INJUSTICE ON THE US SUPREME COURT

by Jonathan Feldstein

My mother not only wanted me to be a lawyer, but she had me pegged as a US Supreme Court judge. Unfortunately, I never went to law school.

I was thinking of this recently when I learned that three of the US Supreme Court judges with whom I have something in common, sadly voted with the 6-3 majority on a case that was personal and meaningful to me, and to thousands of people in my situation. http://www.jpost.com/Israel-News/US-Supreme-Court-invalidates-Jerusalem-passport-law-405391

The case was filed by a family of American immigrants to Israel, like mine, whose Israeli born son was unable to list “Israel” as his place of birth on his US passport because he was born in “Jerusalem.” That’s right; the US government does not recognize Jerusalem as Israel’s capital, much less part of Israel. Successive presidents have promised while campaigning to move the US embassy from Tel Aviv to Jerusalem, but none has ever done so. It’s an affront that Israel is the only country who’s historic, biblical, and modern capital is not recognized as such.

But there’s a vast difference between moving an embassy and allowing a person to register his or her place of birth, in Jerusalem, as being in Israel. Even if one were to go by the 1949 armistice line, all Israeli hospitals in Jerusalem are in “western” Jerusalem, meaning territory Israel controlled from before 1967. (If you’re not clear on the nuance, please email me and I can explain.)

When my son was born in Jerusalem nearly ten years ago, other than the joy of his birth, two parallel things went through my mind. First, that we were going to have to join the fight to get “Jerusalem, Israel” listed on his U.S. passport. Second was that just by his being born, he fulfilled the dreams of generations of Jews scattered throughout the world for 2500 years, to return to Jerusalem. Prayer for return to, and rebuilding of, Jerusalem since the destruction of the Second Temple is part of Jewish worship, every day, three times a day. That’s a lot of days, and a lot of prayers.

I thought about my own relatives, and the two in specific for whom my son is named. They were born and lived in a time and place where being a Jew was dangerous, where anti-Semitism was rampant, and where slaughtering of Jews just for being Jews was commonplace. My son is named for my great grandfather and my second cousin, both of whom were murdered by the Nazis. As religious people, beseeching God to be able to come to Jerusalem and for Him to restore our holy city was surely something they did regularly. Seventy years later, their descendant was born in Jerusalem, fulfilling dreams for which they prayed fervently, but maybe could never imagine.

The Supreme Court decision to stand with the Obama administration refusal to allow us to list my son’s place of birth as “Jerusalem, Israel” is an injustice. Siding with Americans who are born in Jerusalem would not have been mutually exclusive to anything, or anyone’s rights. Nor would it harm U.S. interests.

Rubbing salt in the wounds is that three Supreme Court judges who are American Jews voted with the majority, for the Obama administration, against the family who brought the initial case, against my son, and against Jerusalem. I may not be a lawyer, and will never be a Supreme Court judge, but I have some things in common with these three judges all the same.

We were all born in America and are all proud Americans. We are all descendants of Jewish immigrants to the U.S. Some, like me, have a parent who is an immigrant, at least on one side. Some have a few generations of being born in the U.S., as I do, on the other side.

If we go way back, we are all descendants of Jews who were expelled from Israel centuries ago. In more recent times our families come from parts of the world in eastern Europe where they lived in similar conditions, some more religious than others and some less so, but all Ashkenazi eastern European Jews, albeit American born.

It’s hard to imagine that the ancestors of justices Bader-Ginsburg, Breyer, and Kagan did not live in conditions very similar to my own relatives who came from Hungary, Poland, and Russia. It’s impossible that those who remotely followed Jewish tradition didn’t utter the very same prayers that my relatives did, praying, weeping, dreaming to return to Jerusalem.

It seems that this is where similarities end, or at least many of them. In fact, when my son was a baby and before we went to the US Consulate in Jerusalem to apply for his passport, a day I’ll never forget, I was prepared to engage in an act of civil disobedience, willingly violating U.S. law, for the sake of Jerusalem. I won’t say how because maybe someone else will want to do it and succeed, but I had a plan to get my son a U.S. passport, that affirms he was born in Israel.

We may have the privilege of living, shopping, and going to the pool in Jerusalem today, but Jerusalem is still not completely restored, not yet. We still pray. We are still charged by Psalm 137, “If I forget you, Jerusalem, may my right hand forget its skill. May my tongue cling to the roof of my mouth if I do not remember you, if I do not consider Jerusalem my highest joy.

I understand the resistance to recognize Jerusalem as part of Israel, albeit that it’s wrong and unjust. My thinking is very simple. Jerusalem has been, is, and always will be Israel’s capital. There’s nothing mutually exclusive in recognizing this as fact. And maybe one day, if our neighbors decide that it’s more valuable to make peace and build a future for themselves, rather than to fight us and blame us for all their problems, if a political and diplomatic negotiation concludes that we can share Jerusalem, then the U.S. can recognize that reality. But for now, the reality is what it is, and it’s a gross injustice that the U.S. does not lead the nations of the world in affirming that.

Who knows, maybe by doing so, our neighbors who also claim that Jews have no historical presence in Jerusalem will realize that if they want a piece of the pie, they need to sit at the table.

There’s no higher court on earth to appeal the Supreme Court’s ruling. Now we must pray that the next president will not only move the embassy and recognize Jerusalem as Israel’s capital, but that one day, U.S. policy will change, and the U.S. “Consulate” will be descended upon by thousands of people like us, waiting in line patiently, with joy in the air, and willingly pay to renew their passports and have “Jerusalem, Israel” listed as their place of birth.

As my son grows up and thrives in Israel, it’s hard not to imagine his namesakes, and all the generations of our relatives who could only pray for this to happen, weeping from heaven in great joy at the fulfillment of their prayers, in our lifetime. It’s hard to not to imagine as well, the relatives of Justices Bader-Ginsburg, Breyer, and Kagan not weeping as well. But not from joy.

I’m not suggesting that they should have voted as Jews before being Americans. In fact, a central tenant of Jewish law is that “the law of the land is the law.” Any case that makes it as far as the Supreme Court can go either way. Their decision may be bound in US law that they can hang their hats on. But I wonder if any of them considered the words of Psalm 137, or the prayer and yearning of their relatives to restore and return to Jerusalem.

Maybe their decision can’t be undone, but I pray that Justices Bader-Ginsburg, Breyer, Kagan, and the others will realize their mistake, repent from their mistaken decision, and that their tongues not only don’t cleave to the roof of their mouths, but that they become a true voice for justice vis a vis Jerusalem.

This article first appeared in the Times of Israel.  Reprinted with permission of the author.
Jonathan Feldstein was born and educated in the U.S. and immigrated to Israel in 2004. He is married and the father of six. Throughout his life and career, he has been blessed by the calling to fellowship with Christian supporters of Israel and shares experiences of living as an Orthodox Jew in Israel. He writes a regular column for Charisma magazine’s Standing With Israel. You can contact Jonathan at firstpersonisrael@gmail.com.