U.S. Appeals Court Hears 'Jerusalem Is Israel' Passport Case

Justices appear unlikely to list Israel as Jerusalem-born Menachem Zivotofsky's place of birth.

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A U.S. appeals court panel heard arguments on whether Americans born in Jerusalem can list Israel as their place of birth on passports and birth certificates.

Attorney Nathan Lewin, representing the case of a couple that had moved to Israel in 2000 from the United States and had a child born in a Jerusalem hospital, argued before the U.S. Court of Appeals for the District of Columbia on Tuesday that listing one’s place of birth is simply a matter of self-identification -- the same as listing height, or eye or hair color -- and should carry no further weight.

Those born in Jerusalem now have the city listed rather than the country like other U.S. passports.

U.S. Department of Justice attorney Dana Kaersvang told the three-judge panel, however, that all information on a passport must be consistent with U.S. policy, and that because the State Department has refused since 1967 to recognize Jerusalem as being in Israel, one born in the city cannot list Israel as the place of birth.

Lewin called the State Department’s ruling “clearly discriminating” in that it allows one born in Tel Aviv to list Israel as the place of birth. Arabs living in Israel can request to have West Bank or Gaza listed on their passports.

He also said, “You can say Palestine, a country that doesn’t even exist, but God forbid, don’t put Israel if you were born in Jerusalem.”

Kaersvang explained that the government allows anyone to list a city or town as a place of birth. However, she said, it is up to the U.S. government to decide what is and what is not a sovereign state.

Lewin told the judges that a ruling to allow Israel to be listed on a passport by one born in Jerusalem “could not possibly affect foreign policy.” 

“It does not say Jerusalem is in Israel," he said. "It does not say Jerusalem comma Israel.”

But Judge David Tatel said such a listing “can have recognition consequences.”

A decision on Tuesday's hearing is not expected for several months.

The U.S. Supreme Court returned the case to the appeals court one year ago, saying the appeals court must rule on the constitutionality of a law enacted by Congress in 2002 that said the State Department “shall” list Israel on a passport if it is requested.

The case began eight years ago when Ari and Naomi Siegman Zivotofsky went to court to be able to list Israel on their baby son Menachem's passport. The couple had moved from Silver Spring, Md., to Israel in 2000.

Ari Zivotofsky, center, walking with his son, Menachem, outside the Supreme Court in Washington, in 2011.Credit: AP

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