These misconceptions do not come out of nowhere. The expansionist Zionists frequently declare, as does the Government of Israel, that the State of Israel is the state of the Jewish people... Similarly, the expansionists might wrap the State of Israel and the Jewish people, Jerusalem and Judaism, into one package, in a single sentence that would take paragraphs to unpack."

The TTJ brief refers to other amicus briefs submitted on the side of Zivotofsky that do exactly that. For example, the Zionist Organization of America writes, “All ZOA members appreciate the significance of Jerusalem to Israel and the Jewish people—it is Judaism's holiest city.”

In touching on the subject of Jewish lobbying for Israel, the TTJ brief suggests that AIPAC's frequent boasts of the influence it exerts on Congress, whether true or false, could be a cause of anti-Semitic feelings in America. (It quotes an interview with AIPAC's director of foreign policy issues in which he told the interviewer, “You see this napkin? In twenty-four hours, we could have the signatures of seventy senators on this napkin.")

The brief also makes mention of a November 1947 telegram from Rabbi Yosef Tzvi Dushinsky, chief rabbi of Jerusalem, to the UN, "voicing apprehension at the proposal to include Jerusalem in a Jewish State, and urging that Jerusalem become an international zone under the United Nations, with all its residents citizens of this free zone."

The brief acknowledges that all of the above may not be relevant to the case, but that "by fleshing out its interest in this unorthodox way, TTJ hopes only to cancel out to some degree the background noise generated in this proceeding by a chorus of petitioner's Zionist and Zionist-oriented amici—on matters everyone ostensibly agrees are unrelated to the strictly legal issues. In their harmoniously ordered statements of interest, they ignore the existence of discordant facts and convictions. The inevitable upshot, whatever their intentions, is the distortion of a complex reality."

Since the founding of the State of Israel in 1948, U.S. presidents have declined to state a position on the status of Jerusalem, leaving it as one of the thorniest issues to be resolved in possible future peace talks.

The petitioner Zivotofsky's claim is based on Section 214(d) of the Foreign Relations Authorization Act, passed by Congress in 2002, which requires the state department, upon request, to print "Israel" as the place of birth on the passports of American citizens born in Jerusalem.

But the State Department, which issues passports and reports to the president, has declined to comply with the law, saying it violated the separation of executive and legislative powers laid out in the U.S. Constitution.

When President George W. Bush signed the law, he said that if construed as mandatory rather than advisory, it would “impermissibly interfere” with the president’s authority to speak for the country in international affairs.

The Zivotofsky case has been in the court system for several years. The issue reached the U.S. Supreme Court in 2012 on the preliminary question of whether it was so political that it did not belong in the courts. The high court ruled 8-1 that the case could proceed.

In July 2013, a federal appeals court ruled in favor of the State Department. A unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled that the president - and not lawmakers - had sole authority to determine the U.S. position on who should control the historic holy city. Zivotofsky's counsel, Nathan Lewin, then appealed to the Supreme Court.

TTJ's brief was submitted yesterday, Monday, September 29, and is available to the public here:
http://www.scotusblog.com/case-files/cases/zivotofsky-v-kerry/

It is also available on our own website:
http://www.truetorahjews.com/images/amicusbrief.pdf

The case is set for oral argument on November 3.