(CN) - The Supreme Court seems wary to extend what Justice Elena Kagan called a "very selective vanity plate law" that would let U.S. citizens born in Jerusalem list "Israel" as their birthplace on passports.
The court heard oral arguments Monday in a lawsuit to compel enforcement by the secretary of State of the Foreign Relations Authorization Act of 2003, which would allow the "Israel" designation for people born in Jerusalem.
The secretary has refused, claiming that the act overlaps executive powers such as the right to recognize foreign countries, and today's arguments repeatedly turned to the volatile Arab-Israeli situation.
Ari and Naomi Siegman Zivotofsky sued to enforce the law after their son Menachem was born in Israel in 2002, but the government said that this would undermine its position of neutrality on the issue of whether Israel or Palestine controls the holy city.
The D.C. Circuit agreed with the government even after the Supreme Court said that the Zivotofskys were not asking it to pick a side in the Jerusalem dispute.
Alyza Lewin, an attorney for the couple, tried to avoid the political question altogether at Monday's hearing.
"How an American is identified in his or her passport does not amount to formal recognition by the United States," she said, according to a court transcript. "That passport would not, when shown, be making any kind of political statement. It does not state that in all circumstances you have to list Israel as the place of birth. It is merely giving the individual choice."
Justice Stephen Breyer was not convinced. "The Solicitor General, after conferring with the State Department, says, 'Since Israel's founding, every President has adhered to the position that the status of Jerusalem should not be unilaterally determined by a party.' Now, I'm a judge. I'm not a foreign affairs expert. How can I say that I'm right even if I agree with you, and they, who are in charge of foreign affairs, are wrong?"
Time and again, Lewin searched for comparison points and was shot down.
Justice Ruth Bader Ginsburg interrupted when Lewin called Taiwan a "perfect example" of the separation between recognizing birthplace and sovereignty.
"Taiwan and China maintained from the beginning there is only one China, and so Taiwan is a place name," Ginsburg said. "It's a region. There's no question of recognition in the Taiwan event."
Justice Elena Kagan added that, "if you're an American citizen born in Northern Ireland, you can't get the right to say Ireland. This is a very selective vanity plate law, if we might call it that."
Lewin reasserted that "this is not a political declaration," but Justice Anthony Kennedy retorted: "Well, then, I'm not sure why that Congress passed it, then."
Echoing his attitude, Justice Sonia Sotomayor said: "I thought it was a federal crime to say that you were born in the United States when you weren't on an official document. So why is it that it's OK for Congress to say something that hasn't happened, meaning to say that someone born in Jerusalem is actually born in Israel?"