On Monday, the Supreme Court declined to hear Rhines v. South Dakota, a disturbing case that sits at the intersection of anti-gay animus and capital punishment. The justices’ decision clears the way for South Dakota to execute a man, Charles Rhines, who may have been sentenced to death by a homophobic jury because he is gay. Rhines never had a great chance of getting his case to SCOTUS. But the court’s refusal to hear his appeal is still a disappointing dodge, one that undermines gay Americans’ Sixth Amendment right to an impartial jury.

The facts of Rhines are both grisly and bizarre. In 1992, Donnivan Schaeffer caught Rhines robbing the doughnut shop where he worked. Rhines promptly stabbed Schaeffer with a hunting knife, killing him; he later confessed to the crime. Prosecutors tried him for first-degree murder and asked all but one of the jurors whether they would harbor bias against him due to his homosexuality. Ten jurors said no; one said that homosexuality was “sinful” but that Rhines’ orientation wouldn’t affect her decision in the case.

During trial, prosecutors brought witnesses who testified—arguably gratuitously—about Rhines’ sexuality. One noted that she had seen her husband “cuddling” with Rhines and that Rhines said he hated her because her husband loved her instead of him. Another testified that he had a sexual relationship with Rhines. The jury found Rhines guilty and proceeded to decide whether to sentence him to death or to life in prison without the possibility of parole.

That’s where deliberations went truly off the rails. The jury sent the trial judge a note posing several questions about the consequences of life without parole. Multiple questions seemed to indicate that jurors were concerned that Rhines, as a gay man, would enjoy himself too much in prison. Would Rhines, they wondered, be able to “mix with the general inmate population”? Could he “brag about his crime” to “young men”? Could he “marry or have conjugal visits”? Would he ever “have a cellmate”? After the judge responded that he could not answer these questions, the jury sentenced him to death.

Later, several jurors issued sworn declarations confirming that deliberations were tainted by anti-gay bias. One juror stated that other jurors “knew that [Rhines] was a homosexual and thought that he shouldn’t be able to spend his life with men in prison.” Another remembered hearing a juror say that “if he’s gay we’d be sending him where he wants to go.” And a third juror said that there “was lots of discussion of homosexuality” and “a lot of disgust” over Rhines’ orientation.

In his appeal, Rhines argued that these declarations are a smoking gun that prove his sentence violated the Sixth and 14th Amendment’s guarantee of an “impartial jury” in “all criminal prosecutions.” But there was a problem: Like many states, South Dakota has a “no impeachment” rule that bars defendants from impeaching jury verdicts with evidence of statements made during deliberations. The juror declarations, shocking as they are, clearly fall under this rule. So state law prohibits Rhines from using them to attack his sentence.

The Supreme Court, however gave Rhines a glimmer of hope in the form of 2017’s Peña-Rodriguez v. Colorado. In that landmark decision, the court held that the “no impeachment” rule must give way when “a juror comes forward with compelling evidence that another juror made clear and explicit statements indicating that racial animus was a significant motivating factor in his or her vote to convict.” If racial animus is bad enough to override the “no-impeachment” rule, Rhines argued, shouldn’t anti-gay animus be, too? After all, state-sponsored anti-gay animus is also unconstitutional. The principle laid down in Peña-Rodriguez with regard to race, Rhines insisted, should logically extend to sexual orientation, as well.

But the Supreme Court, it seems, has no appetite to consider that question. Its hesitation to expand Peña-Rodriguez to gay defendants is regrettable but understandable. The justices grappled with precisely this question during oral arguments in Peña-Rodriguez Chief Justice John Roberts asked Jeffrey Fisher, who represented the defendant, why his argument was limited to race and did not extend to sexual orientation. Fisher responded, in short, that racism is uniquely evil, so the court can create “race-specific rules” in the jury context; “we do not,” he said, “leave any stones unturned when it comes to race.” He added, though, that the justices might later extend the rule to sex and beyond.

The court has not yet had an opportunity to take up Fisher’s offer and extend Peña-Rodriguez to sex. Perhaps that’s for the best; after issuing a major decision that unsettles precedent, the justices prefer to sit back and watch it percolate in the lower courts before revisiting and revising it. Their refusal to hear Rhines, which was apparently unanimous, suggests the court isn’t ready to clamp down further on bias in the jury room. That’s terrible news for Rhines, and for other gay people who face homophobic juries. But it doesn’t forestall a future court from returning to Peña-Rodriguez and broadening it to protect gay defendants.