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Supreme Court Rules Against Right to List “Israel” as Birthplace

June 9, 2015

The U.S. Supreme Court has issued its decision on Zivotofsky v. Kerry, striking down a law passed by Congress in 2002 under which US citizens born in Jerusalem would have the right to request that the State Department list “Israel” as their birthplace. The court ruled 6-3 that Congress overstepped its bounds when it passed the law, because the law would have interfered with the president’s power to recognize sovereignty of foreign countries. The longstanding US policy has been not to recognize any nation’s sovereignty over Jerusalem until Israelis and Palestinians resolve its status through negotiations.

The case of Menachem B. Zivotofsky, born in Jerusalem to U.S. citizens in 2002, was introduced as a test case for the law. The 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.

In September 2014, True Torah Jews submitted an amicus curiae brief on the side of the Secretary of State. 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.

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."

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.”

To read more about our amicus brief, click here.

To view our amicus brief click here.

"This is a great day for American Jews and for all Americans," said Rabbi Joel Klein, a spokesman for True Torah Jews. "The Supreme Court has prevented special interest groups from using their influence in to undermine the President’s foreign policy.

"We are certain that the Court’s decision was informed by the facts presented in our amicus curiae brief: that there exist large communities of Jews who don’t want Jerusalem to be part of the State of Israel, and that this viewpoint has a long history in the religious Jewish community in Jerusalem itself.

"Furthermore, our brief made the important point that it can only be damaging to the image of American Jews when they are seen as attempting to force America’s hand in a crucial international conflict. Jews are commanded in the Bible to seek the welfare of their country of residence."

It is important to note that for religious Jews, the holiness of Jerusalem is a spiritual concept and has nothing whatsoever to do with who rules it. Back in September, our brief pointed this out in reaction to another amicus brief submitted by the ADL et al., which contained the following misleading statement by the Union of Orthodox Jewish Congregations: '“There are few issues of higher symbolic value to the Orthodox Jewish community than the centrality of Jerusalem, toward which the community’s many members turn thrice daily to face in prayer.” Jews have been facing Jerusalem for 2000 years, while it was under the control of various non-Jewish empires. And certainly now, the issue of what is printed on a U.S. passport is irrelevant to Jewish law or thought.

As Rabbi Yosef Chaim Sonnenfeld, chief rabbi of Jerusalem, said in the 1920's, "If King Hussein (then ruler of the Hejaz, ancestor of the present Jordanian monarch) would rule over Palestine, the holiness of the Holy Land would not be diminished even an iota."