Breach Without Denunciation

The guarantees began to fail almost at once. Catholic youth organisations were absorbed or dissolved, confessional schools were closed by referendum campaigns and administrative pressure, the Catholic press was suppressed, and clergy were prosecuted in currency and morality trials designed to discredit them. In 1937 Pius XI set out the breaches in Mit Brennender Sorge, which begins from the concordat and lists what has been done against it.

The treaty was nevertheless not denounced by either side. For the Holy See it remained the only written instrument it could point to; for the German government it retained diplomatic value. That is the fact that makes the instrument awkward to assess and it is why the assessment has been argued for eighty years. The treaty gave the new government international standing at a moment when it had almost none, and it removed political Catholicism from the field. It also gave the church a document to litigate against, and Klaus Scholder and Guenter Lewy differ sharply on which of those weighed more and on how far the outcome was foreseen.

Its later life is the surprising part. The Federal Republic's Basic Law preserved treaties of the Reich, and in the Concordat Judgment of 1957 the Federal Constitutional Court held that the Reichskonkordat remained binding on Germany, while ruling that the states hold exclusive competence over school law and so cannot be compelled by the federal government to give effect to its school provisions. It is still in force.