The Reichskonkordat

Negotiations for a concordat covering the whole German Reich had run intermittently since the 1920s and had failed, principally over schools. They concluded in four months in 1933. Cardinal Eugenio Pacelli, the Secretary of State who had negotiated the Bavarian and Prussian concordats, led for the Holy See; Franz von Papen led for the German government.

What the church obtained was a schedule of guarantees. Freedom to profess and practise the Catholic religion, and to administer its own affairs within the limits of the law applying to all. The continuation of Catholic confessional schools and the establishment of new ones where parents asked. Protection for Catholic organisations engaged in religious, cultural or charitable work. The seal of confession and the free communication of bishops with their clergy and faithful. And the appointment of bishops by the Holy See, with the state given the opportunity to object on general political grounds before the appointment was published.

What the state obtained was in Article 32 and its neighbours. Clergy and members of religious orders were to abstain from membership of and activity for political parties, and the Holy See undertook to secure that. Catholic organisations were to confine themselves to non-political work. In a state that had just outlawed the other parties, that meant the withdrawal of a large and organised electorate from public life. The Centre Party dissolved itself on 5 July, fifteen days before signature.

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.