Tuesday, June 9, 2015

Supreme Court sides with President on Jerusalem

Yesterday, the US Supreme Court decided that the President has the constitutional power to determine the view of the US on the status of Jerusalem. The case before the court concerned section 214 of a 2002 appropriations bill signed into law by then-President George W. Bush, who issued a signing statement concerning the congressional mandate for the US embassy in Israel to record Israel as the country of birth for US citizens born in Jerusalem. President Bush rejected this provision as violating the "recognition power" of the presidency. President Obama followed suit. The law was challenged in court by the Zivotofsky family, whose son was born in Jerusalem. The family sued to force an issue that, as the Supreme Court found, exceeded the personal life-style concern of private citizens and their desire to have the country of birth of their child recorded in their US passport, as defense council had argued. Instead, it became a matter of the division of powers. The liberal judges, supported by Justices Anthony Kennedy and Clarence Thomas, found that it is the President's prerogative within the narrow confines of his "recognition power" to determine whether or not to recognize anyone's claim to sovereignty in Jerusalem. (To read the majority opinion of the court, written by Anthony Kennedy, see HERE.)

Jerusalem is the capital of Israel. It has been so officially since 1950, when the city was still divided and the East was under Jordanian rule. The US Government never acknowledged any unilateral changes in the status quo of the city and insists that the final status of Jerusalem needs to be resolved through negotiations between the parties concerned; today: between Israel and the Palestinians. Israel conquered East Jerusalem in June 1967 and de facto annexed it into a larger municipality of 126 square miles that, today, is separated from its West-Bank hinterland by means of a separation wall.

Soon after, the Israeli government led by Golda Meir began to build Jewish neighborhoods in East Jerusalem to make sure the city was to remain "complete and united," as the 1980 "Basic Law: Jerusalem, Capital of Israel" puts it. [More, by this author, on the Jerusalem Basic Law.] On the other hand, the Israeli government allowed special arrangements to prevail for the Arab residents of Jerusalem who are now about a third of the population of the city. Among these special arrangements were the extension of residency permits, but not automatic citizenship; the use of the Jordanian Dinar as currency and of the Jordanian (later: the Palestinian) curriculum in schools; as well as other measures, that provided the Palestinian residents of Jerusalem special status without necessarily extending services, such as housing and urban development, to their neighborhoods in measures equal to their need and number. Today, many feel that Jerusalem is united only by law but not in fact. Instead, it is a separate and unequal place to live for its constituent communities.  As the director of the Jerusalem Institute for Israel Studies put it at a recent Association for Israel Studies panel held in Montreal/CA, it will take a major national effort to rectify the situation of Jerusalem's Arab populations. 

American foreign policy with regard to Jerusalem has been divided between the majority of Congress and the Presidency. Congress has repeatedly written Jerusalem's status as Israel's capital into US law, most famously in form of the 1995 Jerusalem Embassy Act, which found that Jerusalem is Israel's capital, that Jerusalem is the spiritual center of Judaism, that Israel has maintained freedom of access for all religious communities to their holy places and that the US is deviating from the norm of having its embassy at a place that the host country does not consider its capital. (The US embassy has since remained in Tel Aviv. In fact, no country maintains its embassy in Jerusalem today.) Yet it may go too far to say, as Moshe Amirav writes in his analysis of Israeli policy goals in regard to Jerusalem (see Jerusalem Syndrome, Sussex, 2009), that Israel failed to secure international recognition for its unilateral annexation of Jerusalem. US Congress remains in favor of Israeli sovereignty, and the Supreme Court merely refused to decide on a political issue that is for the President and Congress to work out. In the meantime, it sided with the narrow power of the Presidency to refuse to record "Israel" on the passport of a US person born in Jerusalem.

Tuesday, December 2, 2014

A statement by Deborah Lipstadt and David Ellenson, courtesy of Israel Policy Forum

The following statement first appeared in the Wall Street Journal. It was then distributed by email by the Israel Policy Forum. The version below is taken from that email.

Last week when Palestinians murdered innocent worshippers in a west Jerusalem synagogue at morning services, one of the first Israeli policeman on the scene was Zidan Saif, a Druze.  He played a key role in stopping the assault and was murdered as he did so. The entire nation took note of his sacrifice. Israelis, among them many ultra-Orthodox and President Rivlin, turned out in droves for his funeral as a sign of respect and deep gratitude. One week later the Israeli Knesset is poised to consider a bill which would demean this man’s standing as an Israeli citizen.
It is with sadness that we write these words.   Neither of us has ever spoken out in public forums in criticism of Israel.  We have held to the view, which even some Israelis consider antiquated, that as long as we have not chosen to live there permanently, our right to comment on internal Israeli decisions ought to be limited.  We are both staunch supporters -- indeed lovers -- of the State of Israel.  We rejoice in the fact that we have lived there for extended periods. We  consider the Jewish state to be central to our own self-understanding and identity as Jews.

It is precisely because of that love that, we find ourselves so alarmed at the recent support of the Israeli Cabinet for a proposed basic law entitled “Israel, the Nation-State of the Jewish People.” Prime Minister Netanyahu is intent on introducing this proposed bill to the Knesset.  It would formally identify Israel as the nation-state of the Jewish people, enshrine Jewish law as a source of inspiration for legislation, and delist Arabic as an official language.  The law pointedly fails to affirm the democratic character of Israel.

The proposed legislation betrays the most fundamental principles enshrined in the Israeli Declaration of Independence, which promises “complete equality of social and political rights to all its inhabitants irrespective of religion, race, or sex and will guarantee freedom of religion, conscience, language, education, and culture." 

Such a bill will certainly concern, if not inflame, Israel’s Arab citizens.  However, such a law also concerns countless Jews in Israel and throughout the world who are committed to Israel as a democratic state devoted to human rights and equality for all.

To be sure, we firmly believe that Israel is a Jewish state just as its neighbors are Muslim states. We are also proud that Israel, in contrast to most of these other states, is a democracy that proclaims that religious minorities who live within its borders can be full-fledged citizens who suffer no impediments because of their faith or identity.  Israel has found this a difficult balance to maintain but it is what put Sidan Zaif at that Jerusalem synagogue last week.

 The proposed bill provides no additional security for the State of Israel.  It does not help it stand up to Hamas or any of the other nations or groups devoted to Israel’s destruction.  On the contrary, we believe passage of this law places Israel in ever-greater danger.  It fosters the impression that Israel has moved away from its firm commitment to democracy and sends a message that the full-fledged rights of the twenty percent of its citizens who are not Jews are diminished in the eyes of the law.

We are fearful that the proposed bill would serve as fodder for Israel’s critics at a time when that criticism is growing in volume beyond the borders of Israel. Some of Israel’s critics lie in wait for the slightest pretext to condemn her.  This bill gives them that opportunity.

But it is not just Israel’s wellbeing that is threatened by this bill. For many decades, Jews such as us   feared – and often rightly so – that criticism on our part could provide ammunition to those who opposed Israel’s existence.  Now, to a certain degree, the tables are reversed.  Israel’s actions directly impact Jews throughout the world. There is a rising tide of anti-Semitism in the world, particularly in Europe.  Increasing numbers of European Jews feel that they live under threat and that even those who were once their allies – liberal, pro-democracy groups – have abandoned them.  This bill delivers to those groups added cover to justify their opposition to Israel which often spills over into disturbing opposition to Jews per se.

Israel, which proudly claims that its mandate extends to the protection of Jews living outside its borders, should consider the impact of such a bill on  global Jewry, especially Jews in Europe.

Consider the message this bill sends to Zidan Saif’s four-month old daughter --   that your father died for this state and its citizens but you are no longer a full-fledged member of it? In speaking out against such a bill, we speak for the future good of the Israel we cherish.

Our hearts, filled as they are with love for Israel, are truly heavy. But reverberating in our heads are the words of the prophet Isaiah: for the sake of Zion I will not remain silent.   We believe we speak now for the sake of Zion and pray that the Knesset will reject passage of this bill.

 David Ellenson is Chancellor of Hebrew Union College. Deborah Lipstadt is Professor of Modern Jewish and Holocaust Studies at Emory University.