February 10, 2004
Last October, the ZOA’s Center for Law and Justice (ZOA-CLJ) filed suit
in the federal district court in Washington, D.C. on behalf of an American
couple living in Jerusalem, alleging that Secretary of State Colin Powell and the
State Department violated federal law by refusing to recognize their infant
son’s birthplace as Israel on his passport and other U.S. documents.
Presently, American citizens born in Jerusalem have only “Jerusalem”
recorded as their birthplace on their passports and certain other documents.
Israel, their country of birth, is not listed because the United States does not
recognize Israeli sovereignty over any part of Jerusalem, east or west.
In 2002, Congress passed legislation permitting U.S. citizens born in
Jerusalem to have “Israel” listed as their country of birth on their passports,
registrations of birth, and other documents. This law requires the U.S. to make
the listing if an American citizen simply requests it. President Bush signed
the legislation into law on September 30, 2002. Although the language of the
law is clear, State Department officials have refused to comply with it, citing
U.S. policy concern that implementation will harm the ongoing negotiations
between the Palestinian Authority and Israel.
When Jocelyn and Dan Odenheimer, who are American citizens living in
Israel, applied for a passport and a registration of birth for their son Ephraim
at the U.S. Consulate in Jerusalem, they specifically requested that the
documents list Ephraim’s birthplace as “Jerusalem, Israel,” in accordance with the
law. Their request was refused; the documents listed only “Jerusalem” with no
reference to a country. When Mrs. Odenheimer brought the error to the attention
of a consular officer, he refused to give his name and told her, “Write
whatever you want. Tel Aviv is Jerusalem, Jerusalem is Tel Aviv. I think you should
write Jerusalem, U.S.A. That’s the truth.”
The ZOA-CLJ brought suit on behalf of the Odenheimers, alleging
discrimination by the State Department against Israeli Americans, in violation of this
newly passed U.S. law as well the Equal Protection Clause of the U.S.
Constitution, and seeking to compel the State Department to comply with the law. The
State Department moved to dismiss the Odenheimers’ case on three basic grounds.
First, it argued that the Odenheimers lack “standing” to bring suit, because
they have allegedly not suffered a real injury and do not have a tangible
interest at stake. Second, the State Department contended that the case raises a
“political question” which can only be determined by the Executive Branch of
our government, and which the court has no authority to decide. Finally, the
State Department argued that even if the court can decide the case, the State
Department’s actions were lawful, because the Executive Branch has exclusive
authority over foreign relations and had the authority to interpret the law as
advisory, rather than mandatory.
The ZOA-CLJ filed an opposition to the State Department’s motion to
dismiss the case. At the same time, we filed a motion for summary judgment, arguing
that there are no material factual issues in dispute that need to be decided
by the court, and that, based on the law, the Odenheimers should prevail. If
President Bush had believed that the legislation constituted a problem, he
could have vetoed it, but instead he signed the legislation into law.
For those of you who are interested in reading the ZOA-CLJ’s brief, you
can click here (171K PDF). You may also be interested to know that the ZOA is
the only Jewish organization to have taken formal legal action to implement this