CLS v. Martinez, Content Neutrality, and the Future

I see that David and Rob have already made thoughtful posts about CLS v. Martinez.  I would like to raise a few more issues related to the opinion. 

 The first issue concerns Justice Ginsburg’s statement that the Hastings “all comers” policy is content neutral.  This seems to me to be clearly wrong.  The policy prefers broad, general groups and their sorts of messages over particular groups and their sorts of messages.  If on one end you have a group that includes everybody, and on the other end you have a group like the churches I have seen that list on the front of their buildings the position they take on baptism, predestination, dispensationalism, pre-, mid-, or post-tribulation, etc., (there are such churches) the Hastings policy prefers groups on the front end.  The rule here seems to push groups to be broader and to have broader messages.  It prefers groups that include everybody to religious groups, interdenominational religious groups to particular religious groups, mainline Christian groups to evangelical Christian groups, Reform Jewish groups to Orthodox Jewish groups.  And in each of these cases, it prefers the message of the former to the message of the latter.  It seems too late in the day for the Court to argue that controlling a group’s membership does not affect its message. 

In addition, I wonder about the implications of this decision.  The Court framed its decision narrowly, but the decision’s principle seems to me to be huge.  The opinion creates risks for any religious group (maybe any group) that takes a position on anything and receives government funding.  The government can water down the position of any group by requiring an “all comers” policy.  Would this allow, for example, a state to require that religious colleges take all comers on its faculty, permitting discrimination based only on “neutral and generally applicable membership requirements unrelated to ‘status or beliefs’” (quoting the Hastings policy approved by the Court)? 

A final thought:  Where was Justice Breyer’s opinion?  I realize that he joined the majority, but at oral argument, he wondered about the implications of this policy on an Orthodox Jewish club and noted the incomprehensibility of an exchange of ideas within a forum of groups composed of “all comers.”  It looks like he could have addressed his own questions in a concurring opinion.