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US Court Nixes Enforcement of "Jerusalem, Israel" Law

A US court has found that American consular offices need not register the birthplace of a Jerusalem-born American citizen as "Jerusalem, Israel," but merely as "Jerusalem." The reasoning is tricky.
First Publish: 9/9/2004, 4:27 PM / Last Update: 9/9/2004, 1:14 PM

The U.S. District Court in Washington, D.C. has found that United States consular offices in Israel need not register the birthplace of an American citizen born in Jerusalem as "Jerusalem, Israel," but merely as "Jerusalem." The reasoning is tricky.

Suits demanding that Jerusalem be listed as belonging to Israel were filed by Ari and Naomi Siegman Zivotofsky of Beit Shemesh on behalf of their infant son, and by Dan and Jocelyn Odenheimer of Efrat on behalf of their minor child. The suits, filed against the U.S. Department of State and Secretary of State Colin Powell, were rejected yesterday by U.S. District Judge Gladys Kessler. The plaintiffs say they will appeal.

Both plaintiffs challenged Powell's failure to implement Section 214(d) of the 2003 Foreign Relations Authorization Act, Pub. L. 107-228, which requires the Department of State to list an individual's place of birth as "Jerusalem, Israel" upon request. The law states,
"For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen's legal guardian, record the place of birth as Israel."

Judge Kessler ruled that the plaintiffs have no standing to demand that this law be implemented because they have "sustained no injury in fact." The judge wrote that the "mere existence of a statute does not negate the requirement that the party seeking review must himself have suffered an injury." Plaintiff A. Zivotofsky later commented to Arutz-7, "Though I'm not a lawyer, this does seem bizarre; basically, the judge has rendered the law meaningless."

Judge Kessler also rejected the suit based on the grounds that it is a "non-justiciable political issue" and that the U.S. "does not recognize any sovereign over the city." She explained that the status of Jerusalem is "a hotly contested issue, one that has consumed policymakers in the United States and the Middle East for the past fifty years... Pursuant to the policy [that Jerusalem's final status has not yet been determined], United States citizens born in Jerusalem are identified on their passports with only their city of birth; no country of birth is listed, because the United States does not at this time recognize any sovereign over the city."

Attorney Mordechai Haller of Jerusalem said that by definition, the issue is certainly justiciable:
"An issue is non-justiciable either when there are no legal standards or norms that can lead the court to decide on it, or when it is a matter of government policy within the exclusive jurisdiction of another branch of government. This case, however, in which the law itself specifically mandates a course of action, goes beyond mere policy. It therefore is by definition a justiciable issue."

The defendants (Powell and the State Department) made three other points in their defense, but Judge Kessler did not relate to these claims.

The U.S. "Jerusalem Embassy Act of 1995" states that official U.S. policy toward Jerusalem is that the city should remain a united city in which the rights of all ethnic and religious groups are protected; that it should be recognized as the capital of the State of Israel; and that the U.S. Embassy should be established there no later than May 31, 1999. The Act also stipulates that 50% of the money used to acquire and maintain official US buildings abroad may not be spent if the Embassy has not been opened in Jerusalem by May 31, 1999. Contrary to public perception, the law does not grant the President the right to delay the opening of the Embassy for six months at a time, but rather to waive the 50% spending restriction if the Embassy is not built. Presidents Clinton and Bush have invoked the waiver every six months since the Act was legislated, and the Embassy has not been built.