Parental rights or discrimination?

One of the fascinating cases argued before the US Supreme Court this week was Adoptive couple v baby girl.  Here's how Wikipedia summarizes the situation: 

"Dusten Brown and Christina Maldonado were engaged to be married. Brown was a member of the Cherokee Nation and serving in the United States Army at Fort Sill, Oklahoma and the father of one other child. Maldonado was a non-Indian single mother of two. In Jan. 2009, Maldonado became pregnant, On learning Maldonado was pregnant, Brown began to press her to go ahead and marry him, but in May 2009, Maldonado broke off the engagement by text message and cut all communications with Brown. A few months prior to the baby's birth, she began to work with an adoption attorney to place the child with Matt and Melanie Capobianco of South Carolina. Although Oklahoma law requires that an Indian tribe be notified, Maldonado's attorney misspelled Brown's name and provided an incorrect date of birth, so the tribe was not put on notice of the proposed adoption. After receiving permission from Oklahoma authorities, based in part on the misidentification of the child as Hispanic instead of Native American, the Capobiancos took the child to South Carolina. Four months after the birth of the child and just days from deployment to Iraq, Brown was served with notice of the proposed adoption. Brown signed the document, believing that he was relinquishing rights to Maldonado. Brown, once he realized what he was signing, immediately tried to retrieve the document, and failing that, contacted the Judge Advocate General at Fort Sill for assistance. Seven days after being notified of the proposed adoption by the Capobiancos, Brown had obtained a stay of the adoption proceedings under the Servicemembers Civil Relief Act and he deployed with his Army unit to Iraq." 

If you read the description, the case seems to be cut and dry and weighted towards the father.  However, if you listen to the audio of the argument, what you realize is that its more complicated.

The issue is that Brown did not pay any child support and did not participate in any way during pregnancy or birth of his child.  Under state law any other person would not have any custodial rights and could not have challenged the adoption,  Brown, however, is about 1% Cherokee, or as Breyer quipped, he had an ancestor around the time of Washington who was Cherokee, and so, he could invoke the Indian Child Welfare Act to block an adoption which no other father in his position could.

The issue before the SCOTUS is a matter of law and not of the specifics of this case.  On the one hand, the tone of the questioning particularly by Scalia and to a lesser extent Sotomayer and Ginsburg seemed to be inclined to view the situation as a biological father wanting to assert his rights and they seem to believe that a biological father's rights should outweigh that of the adoptive parents.  On the other hand, Alito, Breyer and Roberts were troubled by the fact that such a right was being given exclusively to an Indian parent and they wanted to know what triggers the right and what would happen in the case of a sperm donor, an absconding parent or even a rapist, if the only major consideration is biology and a drop of Indian blood, as Brown is arguing.

Here is scotusblog.com's analysis of the arguments.  I am with Kennedy, who at one point wished for Solomon.