Going Into The Supreme Court, United For Jerusalem

Posted on November 1, 2011 In No categories

By Nathan J. Diament

Special To The Jewish Week

On Monday, the Justices of the U.S. Supreme Court will take a rare excursion into the realm of foreign policy and the fraught issues surrounding the Israeli-Arab conflict. The case of Menachem B. Zivotofsky v. Hillary Clinton, Secretary of State, concerns a decades-long dispute over American policy toward Jerusalem, with Congress passing laws designed to recognize Israeli sovereignty over the holy city and the executive branch refusing to implement those laws out of diplomatic concerns.In the case, the Zivotofskys are seeking to have the passport of their son, who is American but born in Jerusalem, indicate that his birthplace was “Israel” — not just “Jerusalem.” The basis for their claim is a law, duly passed by Congress and signed by President Bush in 2002, which states:“For purposes of the registration of birth…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.”The Zivotofskys brought suit because the State Department has refused to abide by this law.

The constitutional questions that will animate the oral argument will involve the president’s “power of recognition” of foreign governments, Congress’ authority to legislate in the foreign policy arena and the Court’s willingness to arbitrate such “political questions.”

The Zivotofskys, represented by the eminent attorney Nat Lewin, contend that the president’s power in foreign affairs is not absolute and that, certainly, Congress has the ability to legislate the specific requirements of passport documents. The solicitor general, on behalf of the president and Secretary Clinton, contends the executive’s power is unfettered and absolute in this arena.

(It is noteworthy, but not surprising, that Hillary Clinton’s view now is diametrically opposed to the one she held when serving as senator from New York. At that time she explicitly endorsed the recognition of Jerusalem as Israel’s “eternal and indivisible” capital and did not object when the 2002 statute was passed by the Senate unanimously.)

While these foundational American questions will determine the outcome, what’s really brought this case before the high court is the Jewish devotion to our foundational city, demonstrated by our remarkable unity toward her.

When the Supreme Court hears cases that implicate the values or interests of the Jewish community, leading communal organizations will often participate in the case by filing “friend of the court” briefs. Typically, and not surprisingly, you will often find American Jewish organizations filing briefs on opposite sides of a case. In a school voucher case, for example the Anti-Defamation League and the Reform movement will file on one side, while the Orthodox Union and Agudath Israel will support the other.

But in the Zivotofsky case, the entire alphabet soup of American Jewish organizations from the ADL to the OU to the Zionist Organization of America, ZOA (with the singular exception of Americans for Peace Now) has filed briefs in support of the family’s claim and the principle of Jerusalem as the eternal capital of Israel. This is consistent with the findings of the American Jewish Committee’s recent poll showing that the majority of American Jews oppose the re-division of Jerusalem, even in the context of a final peace agreement.

Jewish unity for Jerusalem is striking not only because it runs counter to our track record in other Supreme Court cases. Condoleezza Rice has just published the memoir of her tenure as President Bush’s secretary of state. Among her revelations is a confirmation of how aggressively then-Prime Minister Ehud Olmert was pressing for a peace deal with Palestinian President Abbas, and Olmert’s willingness to be the first leader in Jewish history to voluntarily cede control over our holiest sites.

Even though the Orthodox Union and other allies were actively lobbying President Bush against supporting such a move, this terrible fate was only averted by Abbas’ rejection of the offer and Olmert’s subsequent departure from office under charges of corruption.

Last month, New York Times columnist Nicholas Kristof opined on whether “Israel is her own worst enemy.” In the course of doing so, Kristof wrote: “I realize that many insist that Jerusalem must all belong to Israel in any peace deal anyway. … But, if that’s your position, then you can kiss any peace deal goodbye … insistence on a completely Israeli Jerusalem simply means no peace agreement ever.”

After withdrawals from Sinai and Gaza, no one can reasonably doubt the Jewish commitment to peace. But a peace that sunders Jewish history is too much to ask, and thus does not have the support of a majority of Jews in Israel and around the world.

Unified Jewish support for Jerusalem is rooted in the ancient and powerful place of Jerusalem in our psyche. Commenting on the verse in Psalm 122 that reads, “Jerusalem is built like a closely compacted — chubrah — city,” the rabbis say Jerusalem is a city that “makes all Jews chaverim — friends.”

However the Justices of the Supreme Court rule in the Zivotofsky case, Jewish unity for Jerusalem must remain steadfast so that Jerusalem may remain united eternally.