With all the effort that the Bush campaign and its allies are putting into trying to convince voters that President Bush would be better for Israel than Senator Kerry, it’s remarkable that there hasn’t been more attention to the matter of Menachem Zivotofsky.

He is a child born to Americans living in Jerusalem who sought to have his place of birth on his passport specified as Jerusalem, Israel. The American State Department denied that request, despite an American law passed in 2003 specifying, in unambiguous terms, that “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 [of state] shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.”

Menachem Zivotofsky and his parents sued, as did Dan and Jocelyn Odenheimer, who made the same request for their Jerusalem-born child and were similarly denied. This week, a federal judge in the District of Columbia, Gladys Kessler, threw the case out of court, ruling in favor of the State Department. The judge ruled that the plaintiffs “lack standing because they have suffered no injury in fact.” And the judge ruled that the federal courts lack jurisdiction over what she called “a nonjusticiable political question.”

Lawyers for the Jerusalem-born children say they plan an appeal. Judge Kessler’s opinion holds that recognizing capitals and sovereignty is an executive branch responsibility. But if the executive branch really believed that, it should have vetoed the 2003 law, rather than signing it and then trying to have it essentially struck down in court. By ruling in favor of the State Department, Judge Kessler isn’t really saying it’s “a nonjusticiable political question” – she is judging it, in favor of the State Department.

Mr. Bush could both preserve his executive branch prerogatives and render the case moot by ordering his state secretary to put the words “Jerusalem, Israel” on the passports. He would simply be recognizing what is obvious to virtually every Israeli and what is American law. Almost every other country in the world is able to choose its own capital and have it recognized by the world. Israel’s prime minister and Parliament have sat in Jerusalem since shortly after the country’s founding. Jerusalem’s citizens vote in Israeli elections and its streets are patrolled by Israeli police. The city has been holy to Jews for thousands of years. The Bush administration’s refusal to recognize Israel’s capital as part of Israel only sends a signal to Israel’s terrorist enemies that it is possible to drive a wedge between Israel and America. And it encourages those enemies to nurse a false hope that they will achieve through some combination of terrorism and negotiation a settlement in which Jerusalem is not part of Israel.