There has been a lot of crowing in certain circles over some private correspondence between Cardinal Burke and a laywoman who wrote to ask him his opinion about the immemorial custom of women covering their heads at Mass. His Eminence is certainly a canon lawyer of the highest excellence, and one whose legal opinion about a matter of canon law would be entitled to great respect. Should he ever issue such a legal opinion addressing whether head coverings are still binding under canon law, I would welcome it, whatever his opinion was. I will even go so far as to say that I would likely be persuaded by it, not just considering his position but also because the excellence of his reasoning.
Yet is seems to me that the internet's favorite canon lawyer, Ed Peters, makes much more of this letter than is warranted. He and his supporters remind me of Vezzini in the movie The Princess Bride, whose principal argument is to declare any reality that contradicts his preconceived notions to be "inconceivable". If you haven't seen this movie, this will give you the flavor of it:
For my part, I will attempt to play the role of Inigo Montoya and say to Mr. Peters with respect to that letter, "I do not think it means what you think it means."
The woman who received this private correspondence from Cardinal Burke wrote to him after my posting of the canon law analysis by a canon lawyer who wished to remain unidentified (whom I dubbed for fun Unknown Canon Lawyer X) that the immemorial custom that women cover their heads at Mass is still obligatory under canon law. After some time, the Cardinal responded. The woman in question then emailed me and let me know that she had received a response from His Eminence, and without indicating what it was also told me she was going to send it to me. Later, I learned from another blogger that she had sent it to him, and then on Holy Thursday I learned that Ed Peters made relevant portions of Cardinal Burke's private correspondence public on the internet.
Bloggers Fr. Zuhlsdorf and Jimmy Akin have also written that the letter supports their previously stated positions. Jimmy Akin's post resorts to an "I told you so" effort, though his analysis is of a piece with his earlier efforts on the subject (which were rather easily refuted in the UCLX article).
At last I received a copy of the letter. Since it has already been made public by others I will reproduce it here. If you click on it, it will greatly enlarge:
The original UCLX article I found, and even now still find, to be persuasive. Cardinal Burke's letter makes no reference to the article, and I don't know if he has even read it. Be that as it may, what is more important in the light of His Eminence's private correspondence on the subject is to look carefully at what the letter says, and what it does not say, and still more to examine the very nature of the correspondence itself.
1. The Cardinal's letter is written in response to a question, the form of which is not public. It references "custom" but does not indicate the precise nature of the question. Custom can have a lay meaning or a very precise meaning according to canon law. The letter itself doesn't provide the context. Canon law has a variety of sources, including customary law, and is not merely made up of positive laws. Ed Peters knows this, yet his former analysis on the question really only covers positive law arguments.
2. Cardinal Burke, in his response, does not attempt to canvass canon law or liturgical law and give an authoritative answer. Of course he is a canon lawyer of great excellence, and if he gave such an authoritative opinion I would not be quick to dismiss it. Based upon the wording of the reply it is not clear. He may have meant exactly what Ed Peters says, or again it may not. In other words, Cardinal Burke may have done research, analyzed the relevant sources of the law, pondered the question, and came to the conclusion that head coverings were no longer required. Then again he may just have jotted a brief reply to a question based on what he thought off the top of his head. We simply don't know, because there is no attempt by His Eminence to give the argument. After all, in a reply to a nice lady who sends him greetings and asks a question that troubles her conscience, why would he? If a neighbor of Justice Alito asks him over the fence if he thinks the health care law is unconstitutional, and Alito makes a quick reply that it isn't, is that definitive? Would that be a basis for Justice Alito to skip research, read briefs, and hear argument on the case when it actually came before the Court? Obviously not.
3. The response was a private reply, and the Cardinal probably did not intend it for publication. I suspect he may have been trying to salve the conscience this laywoman who was concerned enough to write him. At least one other blogger I know of who received this letter before Peters did not post it out of respect for the privacy of the Cardinal.
As an aside, you may recall that Cardinal Burke gave an interview to Randall Terry last year that Terry made public without permission, and the Cardinal publicly rebuked him. One line of that statement seems particularly appropriate here, when the Cardinal stated "I gave the interview as a Bishop from the United States to encourage those engaged in the respect life apostolate, not as the Prefect of the Supreme Tribunal of the Apostolic Signatura."
Even Ed Peters, after giving his post the misleading title Raymundus locutus, causa finita, and further referring to the authority of the letter writer, admits that the note is not an “authentic interpretation” nor a formal sentence from the Signatura. As a person with a J.D. as well as a J.C.D., he knows that this letter does not purport to be, nor could it be, definitive.
And as far as we would all concede Cardinal Burke's legal acumen, I would point out that His Eminence would know exactly what legal effect the letter would have--or, more to the point, not have. Hence he is able to write a short note to a woman with a question of conscience, without writing a treatise.
With all due respect, Peters seems to me to be more concerned with making a splash than with finding out whether the immemorial custom of head coverings retains its obligatory character. He has never successfully refuted the argument of UCLX, either because he cannot or because he has not cared to make the effort. This letter is undoubtedly a public relations coup for him. And in many ways, the damage is already done. Yet I feel bound in conscience to post on this out of concern for the truth, even if only my seven readers see this post.
4. In the letter, Cardinal Burke says that veiling is "the expectation" in the Extraordinary Form, but is "not required" in the Ordinary Form. In some respects this strengthens the argument in the EF, in that His Eminence may be positing that it is in fact required in the Extraordinary Form, but is phrasing it politely to a private correspondent. If someone who thinks veiling is required wanted to spin the letter, I could imagine a post headline that reads "Cardinal Burke says women are expected to veil in the Extraordinary Form".
Regardless, there is no reason given by His Eminence for the distinction between the two forms other than the 1962 missal was promulgated when veiling was specifically dealt with under a Canon in the then-extant Code of Canon Law. But the new Code was promulgated in 1983, and since Pope Benedict XVI definitively concluded that the Extraordinary Form was never abrogated, if the new Code sufficed to nix the head covering requirement in one form it would nix it for the other. This adds to my gut feeling that His Eminence's purpose was to ease the mind of the writer and not to engage in a canonical explication.
When Cardinal Burke says that it "is not a sin" to assist at Mass without a veil, he may have reasons for this apart from the requirement or lack of requirement of veiling under the law. He does not say, and thus we can only speculate.
5. If Cardinal Burke issues a formal opinion as Prefect of the Apostolic Signatura on the subject, of course I would find it definitive. And obviously the Holy Father could settle the question himself.
But I will venture to say that, in the absence of a formal opinion, if His Eminence really believes that veiling is not required in the OF, or in either form, based on canon law, I would have to see his rationale before changing my mind that UCLX is correct. And I say that with enormous respect and deference to Cardinal Burke, both as a canonist and a Cardinal. If you have ever read this blog for a nanosecond you will know that I greatly esteem Cardinal Burke, as a man and a prelate. If he would write such a text refuting the UCLX argument, I will be the first to acknowledge it.
In the meantime, he has not so written. And those persons who make more of the letter than it is intended or able to state, have done real harm in muddying the waters. Though they would likely find that notion "inconceivable".