I Love A Contradiction, Don't You?
But the problem with answers 1 and 3 is the public policy problem of the courts determining what sets of unprovable beliefs are and are not objectively irrational. On one hand, courts have even gone so far as to take judicial notice of the irrationality of certain beliefs. See, e.g., United States v. Downing, 753 F.2d 1224, 1238 n. 18 (3d Cir. 1985) (courts may take judicial notice of the invalidity of phrenology or astrology). But on the other hand, taking a step in this direction threatens important Establishment Clause and Free Exercise rights. That’s why in United States v. Ballard, 322 U.S. 78 (1944), the Court found that it could not inquire into the scientific validity (or lack thereof) of faith healing, in a case involving a mail fraud prosecution. If courts can determine that certain beliefs with regard to ghosts are objectively irrational and untrue, then what about religious beliefs (which are, in fact, objectively irrational and untrue)?I think that Sandefur is making an unsupportable distinction in calling some beliefs merely "irrational" while elevating others to the status of "religion". In Frazee v. Illinois Department of Employment Security the Supreme Court held that a particular belief needn't be dressed up in the trappings of a recognized religion to qualify as "religious". All that's really required is a person's "sincere belief" coupled with them saying "religion" and "no takebacks".
Granted I'm not a constitutional scholar, but it seems to me that a belief in ghosts, when accompanied by the appropriate legal incantations, can easily fit into the "religion" category. Ditto astrology, but probably not phrenology since the latter doesn't make any sort of supernatural claims. Kinda feel the void looking back, don't ya?