A federal court released its decision regarding whether it is permissible for the United States to refuse to enter “Jerusalem, Israel” on the passport of an American born in Jerusalem on Tuesday, July 23.  The result was not unexpected.  The court decided that a portion of the Foreign Relations Authorization Act, which congress enacted in order to allow Israel to appear alongside Jerusalem on such a passport, was an unconstitutional law.  The basis for that decision was that in enacting that law, congress had impermissibly intruded upon the exclusive power of the Executive branch to conduct diplomatic relations with foreign entities.

But the surprise, and the anger – for those who disagree with the decision – should be directed at the Executive branch for its long–held position that Jerusalem is not part of Israel.  And we learn in this Opinion, what is driving this long-held position. It is a fear of anger and violence if the U.S. does something to “undervalue” “Islamic rights in Jerusalem.”

Got that? The U.S. is afraid of undervaluing “Islamic rights in Jerusalem.” Perhaps the decision makers in the U.S. Department of State and all the Secretaries of State never had the opportunity to view the very important interview of Arabic Studies professor and scholar Mordechai Kedar gave to an Al Jazeera anchor.  See that interview at the end of this article.

Congress sought to correct what it viewed as an incorrect decision by the Executive branch. But the judiciary branch could not allow that.

BACKGROUND

Menachem Zivotofsky was born in Jerusalem to American parents.  Shortly after his birth, Zivotofsky’s parents applied for a passport for him.  In the application, Zivotofsky’s mother listed his birthplace as Jerusalem, Israel.

But the U.S. State Department issued the child’s passport listing only Jerusalem – no country was listed – as his place of birth.

That year, 2002, Zivotofsky’s parents filed a lawsuit against the State Department on their son’s behalf, seeking to have a passport issued to their son which would list, as requested in the original application, Jerusalem, Israel, as the child’s birthplace.

This case has traveled up and down the federal court system, stopping in some courts more than once.  It even reached the U.S. Supreme Court where a subsidiary issue was heard two years ago, before being sent back down the court system for further development.

The Court of Appeals for the D.C. Circuit declared unconstitutional a portion of the 2002 Foreign Relations Authorization Act which would permit a passport to be issued listing as the place of birth Jerusalem, Israel for  Zivotofsky and others in his position.

This is the relevant portion of the FRAA which the court declared unconstitutional:

(d) RECORD OF PLACE OF BIRTH AS ISRAEL FOR PASSPORT PURPOSES. For 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’s legal guardian, record the place of birth as Israel.

What the court did was – not surprisingly, even if one disagrees with the result – rule that congress exceeded its powers by passing legislation which, the court found, wrongly interferes with matters over which it does not have ultimate authority. That exclusive authority instead rests with the Executive branch. The power to recognize the sovereignty of another country and to determine foreign policy, is one of the powers which the U.S. government’s separation of powers doctrine grants to the Executive branch.

What is significant about this case is not that the Court of Appeals has ruled that Jerusalem is not part of Israel.

The more interesting question is why the Executive branch is so set against even something so small as to allow a child’s passport to state that when a child was born in Jerusalem, he was also born in the country of Israel.

The D.C. court noted that it has always been the position of the Executive branch to remain neutral on the question of who has sovereignty over Jerusalem.  It quotes from the State Department’s Foreign Affairs Manual which was in effect in 2002, when Menachem Zivotofsky was born and when his parents sought to have his passport list Jerusalem, Israel as his birthplace.  The FAM explicitly states that, “for an applicant born in Jerusalem: ‘Do not write Israel or Jordan’ on his passport.”  It also states that “Israel ‘[d]oes not include Jerusalem.’”

The Supreme Court has ordered Tel Aviv to enforce the law that prohibits stores from operating on the Sabbath. It overruled a February ruling by a lower court, which accepted the city’s claim that it carried out its responsibility by fining business owners without a need to force them to close.

The three-judge panel, including Court President Asher Grunis, ruled that under the “current legal management, the municipality in effect allows violating the law.” He added that there is concern that the city prefers to profit more from sales on Shabbat than it can collect from fining businesses violating the law.

The Jerusalem District Court handed down its decision on Thursday in The State of Israel, Israel Police vs. Lesley Sachs, Bonnie Riva Ras, Sylvie Rozenbaum, Rabbi Valerie Stessin, and Sharona Kramer, the five women who were arrested on April 11, 2013 while praying at the Western Wall.

Judge Moshe Sobell decided against the police appeal, confirming the Magistrate Court decision by Judge Sharon Larry-Bavly, which stated that there was no cause for arrest and that the women did not disturb the public order. The women were released with no conditions and police request for a restraining order against their entering the Kotel site was rejected.

Judge Sobell also declared that the Supreme Court decision of 2003 was never intended to serve as an injunction that would make the women’s prayers while clad in tallitot a criminal violation. The judge added that there is no reasonable suspicion that the women are violating the Supreme Court decision. As to the High Court recommendation that the women pray in the Robinson’s Arch, Sobell declared that this does not necessarily mean that the women are prohibited from praying at the Western Wall’s women’s section.

The judge also declared that the women are not violating the restriction in the law governing sacred sites, which says that visitors at the Western Wall are to pray and hold religious celebrations according to the “local custom.” In the judge’s view, the “local custom” should to be interpreted with national and pluralistic implications, and not necessarily the Orthodox Jewish customs of the city of Jerusalem.

As to the charge of endangering or disturbing the public peace, the Judge ruled that even if the women had behaved in a way that disturbed the public order, they never posed a danger to the public peace. The women were in no way suspect of violent or verbally unruly behaviors that would endanger the public.

Judge Sobell ruled that there are to be no limitations imposed on the accused women.

Anat Hoffman, Chairperson of Women of the Wal, said, “Today Women of the Wall Liberated the Western Wall for all Jewish People. We did it for the eight year old girl who can now dream of having her Bat Mitzvah at the Wall, and for the grandmother who cannot climb on a chair in order to see her son’s Bar Mitzvah. We did it for the great diversity of Jews in the world, all of whom deserve to pray according to their belief and custom at the Western Wall.”

It is not yet known whether the police is considering appealing today’s ruling at the Supreme Court.

Recently, one of the original sponsors of the Defense of Marriage Act (DOMA) – Republican Senator Rob Portman of Ohio – changed his mind. He now supports same sex marriage. DOMA defines marriage applicable only to a man with a woman. It does not extend marital benefits to same sex marriages. This act was passed and endorsed by President Clinton who has also recently changed his views about it. Many states now have passed legislation that allows same sex couple to get married.

I have long ago stated my views about homosexuality and my opposition to gay marriage. The short version is that homosexuals should be treated like the human beings they are. And that we not focus on who they are attracted to. To the extent that they might engage in behavior that is forbidden by the Torah is not anyone’s concern. Unless they do so proactively with the intent of promoting it as a legitimate alternative lifestyle. That has to be opposed as would promoting any sinful act.

And let me be clear about the sinfulness of the forbidden homosexual act. There are some gay activists that have a certain familiarity with the bible that want to reinterpret it as somehow permissible. The very idea of doing such a thing gives new meaning to the word rationalization. It is the height of absurdity to say that an act is biblically permitted when the bible clearly forbids it. The bible says what it says. You can’t rationalize it away no matter how much you would like to.

My opposition to same sex marriage is based on the fact that by its nature marriage is a religious ceremony celebrating the holy union between a man and a woman. Even though there is such a thing as civil marriages, in my view the source of all marriages is based on a religious idea. I don’t believe that there would necessarily be an institution called marriage without the bible.

Civil unions are an entirely different animal. The argument might be made that all legal rights granted to a male-female union should be extended to a same sex union. But in the phrase ‘marriage ceremony’ the very word ceremony has religious ritual overtones.

But this is not my issue today. What troubles me is the Zeitgeist of ridding the world of the idea that homosexual behavior is forbidden by God. It is becoming increasingly fashionable to view a clear act forbidden by the Torah as completely permissible and even laudable in that it is an expression of love that helps cement a loving relationship.

This is not a problem if one is an atheist. Or even a deist. It is not a problem if one is even generically religious without subscribing to any biblical doctrines. It is entirely libertarian. It is entirely humanistic. And even compassionate. But in my view as a bible believing Jew, it is wrong.

If one accepts the bible’s clear admonition against a forbidden act the way I do, they cannot be comfortable with the direction this country is going. It is one thing to be tolerant. That is a function of ‘live and let live’ – a dictum I subscribe to. It is not my job or right to tell others how to live, whether I approve of it or not. It is another to normalize a sinful act.

The forbidden act of homosexual sex is no different than any other act that is forbidden by God. Normalizing it and treating it as though it is permitted does not, I believe, smell good in the nostrils of God. It would be no different than normalizing biblical level adultery. Adultery is forbidden even if all partners are consensual as would be the case in an open marriage. Just because there is a lot of adultery between consenting adults in this country does not mean we have to turn it into a positive value. The same thing is true about the biblically forbidden act of gay sex.

The increasing pressure to repeal DOMA and encourage legitimizing gay marriage across the land is a move in that direction. It may satisfy humanitarians and libertarians. But is disconcerting to those of us who believe that it is wrong to place even a quasi religious imprimatur via what we want to call marriage to a union between members of the same sex. Because such unions imply that the sexual act that accompanies marriage is just as legitimate as the sexual act between a married heterosexual couple.

Justice Menachem Elon, who passed away on February 6, revolutionized the study of Jewish law, Mishpat Ivri. He personally took the Choshen Mishpat – the hornbook of Torah laws on interpersonal relations – out of the closet of the yeshivas, where it was the specialized expertise of rabbis given the honorific accolade of Yadin Yadin, into the modern courtroom.

Scores of leading American law schools now emulate Elon and offer courses in Jewish or Talmudic law. Israeli lawmakers in the Knesset now look proudly to our traditional teachings when they enact laws that govern a contemporary society because Elon taught them that the wisdom of centuries of rabbinic study and debate can guide a modern society.

He was an intellectual revolutionary, but unlike most historic figures who have broken new paths, he had no ego. All who knew him were struck by his humility, personal grace, compassion, and sweetness. Lawyers are a contentious lot, but Menachem Elon – a mentor to hundreds of lawyers – had no sharp elbows. Though he differed frequently with colleagues on the Israeli Supreme Court – and particularly with Aharon Barak, who served as president of the court for much of Elon’s tenure – he never was heard to utter an unkind word about those with whom he disagreed.

As a frequent guest in the Elon home and one who was in tune with virtually all his views, I expected expressions of acrimony from him over issues on which his opinions were rejected by less traditionally oriented colleagues. I never heard what I expected. Dissenting judges frequently say, “I respectfully disagree,” not truly meaning the respect that the words express. Justice Elon truly respected even those who disagreed or did not comprehend his own commitment to Torah and Halacha.

A remarkable feature of Elon’s scholarship was his insistence on personally doing the work that bore his name. When I first met him, the English translation of his monumental Ha-Mishpat Ha-Ivri was being crafted by American lawyers and scholars Bernard Auerbach and Melvin J. Sykes. Elon happily confided in me how much he enjoyed his many sessions with the translators, reviewing punctiliously the remarkable work they did in making his landmark treatise understandable (and even enjoyable) to English-speaking readers.

In their Introduction to the Jewish Publication Society’s four-volume translation, Auerbach and Sykes observed that they had benefited from “the many hours we have spent with Justice Elon” and said that the product was “more than just a translation, our work has been a collaboration with him.”

Justice Elon encouraged me to file friend-of-the-court briefs in cases pending in the United States Supreme Court to transmit to the American justices the wisdom of Jewish law on issues that came before the court.

In 1999 and again in 2007 the Supreme Court considered the constitutionality of execution methods that were excessively cruel. A brief I wrote and filed in 1999 on behalf of Jewish groups appended 30 pages from an English translation of the Talmud in Sanhedrin. My friend-of-the-court brief concluded with the observation that “if execution by the electric chair, as administered in Florida, results in unnecessary pain and disfigurement, it would be unacceptable under the principles underlying the traditional Jewish legal system applied 2,000 years ago, and should also be unacceptable under the Eighth Amendment today.”

To top off more ancient authorities, I cited and quoted Justice Elon’s conclusion in an opinion he wrote for the Israeli Supreme Court in State of Israel v. Tamir:

According to Jewish law, a death sentence must be carried out with the minimum of suffering and without offense to human dignity. This is based on the biblical verse, “Love your fellow as yourself,” and the rule is, “Choose for him a humane death.” From this we declare that even a condemned felon is your “fellow.” The justice gave my brief – which I sent him in draft form before I filed it – the personal attention and critical review I had hoped for, and he even considered seriously (but wisely rejected) my request that he formally attach his name to it.

He was, of course, a master of the Hebrew language, and he wrote lovingly and poetically not only about the law but also about Jerusalem and the Land of Israel. He came within a hairs-breadth of being selected Israel’s president, and no one could have filled that position with greater elegance than Menachem Elon.

The spiritual leader of the Shas movement, Rav Ovadia Yosef, on Saturday night attacked the women of the Reform movement who pray at the Kotel.

In his weekly post-Shabbat class, Rav Yosef said that women who wrap themselves in a talit transgress Jewish law: “There are those Reform, they come to the Western Wall clad in a talit. They’re not performing a mitzvah, they’re transgressing, because of ['A woman must not wear men’s clothing, nor a man wear women’s clothing, for the Lord your God detests anyone who does this' (Deut. 22:5)].”

Rav Yosef explained further that “Women are absolved of saying the Shma Israel – they needn’t make the blessing, much more so to wear a talit and make a blessing over it. A woman must not wear men’s clothing – if she puts them on, she transgresses. Women, even righteous ones, do not put it on.”

A 2001 Knesset law says that “no religious ceremony shall be held in the women’s section near the Western Wall that includes taking out a Torah scroll and reading from it, blowing the shofar, or wearing tallitot or tefillin. Violators shall be imprisoned for seven years.” But the law, as well as the 2004 Supreme Court decision that permitted women to pray as they wish at the Robinson Arch, next to the Kotel, did not refer to the actual wearing of talit as being contrary to Jewish law.

Rav Moshe Feinstein would side with Rav Ovadia’s opinion, based on his answer to the halachic inquiry (Igros Moshe – OC 4:49): “Can a woman wear a Talit? Answer: No. The Shulchan Aruch rules that it is Yuhara – religious arrogance (Shulchan Aruch, Orach Chaim 17:2). And if it is a Talit of men, there is a problem of Lo Tilbash – the prohibition of cross-dressing.” (source: ravaviner.com).

The Talmud (in Eruvin 96a) says that Michal, daughter of King Shaul and wife of King David, put on Tefillin. However, the Yerushalmi Talmud (B’rachot 2:3) says that the Sages objected to her practice.

As to the stories about Rashi’s daughters putting on teffilin, Ari Z. Zivotofsky, writing in the OU’s Jewish Action, suggests there is no evidence that Rashi’s daughters wore teffilin. Other sources say they may have, indeed, put on teffilin, but privately.

Early Friday morning, a group of some 200 Palestinians, supported by international activists, built a tent city in E1 area separating Ma’ale Adumim from Jerusalem, and announced the creation of the outpost “Bab al-Shams” (Gate of the Sun).

Civil Administration officials arrived in the area, and issued an order to remove this “fresh invasion” off the state-owned land. During the day, Friday, police prevented the entry of additional activists and senior PLO officials Saeb Erekat and Hanan Ashrawi.

“The soldiers treated us improperly and savagely before they forced us to go back to Ramallah,” Ashrawi told Ma’an.

A vehicle carrying Ashrawi and PA minister of social affairs, Majida al-Masri, was stopped and searched at a checkpoint, with soldiers preventing the officials from continuing to the E1 area, despite holding Jerusalem ID cards.

Ashrawi said earlier that she fully supported and encouraged non-violent popular resistance against Israeli occupation, praising the activists for their “creative” means of protecting Palestinian land.

Al-Masri also congratulated the activists for their actions, saying it provided an example which should be followed across the occupied West Bank.

“Establishing a Palestinian village on Palestinian land slated for confiscation by Israel for thousands of settlement units is a form of popular resistance to the Israeli occupation and land theft,” the PA official said.

“Bab al-Shams must be set up in all Palestinian districts, in Hebron, Bethlehem, Ramallah, Nablus, Tubas, the Jordan Valley, Salfit, Qalqiliya, Jenin, and Tulkarem. Organizers of such protests must receive support,” al-Masri added.

It was reported, however, that Mustafa Barghouti, member of the Palestinian “The Day After” committee, visited the outpost this morning.

Israel’s military has also prevented activists from neighboring areas access to the “protest village” since Friday.

“We only have our determination, and it will not be easy to expel us from our homes. We will use our experience and skills to remain on the land,” local activist Abdullah Abu Rahma told Ma’an.

Leading activist Salah al-Khawaja said that the group is determined to stay on the land. “This is Palestinian land, it is our right to build our villages on our land whenever we like. We will not accept displacement and we will stay,” he said.

Four Bedouin families from the area, claiming ownership of the land, petitioned the High Court to prevent the demolition.

The petition, filed by attorney Tawfiq Jabarin, states that “the tents were erected on private lands as part of a tourism project to attract tourists who wish to learn about the heritage of the Bedouin living in the area, and enjoy the desert Bedouin experience.”

According to the petition, the project is called “Albadia” and supposedly includes “a variety of fun activities to encourage familiarity with Bedouin Arab culture,” and that the “Initiative involves seasonal winter and spring period only.”

Following the petition, the High Court issued a temporary order staying the evacuation of the area as long as there are no security issues that require an urgent evacuation. The state, however, will appeal to the High Court tonight (Saturday) to cancel the stay order, and enable the evacuation of the outpost.

Meanwhile, Netanyahu ordered the closing of all access roads, and for now the area is declared a closed military zone.

The activists established the outpost in reaction to Prime Minister Benjamin Netanyahu’s decision to hasten the planning process of Mevaseret Adumim, the neighborhood that should be constructed in the E1 area, between Ma’aleh Adumim and Jerusalem.

Netanyahu’s decision caused a wave of international condemnation and calls for Israel to change its mind.

In a very unsurprising move, the Supreme Court overruled the Central Elections Commission and determined that MK Hanin Zoabi of the Balad party can run in the upcoming elections.

Despite the Elections Commission being clearly right in saying she breached the requirements regarding who is not allowed to run, and the Supreme Court being clearly wrong in having overruled them, I probably have to support Zoabi’s right to run.

Zoabi, as you should recall, was an involved passenger on the Mavi Marmara blockade run attempt in 2010.

On the Mavi Marmara, a group of passengers, connected to the Turkish IHH (designated as a terror organization by Israel), attacked IDF naval troops, including with at least one gun, during their attempt to break the blockade of Hamas terror-controlled Gaza and provide aid to Israel’s enemy.

Zoabi set off a political storm in Israel with her participation on that particular boat.

So you must be asking yourself, why am I supporting her right to run in the Knesset, despite her association with known terrorists and attempting to aid the enemy?

After all, in Israel’s Elections Law it clearly states the following are the basis for individuals and parties not being allowed to run:

1. The rejection of Israel’s right to exist as a Jewish and democratic state.

2. Incitement of racism.

3. Support of the armed struggle of enemy states or terrorist organizations against the state of Israel.

4. A reasonable basis to conclude that the party will be used for illegal activities.

Zoabi seems to clearly be in violation of at least #1 and #3.

And the Balad party’s stated goal is the “struggle to transform the state of Israel into a democracy for all its citizens, irrespective of national or ethnic identity,” is clearly in violation of #1.

And its not like there isn’t history here.

You might recall the famous case of MK Azmi Bishara, not coincidentally, also from the Balad party.

Bishara ran away before he could be arrested for actively aiding Hezbollah during the Second Lebanon War. And then the Knesset banned the Balad party, but once again the Supreme Court overruled them and let Balad run.

I have two reasons for this admittedly strange position.

The first is that it’s a badly written law.

It’s vague and it potentially chills free speech.

Parts of the law above are incredibly vague (such as #2), and there’s far too much wiggle room that allows it to be spuriously applied to any political enemy, such as the recent attempts to use it against Ben-Ari and Naftali Bennett, in an attempt to block them from running.

It’s a law crying out for selective abuse, just as it was selectively abused in the past against another rightwing party who was becoming very popular, and yet it was never used against any leftwing anti-Jewish parties (such as Shinui) or anti-Settler parties (such as Meretz), no matter how racist they might be considered, nor despite their attempts to remove the Jewish component from Israel’s definition as a Jewish and democratic state.

In short, the law is poorly written, it is selectively applied, and until the law is fixed, it’s problematic to have it applied to anyone, since it can be used against any political enemy.

The second and perhaps more important reason is that the Knesset dropped the ball.

IHH is designated a terrorist organization.

Zoabi was on the boat with a terrorist organization to break the Israeli government’s lawful blockade on a terrorist entity.

Nu?

Why didn’t the Knesset do its equivalent of impeaching her?

Why did the government fail in its charges against her participation in the Mavi Marmara?

Simply because she claimed she was acting independent from the IHH! For heaven’s sake, why isn’t Zoabi sitting in jail?

But that’s only part of it.

The government dropped the ball, in another place. And perhaps not where you think.

The government also dropped the ball, because it still hasn’t fought the Supreme Court, and their self-assumed right to overrule any Knesset ruling they don’t like.

Until the Knesset decides to take a clear position that the Supreme Court is overstepping its bounds and taking on powers it doesn’t have, then the Knesset deserves every slap in the face it gets from the Supreme Court.