From Saint Louis Catholic:
On January 12, 1930, the Sacred Congregation of the Council issued an instruction to all of the world’s Bishops, ordering them to address, from the pulpit, at least once a year, on the Feast of the Immaculate Conception, as appropriate, the subject of women’s modesty.
Over the past few years, a series of articles have been posted on-line, offering the opinion that women are no longer obliged to cover their heads while praying in church. The authors of three important postings on the issue include Rev. John T. Zuhlsdorf, Dr. Edward Peters, and Mr. Jimmy Akin.
In order to ascertain the truth of the matter, I decided to consult an out-of-state canonist on the question in 2007. The following is an excerpt from the opinion he gave me:
“From the point of view of qualifications, it appears that only Dr. Peters is licensed by the Church to give a professional opinion in Canon Law.
The first author, Rev. Zuhlsdorf, summarily dismisses the obligation of head-covering for women in church, stating, “[A]ccording to Church law you are not obliged.” He bases his conclusion on an apparent reductionist equating of the Code of Canon Law of 1983 with any other Church law. For him, because 1262, par. 2 of the Code of 1917 has been abrogated, the matter is “fertig,” “finished,” as the Germans would say: no obligation for women to cover their heads in church. In sum: can. 1262, par. 2 CIC 1917 is abrogated, therefore the obligation is non-existent.
The second author, Dr. Edward Peters is in agreement with Fr. Zuhlsdorf. He writes, “Leafing through my sources, it seems that the canonical requirement that women cover their heads in church is almost completely unattested until the appearance of the 1917 Code, specifically, in canon 1262 […] [T]here is no canonical requirement that women cover their heads in church today.” In sum: abrogation of obligation due to abrogation of can. 1262 CIC 1917.
The third author, Jimmy Akin, writes the most on the topic. First, he concludes that because “the revised liturgical documents do not contain it [mention of the obligation], and neither does the 1983 Code […] men no longer need to remove their hats as a matter of law, and women no longer need to wear them.” Second, he excoriates Catholics invoking the obligatory nature of the practice as making a “category mistake […] this matter did not belong to the category of custom prior to its abrogation. It was not a matter of custom but a matter of law. The 1917 Code expressly dealt with the subject, so it was not a custom but a law that women wear head coverings in church. That law was then abrogated.” Finally, he writes that “[O]ne cannot appeal to the fact that, when a law was in force, people observed the law and say that this resulted in a custom that has force of law even after the law dealing with the matter is abrogated.” In sum: no obligation for women to cover their heads in church because: 1) the liturgical texts of the Ordinary Form do not reference the obligation; 2) the legislative texts introducing the Ordinary Form “integrally reordered” the liturgy, thereby abrogating the norm; 3) the head-covering of women was a law, and not a custom, which was abrogated in 1983; and 4) the custom of head-covering of women cannot continue in time for the law mandating it has been abrogated.
After consideration of their opinions, and the conducting of some research, it appears that all three of the above authors are mistaken in holding that women are no longer obligated by canon law to cover their heads while in church – even when attending a celebration of Mass offered according to the liturgical texts of the Ordinary Form of the Roman Rite.
In conducting a proper analysis of the question, one must retrace the scriptural, patristic, and canonical history of the practice in order to determine properly its value. This brief analysis – by no means exhaustive – attempts to address the canonical issues raised by the three referenced authors.
To begin, in I Cor. XI, 5, St. Paul declares: “[E]very woman praying or prophesying with her head not covered, disgraceth her head: for it is all one as if she were shaven.” As it is not known when St. Paul confirmed the Jewish and Roman practice of women wearing a head covering when praying, it qualifies as a true immemorial custom, because the exact date upon which it became binding upon women in the Church is beyond the memory of anyone. As St. Paul declares that his teaching is not his own, the custom could even have been confirmed by Christ the Lord Himself. Cf. 1 Cor. XIV, 37.
St. John Chrysostom (cf. Homilies on First Corinthians, Homily XXVI), St. Ambrose (cf. Concerning Virgins, Book III), St. Augustine (cf. On Holy Virginity, n. 34; Epistola ad Possidium, n. CCXLV), and St. Thomas Aquinas (cf. II-IIae, q.169, a. 2, corp.; Super I Cor., cap.11, vers. 3), are all noteworthy for their elaborate treatments of the custom.
In A.D. 743, Pope St. Zachary I (A.D. 741-752) held a synod in Rome, whose Canon 3 reprises the teaching of St. Paul: “[A] woman praying in church without her head covered brings shame upon her head, according to the word of the Apostle […].” Cf. Mansi XII, 382.
Gratian, the Camaldolese monk-canonist, and often called the “father” of Canon Law, references the above texts in his unofficial collection (cf. C. 3, C.XXI, q.4; c. 19, C. XXXIII, q.5).
Almost two millennia of uninterrupted observance of the immemorial custom passed until the Sacred Congregation of Rites received from the Rev. Caesar Uberti, Master of Ceremonies of the Archbishop of Ravenna, the following dubium: “Whether women assisting at sacred functions […] are obliged to cover the head?”
On July 7, 1876, the Congregation replied: “Affirmative.” Cf. Ravannaten., July 7,1876, n. 3402, in Decreta Authentica Congregationis Sacrorum Rituum ex actis eiusdem collecta ejusque auctoritate promulgate, Romae (1898-1926), Typographia Polyglotta S. C. de Prop. Fide, Typis Polyglottis Vaticanis.
To be certain, inasmuch as this decision – comprehensive, formally particular, and equivalently universal in nature — was issued by the Sacred Congregation of Rites, the department of the Holy See possessing the jurisdiction to rule on matters touching upon the Sacraments, it constitutes, without doubt, a liturgical law. Cf. L. Choupin, Valeur des Decisions Doctrinales et Disciplinaires du Saint-Siège, (Beauchesne: Paris, 1913), pp. 96-103.
At this point in time, in 1876, de minimis, we have two existing laws mandating the wearing of head-covering by women when they attend sacred functions in a church. The first is an unwritten law, the immemorial custom, dating from the time of the Apostles. The second is a written law, a decree of the Holy See, requiring the same as the custom.
Understanding the concurrent existence of the two different laws is key to determining whether or not the Code of Canon Law of 1917 abrogated those two pre-existing laws by subsumption, or “elevation” of either the immemorial custom, or the liturgical law, into its canon 1262, when that Code came into effect.
In answer to this question, one must look to Canon 2 of the Code of Canon Law of 1917. This canon states [my rough translation]:
“The Code, for the most part, decrees nothing concerning the rites and ceremonies which the liturgical books, approved by the Church, order to be observed in the sacrosanct Sacrifice of the Mass, in the administration of the Sacraments and Sacramentals and other sacred actions. Wherefore all laws of the liturgy retain their force, unless some are expressly corrected in the Code.”
According to the common doctrine of canonists, there are three kinds of custom, or consuetudine in the Church: custom according to the law (“iuxta legem”), custom apart from the law (“ praeter legem”), and custom against the law (“ contra legem”). Cf. E. Regatillo, S.J., Institutiones Iuris Canonici, Vol. I, (Sal Terrae: Santander, 1951), p. 91, n. 107.
As Canon 1262, par. 2, of the Code of Canon Law of 1917 mandates the wearing of a head-covering on the part of women attending sacred functions when in church, the prior existing immemorial custom cannot at this point in time be said to be either contrary to the law (the new Code of 1917 coming into effect), or apart from the law, because both Code and immemorial custom shared the same exact object in their mandates: that women cover their heads when assisting at sacred functions.
This being the case, nothing in the introductory canons of the Code of 1917 confirm, beyond a reasonable, or even probable doubt, that the prior extant immemorial custom was abrogated upon the enactment of the Code of Canon Law of 1917. Canon 5 only addresses those customs which are reprobated or simply contrary to the new canons of the Code of 1917. Cf. G. Michiels, O.F.M., Normae Generales Juris Canonici, Ed. Altera, Vol. I, (Desclée et Socii: Paris, 1949), pp. 102-110. Canon 6, 1°, only addresses laws contrary to the Code; 6, 2°, only deals with laws which are integrally reordered by the Code, and as canon 2 specifies, liturgical laws are left untouched for the most part; 6, 4°, only confirms the immemorial custom and liturgical law of head-covering in effect up until the advent of the 1917 Code; 6, 6°, is not applicable even by juridical analogy, for the object of the immemorial custom is reprised in can. 1262, par. 2 CIC 1917.
Nothing in the canons of the Code of Canon Law of 1917 regulating custom (cf. cann. 25-30) indicate that the prior immemorial custom had been abrogated or obrogated with the advent of the new Code. To the contrary, can. 28 states that custom is the best interpreter of the law; and can. 30 explicitly states that unless a new law “expressly” makes mention, prior extant centenary or immemorial custom, which is not contrary to the new law, is not abrogated. It continues to remain in effect.
With the promulgation in 1969 of the Apostolic Constitution Missale Romanum by Pope Paul VI of happy memory, the terms of canon 30 are important to recall to mind: nowhere in the text of the Pope is mention made of any intent on the part of the Supreme Pontiff to abrogate the prior extant centenary or immemorial custom iuxta legem of the Roman Rite as celebrated for centuries according to the Missal of Pope St. Pius V.
It is likely for this reason that Pope Benedict XVI was easily able to declare that the ancient form of the Roman Rite, qua custom, has never been abrogated. Cf. Paul VI, Apost. Const. Missale Romanum, AAS 61 (1969). pp. 217-226; Pope Benedict XVI, Litt. Apost. Summorum Pontificum, Art. 1 (b).
The same rationale requiring express mention of the intent to abrogate immemorial custom, and its lack of any promulgation in any controlling liturgical texts concerning the Ordinary Form of the Roman Rite, militates in favor of the opinion that the immemorial custom of women covering their heads when praying in church was never “integrally reordered” with the promulgation of the new liturgical laws – something which, by necessity, had it happened, could not have permitted the Roman Pontiff to decree that the Extraordinary Form had never been abrogated.
With respect to the new Code of Canon Law of 1983, canons 2 and 5 reprise substantially those of the Codex of 1917: “liturgical laws in force until now retain their force unless one of them is contrary to the norms of the Code.” As there simply is no mention in the new Code of 1983 of the object treated by canon 1262, par. 2, of the Code of 1917, one cannot say that either the ancient liturgical law, or immemorial custom iuxta legem, is contrary to the Code: Aristotle and the Aquinate would have serious fits in hearing of those elementary mistakes in logic.
Regarding canon 6, par. 1, 1-4°° of the new Code, it does not appear that any of the subsections of that canon apply to the present question, account taken of all of the above.
Concerning the argument of how a contrary custom of women not wearing any head-covering when praying in church has arisen since 1969, it does not appear to take into account the non-fulfillment of the conditions stipulated by the Code of Canon Law of 1983 regulating when a contrary custom may lawfully arise in the Church. Specifically, it appears that two essential conditions have not been met. First, in order to introduce a contrary custom, a community must observe the new custom with the intention of being obligated by its object. Cf. can. 25 CIC 1983. Regarding the non-observance on the part of those women who do not wear hats or veils in church, whether assisting in the Ordinary or Extraordinary Forms of the Roman Rite, it appears that they do not intend to bind themselves to a new obligation of not wearing a hat or veil. In the humble opinion of this author, it does not appear that the vast majority of women have externalized an intention to be bound by their choice of not wearing a veil or hat. Obligatio non est imponenda nisi certo de ea constet. Therefore, one cannot conclude that a contrary custom not to wear any head-covering has arisen.
One last point: an additional argument of authority can be raised. According to UPI, and the Atlanta Journal, on June 21, 1969 – after the new Roman Missal had been promulgated by Pope Paul VI – then Msgr. Annibale Bugnini, the prelate appointed by the Pope to draft the rubrics of the new Missal, issued a statement to the Press specifying that at no time had the requirement of head-covering been abrogated: “[T]he rule has not been changed.”
In response to the arguments raised by the three gentlemen as referenced above, I offer the following.
Regarding the one given by Rev. John Zuhlsdorf and Dr. Edward Peters, namely, that because the present Code is completely silent on the matter of head-covering of women during prayer in church, in comparison to the prior Code of 1917, I would like to recall the opinion of a consultor which was accepted by the Sacred Congregation of the Council, in una Causa Wratislav., dated January 10, 1920: [my rough translation]: “Most absurd should be held the opinion of those who want general customs of which the Code is silent to be abrogated by operation of can. 6, 6° […].” Cf. AAS, XII, 1920, p. 45. This rule applies to custom also praeter legem, according to the mind of the consultor, arguendo the hypothesis that the custom mandating that women are to keep their heads covered when praying in church is praeter legem, and not iuxta legem.
As for Jimmy Akin’s opinions, the following can be submitted. His first argument is strongly indicative of a limited understanding on his part of the liturgical law of the Roman Catholic Church, which body of law in fact encompasses far more than just the texts of the Ordinary Form of the Roman Rite, or the Code of Canon Law of 1983. Second, there exists a third category of custom, custom iuxta legem, or, “according to the law,” which is indeed the best interpreter of the law (cf. can. 27 CIC 1983). Regarding his third argument, if an immemorial custom iuxta legem is abrogated by a new written law, it can only be according to the strict conditions of cann. 30 CIC 1917 and 28 CIC 1983, that is, only if express mention is made in the new law that is abrogating even immemorial or centenary custom. As Mr. Akin does not demonstrate which recent liturgical or codical law expressly mentions an intent to abrogate even the instant immemorial custom under consideration, his analysis and conclusion of the question appear to be gravely flawed.
In conclusion, for all of the above reasons, the distinct obligation encapsulated in pre-existing universal liturgical law and immemorial custom iuxta legem that women cover their heads when praying in church remains in effect universally, whenever they attend any sacred function celebrated according to the Ordinary or Extraordinary Form of the Roman Rite in church.”