The Supreme Court weighed a case on Tuesday over whether the city of Boston was wrong when it refused to allow an organization to raise a Christian flag in front of City Hall.

Outside of Boston's City Hall stand three flagpoles: two for the flags of the United States and the State of Massachusetts. A third flagpole typically raises Boston's city flag but leaves it open for private groups to conduct commemorations in front of the building.

Justices considered whether the third flagpole stands as a message conveyed by the government or whether it serves as a forum open to anyone or any group that wishes to display a particular flag. Boston argues the flagpole is an expression of the city's views and would pose an unconstitutional government endorsement of religion, according to briefs prepared for the case.

"One of the points that Justice [Stephen] Breyer was making is if you are on the street in Boston ... why would you think that this is anything other than the government flying a flag?" Justice Elena Kagan asked Tuesday.

Boston's position is countered by both President Joe Biden's administration and the American Civil Liberties Union. Harold Shurtleff, founder of Camp Constitution, previously brought the lawsuit before two lower courts that ruled in favor of the city, seeking an injunction to raise what he described as the "Christian flag."


Sopan Joshi, assistant to the Justice Department solicitor general, argued against the city of Boston but proposed a simple solution to impose a two-track approach that would limit the third pole to flags of countries.

"Could it limit it only with the purpose of discriminating against religious viewpoints?" Justice Neil Gorsuch asked Joshi.

"I don't believe that would be appropriate. This court has said that even in a nonpublic forum, viewpoint discrimination is impermissible," Joshi said.

Legal counsel for Shurtleff has argued Boston's position disallowing the Christian flag to fly serves as a form of censorship against the flagpole's intended purpose despite Boston officials claiming the flagpole was never open to anyone.

"We must not give government the power to censor disfavored viewpoints in a public forum,” said Mat Staver of Liberty Counsel, representing Shurtleff Tuesday.


Even if the Supreme Court majority sides with plaintiffs in the lawsuit, Boston could end the flag-raising program altogether or alter the rules to only allow for flags of nations, following a similar proposal raised by Joshi on Tuesday.

The court is expected to issue a ruling over the case in June.