The US Supreme Court declined Monday to take up the question of whether Washington DC’s metro (WMATA) violated the First Amendment by banning religious advertising, letting a lower court ruling stand.

The DC-area metro rejected a Christmas bus advertisement from the Catholic Diocese because of a blanket restriction of religious advertising. For Christmas-season advertisements specifically, the transit authority distinguished between “religious” and “secular” ads. In its petition for certiorari, the Catholic diocese argued that such viewpoint discrimination “allows WMATA to discriminate against religious speech with impunity.”

Justice Neil Gorsuch submitted a statement on the denial, arguing for reversal of the DC Circuit court’s ruling.

Gorsuch, joined by Justice Clarence Thomas, noted this as “viewpoint discrimination by a governmental entity and a violation of the First Amendment,” but not something they could take up because Justice Brett Kavanaugh, having been on the DC Circuit at the time of the argument, would have to recuse himself.