‘Born in Jerusalem’ case divides Supreme Court

WASHINGTON — Middle Eastern politics infused the Supreme Court’s arguments Monday over a disputed law that would allow Americans born in Jerusalem to list their birthplace as Israel on their U.S. passports.

The justices appeared divided over whether the law should be struck down as unconstitutional, as the Obama administration wants, or put into effect as a result of a lawsuit filed by the parents of Jerusalem-born Menachem Zivotofsky.

Twelve-year-old Menachem, a baby when the case began in 2003, and his parents sat through the hour-long argument that saw justices wrestle with questions of the president’s primacy in matters of foreign affairs and the effect the court’s eventual decision could have on simmering tensions between Israelis and Palestinians.

Justice Elena Kagan called Jerusalem a “tinderbox” and said the outcome of the case would be watched closely. “History suggests that everything is a big deal with respect to the status of Jerusalem,” Kagan said.

On the other side, Justice Antonin Scalia said of the law, “If it is within Congress’ power, what difference does it make whether it antagonizes foreign countries?”

The status of Jerusalem has for decades been among the most vexing issues in Israeli-Palestinian relations. Israel has controlled all of Jerusalem since the Six-Day War in 1967 and has proclaimed a united Jerusalem as its eternal capital. The Palestinians have declared that east Jerusalem will be the capital of their independent state.

U.S. policy has long refrained from recognizing any nation’s sovereignty over Jerusalem and has held that the city’s status should be resolved through negotiations between the parties. Congress has for years tried to push administrations of both parties to recognize Jerusalem as Israel’s capital. The U.S. has never enforced the passport law, on the books since 2002.

Like Kagan, the other liberal justices appeared willing to accept the 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.