WASHINGTON — The Supreme Court appeared divided Monday in a dispute over the wording of U.S. passports for Americans born in Jerusalem, a city that one justice described as a “tinder box.”
The justices were intensely engaged in arguments in a lawsuit filed by the parents of Menachem Zivotofsky, an American who was born in Jerusalem in 2002 and who wants his place of birth to be listed as Israel on his U.S. passport.
The case comes before the court at a time of high tension between Israelis and Palestinians over Jerusalem.
Congress has for years tried to push administrations of both parties to recognize Jerusalem as the capital of Israel. U.S. policy has long held that the city’s status should be resolved through negotiations between the parties.
Twelve-year-old Menachem and his parents sat through the hour-long argument that seemed to split the court along ideological lines. The liberal justices appeared willing to accept the Obama administration’s argument that changing the wording on passports would damage the American role as a broker of peace in the Middle East and undermine the president’s credibility.
The conservative justices were more skeptical of the argument put forth by Solicitor General Donald Verrilli Jr. They seemed open to the argument by Alyza Lewin, the family’s lawyer, that the passport language would not change U.S. policy toward Jerusalem.
Justice Antonin Scalia readily agreed with Lewin. “This is not recognition. It just has an effect on the State Department’s desire to make nice with the Palestinians,” Scalia said.
But Justice Elena Kagan took issue with Lewin’s contention, citing rising tensions over to the Jerusalem religious site that Jews call the Temple Mount and Muslims refer to the Noble Sanctuary. “Right now, Jerusalem is a tinder box because of the status of and access to a particular holy site,” Kagan said.
As he often does on a closely divided court, Justice Anthony Kennedy appeared to hold the controlling vote. Kennedy said at one point that the administration seemed to have the stronger argument. But he also suggested that a disclaimer on passports that American policy about Jerusalem is unchanged could take care of the problem.
Verrilli doubted such a disclaimer would be effective. He called the status of Jerusalem among the most vexing issues in the region.
Israel proclaims a united Jerusalem as its eternal capital. The Palestinians say their independent state will have east Jerusalem as its capital.
Two years ago, the justices rejected lower court decisions that called the matter a political issue that should be resolved by Congress and the president without the help of the courts.
The federal appeals court in Washington then struck down the law as an unconstitutional intrusion by Congress on the president’s authority over foreign affairs.
Congress and the White House have argued for decades over support for Israel’s position on Jerusalem.
In 1995, Congress essentially adopted the Israeli position, saying the U.S. should recognize a united Jerusalem as Israel’s capital. In 2002, lawmakers passed new provisions urging the president to take steps to move the embassy to Jerusalem from Tel Aviv and allowing Americans born in Jerusalem to have their place of birth listed as Israel.
President George W. Bush signed the 2002 provisions into law but noted that “U.S. policy regarding Jerusalem has not changed.” President Barack Obama has taken the same stance.
