This opens the door to overriding the Court’s decision with legislation. Congress may exercise its acknowledged power and enact a general passport law not limited to Jerusalem that would enable citizens born in Jerusalem to have “Israel” as their passport’s “place of birth.”
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When Congress disagrees strongly with a Supreme Court decision it has not been reluctant to enact a remedial law that effectively nullifies a Court majority’s ruling. The “Lilly Ledbetter Fair Pay Act of 2009,” for example, was passed into law to overrule a 2007 Supreme Court decision that had limited, over a vigorous dissent by Justice Ruth Ginsburg, the period during which employees could sue for employment discrimination. Congress overwhelmingly (but too quickly) passed a “Religious Freedom Restoration Act” in 1993 and then a “Religious Land Use and Institutionalized Persons Act” in 2000 to nullify and limit a controversial 1990 Supreme Court ruling that, in Congress’s view, abridged the constitutional right to free exercise of religion.
I have personally participated in reversing, in real-world terms, the effect of two Supreme Court constitutional decisions.
- (1) In 1986 the Supreme Court ruled 5-to-4 against my claim that Captain Simcha
Goldman, an Air Force psychologist, had a First Amendment constitutional right to wear a yarmulke in an Air Force hospital notwithstanding a military regulation that mandated uniform dress and did not authorize a head covering. I worked with Congressman Stephen J. Solarz to draft and enact a law in 1987 that had the practical effect of overruling the Supreme Court majority. Military personnel now have the legal right under Section 774 of Title 10 of the United States Code to wear a yarmulke with their military uniform. In fact, the military now distributes a yarmulke that religiously observant Jewish servicemen can wear.
- (2) On June 27, 1994, I lost by a 6-to-3 Supreme Court vote, a case in which the majority
held that New York’s public financing of a school for handicapped children in the Satmar village of Kiryas Joel was an unconstitutional violation of the First Amendment. The Court’s ruling meant the school would have had to close at the end of the month. With the help of Assemblyman Sheldon Silver (who had recently been elected speaker of the New York State Assembly), a new law was quickly enacted to remedy the flaw Justices Kennedy and O’Connor had found in the New York law that the Court had invalidated.
When the New York courts struck down the second Kiryas Joel law as still too limited to satisfy the constitutional standard, we drafted an expanded substitute to keep the school open. Five justices of the Supreme Court initially approved the constitutionality of that third Kiryas Joel law by voting to keep the school open over the summer before the Court was to decide whether to give full-fledged consideration to the constitutional validity of the third Kiryas Joel law.
In June 1999 it looked like the Kiryas Joel case was going to be up in the Supreme Court a second time. But during the summer the New York Legislature passed a fourth Kiryas Joel law that met any conceivable constitutional challenge. As a result, the school in the Village of Kiryas Joel that the Supreme Court found unconstitutional in June 1994 has not, over the past two decades, closed its doors for a single day.
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Is there a similar route to achieve the result that a Supreme Court majority has now blocked? American citizens born in Jerusalem may have “Israel” listed in their U.S. passports as their place of birth if Congress passes a law that would, in addition, eliminate unnecessary federal bureaucracy and save taxpayer money.
