I believe that's the entire point of anything that is "de facto". It means that it goes on regardless of legislation. Of course the courts handle it; that's the whole point.
The whole reason anything got done to stop most of the racism in the South was that the South wasn't allowed to decide for themselves that racism was OK. Because if the could, they would have. And they did ignore the Civil Rights Acts, a lot. It was de facto discrimination.
And as for suppression of art and public expression, if the majority of people don't want to see penis murals everywhere, they shouldn't have to. If they do, go ahead. If the majority of people don't want bigotism and hatred to run rampant in their society, it shouldn't be allowed to. If they do, I bet it already is.
In the south, it was, and did. It took a while before the general opinion of the United States started to line up with the de facto state of affairs in the South. Like, over a century, if you want to start keeping track at the Civil War.
Oh, and the majority of the population in some areas of the South were slaves, who weren't "allowed" to decide anything. So the street runs both ways, I guess. It was wrong, it got better, the US didn't become a horrible dictatorship in the deal. That is the point I want to make.