Just three years old, Menachem Binyamin Zivotofsky perhaps is only dimly aware that his name is known to very important people in all three branches of the American government.  Who would blame a child if he did not fully understand that how the line was filled out in something called his U.S. "passport" listing his place of birth is a matter of interest not only in the United States, but also in Israel, the Palestinian Territories, and throughout the Middle East?

The little boy was born on October 17, 2002, in Shaare Zedek Hospital, which opened its doors in west Jerusalem more than a century before his birth.  His mommy, Naomi, and daddy, Ari,  American-born Israelis, traveled to the hospital from their home in Beit Shemesh, a town between Tel Aviv and Jerusalem that was created in 1950, two years after Israel became a state.

When Menachem's proud parents  visited  the U.S. Embassy in Tel Aviv  on Dec. 24, 2002, to obtain his U.S. passport, officials there listed the boy's place of birth as "Jerusalem."  Citing the "Israeli Capital Recognition Act"  written by Congressman Anthony Weiner (D-N.Y.) and signed by President George W. Bush, the Zivotofsky family asked the Embassy to instead list Menachem's place of birth as "Jerusalem, Israel."  

Weiner's legislation, which became law on September 30, 2002, just 17 days before Menachem's birth,  was very specific on this point: "For the purposes of the registration of birth, certification of nationality, 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."   

Nevertheless, the officials at the embassy refused to add the word, "Israel," to the place-of-birth line on Menachem's passport.

Menachem's mommy and daddy were not the only persons upset by this seeming flouting of the law by America's diplomatic representatives in Israel.  Congressman Weiner also was unhappy.  There were phone calls, discussions, and on September 13, 2003, a month before Menachem's first birthday, something called a "lawsuit" was filed in his behalf in a place called Washington D.C. His parents were listed as his guardians in the action filed by attorneys Nathan and Alyza Lewin to compel the State Department to comply with the law. 

When President Bush signed the legislation, he said that U.S. policy regarding Jerusalem had not changed, adding the caveat that if Weiner's bill were  mandatory, as opposed to advisory, it would "impermissibly interfere with the president's constitutional authority to formulate the position of the United States, speak for the nation in international affairs, and determine the terms on which recognition is given to foreign states."

Disputing the President, Weiner asserted: "There's no 'do over' clause in the Constitution. President Bush misapprehends his authority if he believes he can re-write legislation once it has been signed into law.  He had his chance to veto this bill if he so desired, but he didn't, and now his role is clear: execute it, as written."

The State Department has long held that the matter of the status of Jerusalem is an issue to be resolved in peace talks between Israel and its Arab neighbors.  Although presidential candidates often vow to Jewish audiences that they will recognize Jerusalem as the eternal capital of Israel, the State Department has been able to persuade them, after they office, to put the implementation of that promise on hold.  The U.S. Embassy remains in Tel Aviv, rather than in Jerusalem.

On September 7, 2004, Menachem's parents were very disappointed.  His case was dismissed in the U.S. District Court, with Judge Gladys Kessler ruling that Menachem didn't have the standing to sue the United States federal government. Furthermore, the judge said,  the case involved a political matter outside the purview of the courts.  But Mommy and Daddy Zivotofsky didn't give up.  Attorney Nathan Lewin  filed an appeal of the district court's judgment.

In an article published in the Cleveland Jewish News on October 28, 2004, daddy Ari wrote: " This lawsuit in no way lessens our appreciation and love for the United States. Rather, it is about forcing the State Department to follow a law that merely codifies a long-established reality - Jerusalem, and certainly the western part of the city where Menachem was born, has been an integral part of Israel since 1948; no one has suggested changing that status, even after 'final-status' talks are concluded.

The father added that in permitting Americans to identify Jerusalem as part of Israel, Congress simply was restoring fairness.  "An Israeli-Arab who is 'bothered' by the word 'Israel' may have it excluded from his U.S. documents. Thus, his passport might list Haifa as the place of birth instead of Israel. The presence of that word would not change the valid status of the passport. Yet he may have it removed. How does that differ from including 'Israel' on our passport?"

And another thing, said the father, not long after officials refused to list Israel on Menachem's passport, they did list "Jerusalem, Israel" on another American's death certificate.  So, he said, American officials are being capricious in their application of the policy.

On Feb. 17, the U.S. Court of Appeals decided that Menachem in fact has the legal standing to sue. The appeals court remanded Menachem's case to the district court to schedule hearings on the issue of whether the  law written by Weiner concerning Jerusalem is mandatory or advisory.  

Lewin, a member of the Center for Law and Justice of the Zionist Organization of America,  represented the Zivotofsky family on a pro bono basis. Hearing of the Appeals Court decision while traveling in Israel with the leaders of other American Jewish organizations, ZOA National President Morton A. Klein told of raising the issue during a previous meeting with the American ambassador to Israel, Richard Jones.   

"I asked Ambassador Jones whether he would work with us to fulfill obligations under this federal law," Klein said in a press statement.  "Ambassador Jones told me that he was not aware of this issue, but assured me that he would be looking into the matter. We are sending him a copy of the Court of Appeals' decision, in the hope that he will encourage the State Department to reconsider its position and follow the mandate of the U.S. Congress."

For Menachem, of course, all this may be a little incomprehensible.  But daddy Ari is pretty good at explaining difficult concepts.  He is a lecturer in neuroscience at the Bar-Ilan University.